Antonin Scalia's book review of Law's Quandary
By Robert S. Sargent, Jr.
web posted November 14, 2005
First Things is a journal published by The Institute on Religion and Public Life "…whose purpose is to advance a religiously informed public philosophy for the ordering of society." In the November issue, Justice Antonin Scalia wrote a book review of Steven D. Smith's Law's Quandary. It is worth reviewing the review as Scalia is always interesting (his dissents are the best) and always informative for his take on jurisprudence. (The review can be read in its entirety at www.firstthings.com.)
What is "law's quandary?" Scalia quotes Smith: "Since at least the time of Holmes, lawyers and legal thinkers have scoffed at the notion that 'the law' exists in any substantial sense…Law is not a 'brooding omnipresence in the sky.'…At the same time,…our actual practices seem pervasively to presuppose some such law…" As Scalia writes: "Smith proceeds to discuss why the broad variety of twentieth-century jurisprudential movements -- sociological jurisprudence, legal realism, legal process, law and policy (including law and economics), law and society, law and philosophy, critical legal studies, law and literature, feminist jurisprudence, critical race theory, legal pragmatism, and, oh yes, law and textualism -- try but fail to resolve this quandary, try but fail to explain 'how the law makes sense without 'the law.'"
Scalia starts taking Smith apart: "As interesting as Smith's analysis is, it essentially addresses a legal system that is now barely extant, the system that Holmes wrote about: the common law. That was a system in which there was little legislation, and in which judges created the law…Some theory was necessary to justify the power of judges (as agents of the king) to make law through common-law adjudication. That theory was the 'brooding omnipresence' of an unwritten law that the judges merely 'discovered.'" Scalia goes on: "But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people's representatives. Such a system is quite incompatible with the making (or the 'finding') of law by judges -- and most especially by unelected judges."
In other words, "The contradictions that Smith finds in a system of common-law-sans-brooding omnipresence do not exist in a system of enacted law, properly applied." The key phrase, of course, is properly applied. Scalia talks about how the contradictions actually do exist under our Constitution (when not properly applied): "One such means [of converting democratically enacted laws] is simply reading the text to say what it does not say." For example, "…the judges…decide, in common-law fashion, what liberties are fundamental." "Another means consists of asserting that a text does not retain the meaning it had when it was adopted but, rather, changes meaning to conform with current practices, or current attitudes, or whatever a majority of the justices thinks best."
The consequence of applying the contradictions to our Constitution, is that many social policy issues are heard and decided in our courts when they shouldn't be: "…whether states can criminalize abortion, whether faith-based initiatives are permissible, whether public universities can adopt affirmative-action programs, whether a state military college can admit only men, whether there is a right to assisted suicide -- are all questions that only arise if text is distorted or text is regarded as having an evolving meaning."
While Scalia points out that giving the words of our Constitution their normal meaning eliminates the "Quandary," Smith rejects "textualism:" "Merely giving English words their normal meaning would not enable law to perform its 'more ambitious functions,' such as 'establishing social policy.'"
Scalia: "But in a democracy, it is not the function of law to establish any more social policy than what is fairly expressed by legislation, enacted through prescribed democratic procedures. It troubles Smith, but does not at all trouble me -- in fact it pleases me -- that giving words of the Constitution their normal meaning would 'expel from the domain of legal issues…most of the constitutional disputes that capture our attention,' such as 'Can a macho military educational institution dedicated to what is euphemistically called the "adversative" method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?' If we should read English as English, Smith bemoans, 'these questions would seemingly all have received the same answer: 'No law on that one.'" Not only does Scalia answer the question of "Quandary," but of Constitutional jurisprudence: "That is precisely the answer they should have received." 
Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.
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