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Historical Anomalies in Administrative
Law
by Antonin Scalia*
Introduction
Some social philosopher observed that the popularity of
art, almost all forms of art, as a subject of social conversation
is in large part attributable to the fact that there are
no demonstrable rights and wrongs, so that all participants
in the conversation, the quick and the slow, the informed
and the ignorant, can participate on a basis of apparent
equality and with minimal risk of embarrassment. "N'aimez-vous
pas Brahms? Ah well, de gustibus non est disputandum."
I hope the science of law is not quite so latitudinarian,
but sometimes I worry about it. "Ah, you think the
right to play Dungeons and Dragons in the privacy of your
own bedroom is embraced within the 3:00 PM penumbra of
the First Amendment? Well, I disagree, but there's no
accounting for constitutional tastes."
History, however--even legal history--is not at all like
that. It is much more possible to be unquestionably, embarrassingly,
flat-out wrong. If, for example, I were to assert that
the writ which Lyndon Johnson was reputed, on one occasion,
to have told an aide to run and fetch from some federal
judge--a writ of fixitatus--if I were to assert that such
a writ never existed, but was a creation of Johnsonian
fancy and the Imperial Presidency, I might well be proven
wrong. My friend and former colleague at the University
of Chicago, John Langbein, unlike me a real historian,
might bring forward a roll-book of the County Court in
Lancashire, demonstrating beyond cavil (as we say) that
the writ of fixitatus was common as late as 1323.
In the face of such misgivings, however, I am resolved
to press forward--or perhaps it is backward--into the
realm of history. I have selected two juris-historical
anomalies (or at least what have always seemed to me anomalies)
in the field of administrative law. They are unrelated,
except that they both pertain to that field, and except
that they both suggest a lesson for the modern student,
or indeed the modern judge, which I will try to make clear
at the conclusion of my remarks.
The History of Sovereign Immunity
The first historical curiosity pertains to the doctrine
of sovereign immunity, which has in our federal tradition--particularly
from the mid- 19th to the mid-2Oth century--been a substantial
obstacle to suits against administrative officers. In
fact, the "canned" Justice Department brief
urging dismissal of the suit for judicial review of administrative
action on sovereign immunity grounds remained a common
phenomenon until 1976, when the Administrative Procedure
Act was amended clearly to exclude that ground in most
instances.
I always found that peculiar, since the fountainhead of
American constitutional law was precisely a suit against
a federal official--and a very high one at that--and did
not think it necessary even to mention the issue of sovereign
immunity. I refer, of course, to Marbury v. Madison. The
opinion begins:
At the last term, on the affidavits then read and filed
with the clerk, a rule was granted in this case, requiring
the secretary of state to show cause why a mandamus should
not issue, directing him to deliver to William Marbury
his commission as a justice of the peace for the county
of Washington, in the district of Columbia.
No cause has been shown, and the present motion is
for a mandamus. In the course of his opinion, Chief Justice
Marshall does, of course, discuss at some length whether
a mandamus can issue to so important an official as the
Secretary of State--but the discussion is strange to the
modern ear, because it nowhere seeks to ask and resolve
(as we moderns would) whether the suit is in reality one
against the United States, though nominally against James
Madison.
The explanation of this anomaly is quite simple: At the
time of Marbury v. Madison there was no doctrine of domestic
sovereign immunity, as there never had been in English
law. As Marshall notes in passing in the portion of his
opinion establishing the proposition that there is no
right without a remedy: "In Great Britain, the king
himself is sued in the respectful form of a petition,
and he never fails to comply with the judgment of the
court."
Of course there was in England, as there was in all civilized
countries, a doctrine of foreign sovereign immunity, where
under no sovereign could be sued in the courts of another
sovereign without its consent. And it is the transposition
of that quite different doctrine on American soil which
ultimately leads to the "canned" Justice Department
brief and the use of sovereign immunity as a means of
restricting judicial review of administrative action.
The process of that development is interesting.
It begins with a case that antedates Marbury, decided in
1793, when John Jay was Chief Justice. Chisolm v. Georgia
held that the constitutional grant of Supreme Court jurisdiction
over controversies between a "State and a citizen of
another State" conferred jurisdiction--despite the
doctrine of foreign sovereign immunity--over a civil action
brought against a state (and therefore unconsented to) in
the Supreme Court. As you know, the decision provoked a
furor, and at its very next session the Congress almost
unanimously proposed the Eleventh Amendment, which precluded
suit in federal courts against a state by citizens of another
state. In 1821, twenty-eight years after Chisolm and eighteen
years after Marbury, Chief Justice Marshall, in Cohens v.
Virginia assumed that this doctrine of immunity against
suit in federal courts applied to the United States as well.
It was, he said "the universally received opinion .
. . that no suit can be commenced or prosecuted against
the United States; that the judiciary act does not authorize
such suits." [19 Wheat. At 4l]. The doctrine of domestic
sovereign immunity for the United States has been with us
ever since.
[I cannot avoid noting, parenthetically, the profound envy
that my colleague Judge Ginsburg and I have of Justice Marshall's
ability to decide such an important issue in four words:
"the universally received opinion." A renewed
acceptance of that practice would certainly solve the problem
of over-long appellate opinions. It seems to me most dubious,
moreover, that the opinion in question was in fact "universally
received." It is assuredly incompatible with the opinion
of Justice Wilson twenty-eight years earlier in Chisolm,
which said:
A state, like a merchant, makes a contract. A dishonest
state, like a dishonest merchant, wilfully refuses to
discharge it: the latter is amenable to a court of justice:
upon general principles of right, shall the former, when
summoned to answer the fair demands of its creditor, be
permitted, Proteus-like, to assume a new appearance, and
to insult him and justice, by declaring I am a sovereign
state? Surely not.[1]2 Dall. at 455.
End digression. Whether or not Marshall's assumption
of federal sovereign immunity was influenced by the Eleventh
Amendment (the judiciary act is assuredly silent on the
subject), it is clear--and probably unfortunate-- that the
subsequent extension of federal sovereign immunity to suits
against federal officers (as opposed to suits against the
United States eo nomine) was influenced by the Eleventh
Amendment cases. It had been established in a sharply contested
series of cases in the early 19th century that, in determining
whether a state was party to a suit, the court would not
look beyond the record. If a state was not named, the Eleventh
Amendment did not apply. If that rule had held, sovereign
immunity as an obstacle to judicial review of federal administrative
action would never have appeared. That is the reason, by
the way, that mandamus and other suits against officers
of the most venerable federal departments--tax collectors
of the Treasury, land commissioners of the Department of
the Interior, and postmasters general of the Post Office
Department--have long been allowed in circumstances that
would, in other contexts after the 1880s, have encountered
the bar of sovereign immunity. But in fact the rule that
if the state was not named the state was not sued did not
hold--as it logically could not, given the purposes of the
Eleventh Amendment. Since a state can only be administered
by its officers, plenary power over them amounts to plenary
power over the state itself. It makes little difference
whether the state is ordered to pay over funds wrongfully
held in its treasury, or whether the governor is ordered
to do so. As Justice Miller said in one of the cases, decided
in 1883, firmly establishing the abandonment of the earlier
rule:
No money decree can be rendered against the State, nor
against its officers, nor any decree against the treasurer.
. .
If any branch of the State government has power to give
plaintiff relief it is the legislative. Why is it not
sued as a body, or its members by mandamus, to compel
them to provide means to pay the State's indorsement?
The absurdity of this proposition shows the impossibility
of compelling a State to pay its debts by judicial process.
[2]Cunningham v. Macon & Brunswick Railroad Co., 109
U.S. 446, 457 (1883).
The new rule governing Eleventh Amendment cases was unthinkingly
applied to federal sovereign immunity cases as well, the
courts seeking to divine when it was that a suit nominally
against a federal official was in reality (whatever that
means) against the United States. Of course the transposition
makes no sense--just as the original extension of sovereign
immunity as such made no sense. The incompatibility is particularly
evident--and wryly amusing--in mandamus cases. For mandamus
was historically a writ issued by the King's judges, on
behalf of the King, to compel his officers throughout the
country to perform their assigned functions. The whole theory
of the action was that--far from being a suit against the
sovereign--it was a suit by the sovereign, at the instance
(or on the relation) of a private party. Hence, such actions
were traditionally styled Rex ex relatione (ex rel.) John
Smith (the plaintiff) v. John Doe (The royal official).
That practice has persisted in our federal courts--though
with an inconsistency that matches the theoretical confusion
that the doctrine of sovereign immunity has created. Thus,
in the single subject area of suits to compel the issuance
of land patents, you will find almost all possible permutations:
A suit captioned United States v. The Commissioner--with
no "ex rel." in the title, but the plaintiff referred
to in the body of the opinion as "the relator."
[3]72 U.S. (5 Wall.) 563 (1866). A suit captioned McGarrahan
v. The Secretary (The Secretary v. McGarrahan on appeal),
in which McGarrahan is referred to as "the relator."
[4]76 U.S. (9 Wall.) 298 (1869). A suit entitled In re Emblem,
in which the plaintiff is referred to as "the petitioner."
[5]161 U.S. 52(1896). And a suit entitled United States
ex rel. Frost v. Ballinger (vice-versa on appeal), in which
the plaintiff is referred to as "the relator."
[6]216 U. S. 240 (1910). [Those of you who have occasionally
wondered, as I have, when and why "United States ex
rel." appears in the caption of a mandamus case can
cease wondering. The answers are "sometimes" and
"no particular reason."]
But historical ironies aside, the rule that a suit against
an officer can be a suit against the United States made
no sense because the purpose to be served by the rule of
federal sovereign immunity (if any) was not the purpose
to be served by the Eleventh Amendment. The purpose of the
latter was the preservation of a sound federalism. The purpose
of the former (if Marshall was correct that the federal
judiciary act did not envision unconsented suits against
the United States) was, if anything beyond mere protection
of the federal fiasco, the preservation of a sound separation
of powers. What is needed to protect the states from the
federal courts, and what is needed to protect the federal
executive from the federal courts, is not necessarily identical.
The historical developments I have described left us with
a body of law that long served (and in a few isolated instances
serves still) as an irrational impediment to judicial review.
My objection, I hasten to add, is not to the impediment
but to the irrationality. Which brings me back--as all things
do--to Marbury v. Madison. Although, as I have said, Chief
Justice Marshall did not discuss sovereign immunity--either
the "universally received" existence of that doctrine,
or its conceivable application to a suit against an officer
had not occurred to him--he did address, and at some length,
the considerations of separation of powers which the doctrine
primarily (and most inefficiently) serves. We would have
been better off, I think, if that sensible, direct approach
had subsisted.
The Birth of the Independent Regulatory Agency
But it seems strange to discuss administrative law in the
context of Marbury v. Madison. The real birth of the administrative
state in this country dates from the New Deal--and it is
in that era that my next historical vignette is set: I want
to unburden myself of some historical reflections upon the
famous case of Humphrey's Executor v. United States, the
case that marks the birth of what has come to be known academically
as the independent regulatory agency, and derogatorily as
the headless fourth branch of government.
Humphrey's Executor was decided in 1935. Nine years earlier,
in an opinion written by a former President of the United
States (Chief Justice Taft) for a court six of whose members
were the same, the Court had decided that the Constitution's
grant to the President of the power to appoint officers
implied the power to remove them; and that that power could
not be constrained by a statute purporting to require the
advice and consent of the State for removal of postmasters.
That earlier case, Myers v. United States, was one of the
landmarks of American constitutional law, and had been treated
as such. It was argued in December of 1923 and then reargued
in April of 1925; the opinion issued more than a year and
a half later, in October of 1926. The opinion for the Court
was 70 pages; Justice Holmes filed a one-page dissent; Justices
McReynolds and Brandeis, who were two of the six Justices
still on the Court when Humphrey's Executor was later decided,
filed dissents of 61 and 55 pages, respectively.
At issue in Humphrey's Executor was the removal not of a
postmaster but of a commissioner of the Federal Trade Commission.
The statute in question did not condition removal upon Senate
consent, but provided that commissioners could be removed
by the President "for inefficiency, neglect of duty,
or malfeasance in office." Notwithstanding that provision,
President Franklin Roosevelt had written to Commissioner
Humphrey demanding his resignation, on the ground "that
the aims and purposes of the Administration with respect
to the work of the Commission can be carried out most effectively
with personnel of my own selection," and that "I
do not feel that your mind and my mind go along together
on either the policies or the administering of the Federal
Trade Commission." When Humphrey refused to resign,
President Roosevelt removed him. Suit was brought by his
widow in the Court of Claims to recover back pay. That court
certified to the Supreme Court the questions whether the
FTC Act prevented his removal without cause and, if so,
whether it was constitutional.
The case was argued in the Supreme Court on May 1, 1935.
On May 27, 1935, the Court issued a unanimous 14-page
opinion--only six pages of which were devoted to the constitutional
issue. Myers was distinguished as follows:
The office of a postmaster is so essentially unlike the
office now involved that the decision in the Myers case
cannot be accepted as controlling our decision here. A postmaster
is an executive officer restricted to the performance of
executive functions. He is charged with no duty at all related
to either the legislative or judicial power . . .
The Federal Trade commission [by contrast] is an administrative
body created by Congress to carry into effect legislative
policies embodied in the statute in accordance with the
legislative standard therein prescribed, and to perform
other specified duties as a legislative or as a judicial
aid. Such a body cannot in any proper sense be characterized
as an arm or an eye of the executive. Its duties are performed
without executive leave and, in the contemplation of the
statute, must be free from executive control. In administering
the provisions of the statute in respect of 'unfair methods
of competition'--that is to say in filling in and administering
the details embodied by that general standard--the commission
acts in part quasi-legislatively and in part quasi-judicially.
In making investigations and reports thereon for the information
of Congress under § 6, in aid of the legislative power,
it acts as a legislative agency. Under § 7, which authorizes
the commission to act as a master in chancery under rules
prescribed by the court, it acts as an agency of the judiciary.
To the extent that it exercises any executive function--as
distinguished from executive power in the constitutional
sense--it does so in the discharge and effectuation of its
quasi-legislative or quasi-judicial powers, or as an agency
of the legislative or judicial departments of the government.
[295 U.S. at 627-28.] That most eloquent of modern Justices,
Justice Jackson, has described the Court's pronouncement
of a "quasi-legislative" or "quasi-judicial"
agency as follows:
Administrative agencies have been called quasi-legislative,
quasi-executive or quasi-judicial, as the occasion required,
in order to validate their functions within the separation-of-powers
scheme of the Constitution. The mere retreat to the qualifying
'quasi' is implicit with confession that all recognized
classifications have broken down, and 'quasi' is a smooth
cover which we draw over our confusion as we might use
a counterpane to conceal a disordered bed. [7]FTC v. Ruberoid
Co., 343 U.S. 470, 487-88 (1952) (Jackson, J. dissenting).
In any case, once having found the FTC to be part
(or quasi-part) of the legislative and judicial branches,
the rest was simple. The opinion went on, not to respond
to concerns of separation of powers, but to appeal to the
separation of powers as demanding that the President not
be permitted to interfere with the tenure of these quasi-legislators
and quasi-judges.
My purpose here, however, is not to dissect the reasoning
of Humphrey's Executor, but to suggest what light historical
considerations may cast upon its genesis, and, perhaps,
upon its relevance to modern administrative law. As to genesis:
As I noted earlier, Humphrey's Executor was argued on May
1, 1935. On May 2 and 3, 1935 the Court heard argument in
Schechter Poultry Corp. v. United States, the electrifying
case that proclaimed the National Recovery Act unconstitutional.
Both opinions were handed down the same day, and appear
separated by some 50 pages in Volume 295 of the United States
Reports. If I were an historian, and thus had license to
speculate upon motivation, I would say that, quite obviously,
the same mistrust of New Deal executive freewheeling aroused
by the truly sweeping NRA proposals addressed in Schechter
colored the Court's approach to the companion case as well.
Schechter as befitted its monumental immediate importance,
was written by the Chief Justice--at that time Chief Justice
Hughes. Humphrey's Executor however, was written by Justice
Sutherland--generally regarded with Justice McReynolds as
the most implacable opponent of the New Deal.
In any event, there was more than merely political context
to join the two cases. Several legal considerations made
it appropriate, if not inevitable, that the assertions of
presidential power in Schechter and Humphrey's Executor
should stand or fall together. Schechter struck down the
NRA, you will recall, on the grounds of unconstitutional
delegation of legislative power. The NRA 's grant of presidential
power to prescribe what were called "codes of fair
competition" for all industries was so unconstrained
by any "standards of legal obligation" that it
amounted to an abdication of congressional responsibility.
But come to think of it, the Federal Trade Commission Act
gave that agency authority to prevent "unfair methods
of competition"--and while prescribing fair competition
and preventing unfair competition may not be quite the same
thing, as far as the existence of a judicially discernible
standard is concerned there is not an obvious difference
between the two. The National Recovery Act itself apparently
thought so, since it specifically provided that any violation
of a code of fair competition under the NRA would automatically
be an unfair method of competition under the FTC Act. Could
it be, then, that in striking down the NRA the Court would
have to call into question the constitutionality of the
(by that time) 30-odd-year old Federal Trade Commission
Act as well?
Well, in fact the Court in Schechter distinguishes the
FTC Act--on grounds whose adequacy I do not intend to
discuss here. But adequate or not, the point is that it
is infinitely easier to reconcile with Schechter the proscription
of "unfair methods of competition" by a "quasi-legislative"
agency immune from the doctrine of unconstitutional delegation.
One last historical reality about the case. On the basis
of authority generally thought to rest upon Humphrey's Executor,
rulemaking--by any agencies of government--has come to be
referred to as "quasi-legislative" activity. In
fact, however, Humphrey's Executor had nothing to do with
rulemaking power, since the FTC had no such power (or at
least did not assert any) in 1935. Only a decision of my
court in 1973 found that the agency had such authority,
unexercised to these many years. [8]National Petroleum Refiners
Ass'n v. FTC, 482 F2d 672 (D.C. Cir. 1973). (The decision
was not universally thought to be correct, but we will never
know, since shortly thereafter Congress amended the FTC
Act to confer rulemaking power explicitly. [9]See 15 U~S.C.
§57a, enacted in 1975.) The "quasi-legislative"
function the Court was referring to in 1935 was the FTC's
task of "filling in and administering the details"
of the "unfair methods of competition" standard--presumably
in the course of its adjudications--and the statutory duty
"to make certain investigations at the instance of
Congress, to report its findings to Congress, to make special
and annual reports to Congress and to submit recommendations
for additional legislation." [10]295 U.S. at 607. Its
"quasi-judicial" functions, by the way, consisted
not only of adjudicating unfair trade practice cases, but
also of implementing the following provision of § 7
of the FTC Act--now rarely used, though it remains in the
United States Code:
In any suit in equity brought by or under the direction
of the Attorney General as provided in the antitrust Acts,
the court may, upon the conclusion of the testimony therein,
if it shall be then of opinion that the complainant is
entitled to relief, refer said suit to the Commission,
as a master in chancery, to ascertain and report an appropriate
form of decree therein . . . [T]he court may adopt or
reject such report, in whole or in part, and enter such
decree as the nature of the case may in its judgment require.
[11]15 U.S.C.§47 (1982).
As is well
known, most of the anti-New Deal decisions of the Sutherland-McReynolds
court have been relegated to the judicial dust-bin. About
two years after Humphrey's Executor in West Coast Hotel
Co. v. Parrish, [12]300 U.S. 379 (1937) the Court, with
Justices Sutherland, McReynolds, Van Devanter and Butler
dissenting, executed the "switch in time" that
"saved nine"--the first of a series of decisions
that retreated from previously pronounced doctrines obstructing
New Deal programs. Some have thought (though I personally
doubt it) that the flow of that change has even engulfed
Schechter so that that case would be decided differently
today. But curiously enough, Humphrey's Executor's six-page
constitutional pronouncement on a matter of central importance
to the structure of government--and six pages concededly
contrary to the much more extensive analysis in the pre-New
Deal case of Myers nine years earlier -seems to have grown
rather than diminished in its stature, or at least in
its consequences. I say that not only because it has been
assumed to be applicable to agencies which (unlike the
1935 FTC) do not act as masters in chancery for the judiciary
or conduct investigations for the explicit purpose of
recommending legislation to the Congress; but also because
the holding of the case has been expanded to embrace its
entire rationale. That rationale is, to be sure, that
a proper understanding of the separation of powers must
prevent the President from controlling the policies of
an agency established by Congress as a "quasi-legislative"
or "quasi-judicial" entity. All the case narrowly
held, however, was that the President could not dismiss
a commissioner unless the statutorily prescribed condition
of "inefficiency, neglect of duty or malfeasance"
was met. It did not hold that neglect of duty could not
consist of a refusal to follow a particular policy duly
prescribed by the President. The facts of the case did
not even present that situation, since Roosevelt told
Humphrey to leave simply because he had no confidence
in Humphrey.
Yet half a century later, in an era when there is not
a dime's worth of difference between the business of such
"independent" regulatory agencies as the FTC
and such executive branch agencies as the Food and Drug
Administration, the National Highway Transportation Safety
Board, and the Environmental Protection Agency; when post-New
Deal (and indeed anti-New Deal) innovations such as a
largely independent administrative judiciary, formalized
procedures for rulemaking, and expanded judicial review,
have eliminated or reduced the threat of executive arbitrariness
which the Schechter-Humphrey's Court feared; Humphrey's
Executor continues to induce the Executive to leave the
policy control of the independent agencies to congressional
committees, and fastidiously to avoid any appearance of
influence in those entities. That may indeed still be
the law; and there may conceivably still be sound policy
grounds to justify it. But to assume that with such facility,
as the prevailing legal culture seems to have done, is
to wrench the case out of the context of the times that
gave it birth.
Conclusions
And that suggests the concluding lesson with which I rashly
promised to bind the two parts of this talk together.
It is this: The study of law, properly conceived, cannot
be separated from a study of the law's history. Without
that perspective, today's decision is an isolated point
on a graph, with no indication where the line progressing
from it will proceed. It is only the decisions of the
past that have led us to where we are which, understood
in their historical context, can establish a trajectory
permitting us to project the past of the law in the future--whether
forward, along a continuing line of development, or in
apparent retreat, back to a continuity from which today's
decision is an irrational and therefore endangered departure.
It has been a concern of mine that we increasingly fail
to convey this sort of knowledge in our law schools. I
refer to the need, not for more courses in legal history
as such (though that is all to the good); but for more
attention to historical development within the substantive
courses themselves--whether constitutional law or contracts,
administrative law or torts. So much current law must
be mastered that the tendency is irresistible to dispense
with the dead and superseded cases of the past. But without
them, as I say, we can convey no genuine understanding
of the cases of the present. No more than we can convey
the concept of a river by displaying a bucket of water
from the Potomac.
And the neglect, I fear, extends far beyond the law schools,
and into the chambers of those guardians of the law, the
judges themselves. At least into my chambers. I confess
that I have taken real delight in the imposed necessity
of rummaging about in old and forgotten cases to prepare
this talk. It is a luxury I rarely enjoy--sacrificed to
the more efficient alternative of sending a law clerk
to look up the latest precedent so that I may proceed
more promptly to the next set of briefs. Our modern judicial
culture even displays a sort of anti-historical bias in
the accepted rule for the citation of authority: Cite,
if possible, a case decided yesterday. Never cite Hadley
v. Baxendale or Marbury v. Madison if a more current decision
affirming the same proposition is available. Next week
that decision in turn will be replaced by citation to
today's case. The result is a decisional literature that
has all the historical underpinnings of the morning newspaper.
In the course of preparing these remarks, I was struck
with the much greater historical sense of the old opinions
I revisited. For one of the most wide-ranging, consider
the following excerpt from Justice Wilson's 1793 opinion
in Chisolm v. Georgia. He is discussing why, in his view,
no doctrine of domestic sovereign immunity exists:
In ancient Greece'. as we learn from Isocrates', whole
nations defended their rights before crowded tribunals
. . .
Columbus achieved the discovery of that country which'.
perhaps, ought to bear his name. A contract made by Columbus
furnished the first precedent for supporting, in his discovered
country, the cause of injured merit against the claims
and pretensions of haughty and ungrateful power. His son
Don Diego wasted two years in incessant'. but fruitless'.
solicitation at the Court of Spain'. for the rights which
descended to him, in consequence of his father's original
capitulation. He endeavored'. at length, to obtain, by
a legal sentence, what he could not procure from the favor
of an interested monarch. He commenced a suit against
Ferdinand, before she Council which managed Indian affairs,
and that court'. with integrity which reflects honor on
its proceedings, decided against the King'. and sustained
Don Diego's claim.
Other states have instituted officers to judge the proceedings
of their Kings. Of this kind'. were the Ephori of Sparta;
of this kind also'. was the mayor of the palace'. and
afterwards, the constable of France.
. . . When the Spaniards of Arragon elect a King'. they
represent a kind of play'. and introduce a personage whom
they dignify by the name of Law'. to Justiza'. of Arragon.
This person they declare, by a public decree'. lobe greater
and more powerful than their king'. and then address him
in the following remarkable expressions. "We'. who
are of as great worth as you, and can do more than you
can do, elect you to be our King'. upon the conditions
stipulated. But between you and us, there is one of greater
authority than you."[13]
[13]Dall. at 458-59. And so forth, through Blackstone
and early English law. I have no idea whether all this
stuff is true--though Wilson, one of the most influential
participants in the Constitutional Convention, was "a
legal scholar, widely recognized as the most learned and
gifted in the nation."[14] McCloskey, James Wilson
in L. Friedman & E Israel, The Justices of the United
States Supreme Court 1789-1969 at 79. (He died, by the
way, bankrupt. As one historian describes his final days:
"Even while he rode circuit as a Justice of the Supreme
Court, clamoring business associates and creditors pursued
him, threatening scandal and debtors' prison. 'Hunted
like a wild beast' (Smith 387) he hid from them in Bethlehem
[Pennsylvania]. But they apprehended him and had him imprisoned
in Burlington, New Jersey."[15]Id. at 95.) But how
marvelous that a judge -and a peculiarly modern judge,
insofar as his impecuniousness is concerned--had the inclination
(and, I suppose, the time) to seek to place such historical
materials at his command--to fix the case before him in
the scheme of things. It may be too much to expect today's
judges, much less their law clerks, to match the historical
scholarship and erudition of that Golden Age of American
political achievement. But perhaps we should make the
effort, and take the time, to try.
* Judge Scalia delivered the Society's 1985 Annual
Lecture on May 13, 1985 in the restored Supreme Court
chamber of the U.S. Capitol. This paper is a reprint of
his remarks.
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