On the origin of rules (with apologies to Darwin): A comment on Antonin Scalia's the Rule of Law as a Law of Rules

University of Chicago Law Review

Volumn 75, Issue 3, 2008, Pages 997-1013

  Strauss, David A ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 56849096736     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (131)

1. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U Chi L Rev 1175 (1989).
2. Id at 1176 (emphasis omitted).
3. Id at 1187.
4. Id.
5. For Justice Scalia's more extended development of his views on these subjects, see generally Antonin Scalia, Common-law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in Amy Gutmann, ed, A Matter of Interpretation: Federal Courts and the Law 3 (Princeton 1997).
6. See Scalia, 56 U Chi L Rev at 1184 (cited in note 1) ("Just as that manner of textual exegesis facilitates the formulation of general rules, so does, in the constitutional field, adherence to a more or less originalist theory of construction.").
7. See id at 1178-79.
8. Id at 1178.
9. Id.
10. See, for example, Tom Tyler, Why People Obey the Law 82-83, 116-17 (Princeton 2006) (discussing empirical studies finding that perceived fairness led to increased compliance and that having a chance to state one's case increases one's perception of fairness).
11. Scalia, 56 U Chi L Rev at 1175-76 (cited in note 1).
12. 127 S Ct 2360 (2007).
13. See id at 2362.
14. 127 S Ct at 2362.
15. Id.
16. See id at 2371 (Souter dissenting).
17. Id at 2362 (majority).
18. See id at 2366-67.
19. Id at 2366.
20. See id.
21. See id at 2367.
22. Id (Souter dissenting).
23. Scalia, 56 U Chi L Rev at 1178 (cited in note 1) (emphasis omitted).
24. See text accompanying note 8.
25. Scalia, 56 U Chi L Rev at 1180 (cited in note 1).
26. Id.
27. Id.
28. The most famous examples are New York Times v Sullivan, 376 US 254, 279-80 (1964) (holding that public officials cannot recover for defamation unless they show that the defamatory statement was uttered with "actual malice"),
29. and Brandenburg v Ohio, 395 US 444, 447 (1969) (holding that speech that advocates the violation of the law may not be punished unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action").
30. Schenck v United States, 249 US 47,52 (1919).
31. In Schenck, Holmes's opinion for the Court upheld a restriction on speech inciting insubordination during wartime. Holmes subsequently used a similar formulation in famous dissenting opinions that would have declared such restrictions unconstitutional. See Abrams v United States, 250 US 616,624,628 (1919) (Holmes dissenting) ("It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion.");
32. Gitlow v New York, 268 US 652, 672-73 (1925) (Holmes dissenting).
33. Letter from Learned Hand to Zechariah Chafee, Jr. (Jan 2, 1921), quoted in Gerald Günther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 Stan L Rev 719, 749-50 (1975).
34. The test that the Court settled on in Brandenburg, see note 28, avoided using the phrase "clear and present danger"-probably in response to concerns like those expressed by Hand. See Gunther, 27 Stan L Rev at 754-55.
35. See Scalia, 56 U Chi L Rev at 1180 (cited in note 1) (arguing that it is easier for a judge to rule in favor of a "convicted felon who is the object of widespread hatred" and against popular sentiment when the ruling is based on a per se rule rather than a case-specific determination).
36. See, for example, Scalia, Common-law Courts at 37-39 (cited in note 5).
37. Scalia, 56 U Chi L Rev at 1184 (cited in note 1).
38. 486 US 567 (1988).
39. See id at 569.
40. See id at 572.
41. See Dunaway v New York, 442 US 200,216,219 (1979).
42. Chesternut, 486 US at 573 ("Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to 'leave' will vary."),
43. quoting United States v Mendenhall, 446 US 544, 554 (1980).
44. See Chesternut, 486 US at 576-77 (Kennedy concurring).
45. Scalia, 56 U Chi L Rev at 1184 (cited in note 1).
46. See id.
47. Id.
48. Id,
49. citing United States v Dunn, 480 US 294 (1987).
50. Scalia, 56 U Chi L Rev at 1184 (cited in note 1).
51. See 2 Shorter Oxford English Dictionary on Historical Principles 2761 (Oxford 2d ed 2002).
52. See United States v Drayton, 536 US 194, 203-04 (2002) (holding that no seizure existed based partly on the fact that the officer did not brandish his weapon);
53. Florida v Bostick, 501 US 429, 432 (1991) (emphasizing, in its determination that seizure did not exist, that "at no time did the officers threaten Bostick with a gun").
54. See text accompanying notes 39-40.
55. See text accompanying note 5.
56. See Scalia, 56 U Chi L Rev at 1181 (cited in note 1) (describing the "reasonable man" standard as "the most venerable totality of the circumstances test of them all").
57. See, for example, US Const Art 1, § 2, cl 2 ("No person shall be a Representative who shall not have attained the age of twenty five years.").
58. See, for example, US Const Art 1, § 2, cl 1 ("The House of Representatives shall be composed of members chosen every second year.").
59. See US Const Art 1, § 3, cl 1 ("The Senate of the United States shall be composed of two Senators from each state.").
60. See US Const Art 1, § 2, cl 3 (requiring a census "within every subsequent term of ten years").
61. See Dunn, 480 US at 300.
62. See id at 300 n 3,
63. quoting William Blackstone, 4 Commentaries on the Laws of England *225 (Clarendon 1769) (failing to define "curtilage" apart from noncontiguous but fenced-in barns, stables, or warehouses).
64. See Dunn, 480 US at 301 n 4 (denying the government's request to define "curtilage" as whatever lies within "the nearest fence surrounding a fenced house").
65. See id at 301 ("[C]urtilage questions should be resolved with particular reference to four factors: the proximity of the area ... to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken... to protect the area from observation.").
66. Scalia, 56 U Chi L Rev at 1184 (cited in note 1).
67. See note 81 (providing examples where rules replaced discretionary standards).
68. 372 US 335 (1963).
69. 541 US 36 (2004).
70. See 372 US at 344-45.
71. 316 US 455 (1942).
72. Id at 462.
73. See id;
74. Gideon, 372 US at 342.
75. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 1-3 (Harvard 1980) (asserting that Justice Black remained faithful to textualism and originalism even when it conflicted with his political views).
76. For a discussion of the justification for the decision in Gideon and the relationship of that decision to precedent, see David A. Strauss, The Common Law Genius of the Warren Court, 49 Wm & Mary L Rev 845, 868-71(2007).
77. Gideon, 372 US at 344.
78. See id at 349-50 (Harlan concurring) ("I agree that [Betts] should be overruled, but consider it entitled to a more respectful burial than has been accorded.").
79. Id (showing that decisions requiring provision of counsel rested on a finding of "special circumstances").
80. See also Jerrold H. Israel, Gideon v. Wainwright The "Art" of Overruling, 1963 S Ct Rev 211,234-41 (noting that overruling courts will often characterize a case as an "arbitrary break with the past" so that they can reject the case and still claim adherence to stare decisis but concluding that the use of this approach in Gideon is "highly questionable").
81. Gideon, 372 US at 350.
82. Id at 351.
83. See Avery v Alabama, 308 US 444, 445 (1940) (stating in dicta that the complete denial of representation of counsel in a capital case is a "clear violation of the Fourteenth Amendment[]").
84. See Uveges v Pennsylvania, 335 US 437, 440-41 (1948) (noting that some members of the Court thought case-by-case determination was warranted but only where capital punishment was not involved);
85. Bute v Illinois, 333 US 640, 674 (1948) (observing that the "special circumstances" test was only apposite because the case at bar was not a capital case).
86. See Hamilton v Alabama, 368 US 52, 55 (1961) (reasoning that only the presence of counsel allows a defendant to plead intelligently and know about all of his available defenses).
87. See, for example, Foster v Illinois, 332 US 134, 138 (1947) (holding that the failure to provide counsel was not a "depriv[ation] of rights essential to a fair hearing under the Federal Constitution");
88. Bute, 333 US at 677 (1948) (holding a defendant does not have a right to counsel in a noncapital case unless special circumstances show due process would be violated without counsel);
89. Gryger v Burke, 334 US 728, 730 (1948) (allowing a conviction to stand where defendant had previously been a defendant in eight cases but still made no request for counsel);
90. Quicksall v Michigan, 339 US 660, 661 (1950) (adhering closely to Foster, Bute, and Uveges).
91. See, for example, Williams v Kaiser, 323 US 471, 471, 476-79 (1945) (overturning a conviction for robbery with a deadly weapon where the defendant requested, but was denied, counsel and therefore allegedly felt compelled to plead guilty);
92. Rice v Olson, 324 US 786, 787-91 (1945).
93. Gideon, 372 US at 350-51 (finding no cases after Quicksall where the Court found special circumstances lacking).
94. See, for example, Chewning v Cunningham, 368 US 443, 446 (1962) (arguing that when subsequent offender statutes were at issue "the labyrinth of law is, or may be, too intricate for the layman to master");
95. Hudson v North Carolina, 363 US 697, 703 (1960) (reasoning a layman could not know he was entitled to protection from the prejudicial effects of his codefendant's guilty plea or how to invoke such protection).
96. See also Gideon, 372 US at 351 ("The Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial.").
97. See Israel, 1963 S Ct Rev at 251 n 236, 252 (cited in note 69).
98. Gideon, 372 US at 351 (arguing that retaining a rule that is honored only with lip service disserves the federal system in the long run).
99. Gideon is typical of several of the most important Warren Court decisions in these respects-that it replaced a discretionary standard with a rule and did so because the discretionary standard had proved itself to be unsatisfactory in a series of earlier decisions. This was true, I believe, of the decisions in Brown v Board of Education, 347 US 483 (1954),
100. and Miranda v Arizona, 384 US 436 (1966).
101. The "one person, one vote" rule of Reynolds v Sims, 377 US 533 (1964),
102. presents what might be called an anticipatory version of the same process. The Court, concerned that a discretionary standard would be evaded, imposed a rule that was justified principally by the need to avoid evasion. For a defense of these claims, see Strauss, 49 Wm & Mary L Rev at 860-79 (cited in note 66).
103. 541 US at 38.
104. Id at 38-39.
105. Id at 40.
106. Id at 40,
107. quoting Ohio v Roberts, 448 US 56, 66 (1980).
108. Crawford, 541 US at 40,
109. quoting Roberts, 448 US at 66.
110. See Crawford, 541 US at 68-69.
111. Id at 63.
112. See id (describing how one court found reliability based on a statement's detail, while another "found a statement more reliable because the portion implicating another was 'fleeting'").
113. Id at 59.
114. Id.
115. Id at 43-50 (tracing the history of the right to confront one's accusers from Roman times to early state decisions after ratification of the Constitution).
116. Id at 67-68.
117. See id at 69-73 (Rehnquist concurring).
118. See, for example, Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Fictional Originalem in Crawford v. Washington, 71 Brooklyn L Rev 105, 107-08 (2005);
119. Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford's "Cross-examination Rule": A Reply to Mr. Kry, 72 Brooklyn L Rev 557, 567-71 (2007).
120. For a response, see Robert Kry, Confrontation under the Marian Statutes: A Response to Professor Davies, 72 Brooklyn L Rev 493, 541 (2007).
121. See Crawford, 541 US at 45-46 (majority)
122. (citing cases such as King v Dingler, 168 Eng Rep 383 (KB 1791),
123. and King v Paine, 87 Eng Rep 584 (KB 1696), which addressed the admissibility of examinations where the witness was unavailable).
124. See Crawford, 541 US at 45 (noting that Paine held that "the admissibility of an unavailable witness's pretrial examination depended on whether the defendant had had an opportunity to cross-examine him").
125. Chief Justice Rehnquist, in fact, criticized Justice Scalia's account partly on the ground that Justice Scalia had greatly overstated the extent to which those cases gave rise to a clear rule: "It is an odd conclusion indeed to think that the Framers created a cut-and-dried rule with respect to the admissibility of testimonial statements when the law during their own time was not fully settled." Id at 73 (Rehnquist concurring).
126. See id at 57-59 (noting that even in Roberts, the case that Crawford overruled, the Court "admitted testimony from a preliminary hearing at which the defendant had examined the witness").
127. See id 68 ("Where nontestimonial hearsay is at issue ... the States [should be afforded] flexibility in their development of hearsay law.").
128. Id.
129. See, for example, Davis v Washington, 547 US 813, 817 (2006) ("[The Court here was required] to determine [whether] statements made to law enforcement personnel during a 911 call or at a crime scene are 'testimonial.'").
130. See 541 US at 62.
131. See Giles v California, 128 S Ct 976 (2008) (granting certiorari).