Antonin Scalia, meanwhile, in this book review, seems to be informing us that that old sturdy structure, the “Common law,” is being dismantled by a sort of judicial post-modernism:
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 meÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬?in fact, it pleases meÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬?that giving the words of the Constitution their normal meaning would ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œexpel from the domain of legal issues . . . most of the constitutional disputes that capture our attention,ÃƒÂ¢Ã¢â€šÂ¬Ã‚? such as ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œCan a macho military educational institution dedicated to what is euphemistically called the ÃƒÂ¢Ã¢â€šÂ¬Ã‹Å“adversativeÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢ method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending oneÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s life?ÃƒÂ¢Ã¢â€šÂ¬Ã‚? If we should read English as English, Smith bemoans, ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œthese questions would seemingly all have received the same answer: ÃƒÂ¢Ã¢â€šÂ¬Ã‹Å“No law on that one.ÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢ÃƒÂ¢Ã¢â€šÂ¬Ã‚?
That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law. SmithÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s response is revealing: ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œWe have not been content with this sort of modesty in our law.ÃƒÂ¢Ã¢â€šÂ¬Ã‚? The antecedent of the pronoun is unspecified, but I fancy it refers to the legal academic community which establishes the permissible boundaries for SmithÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s thinking, or at least his writing. Many Americans outside that community yearn for this sort of modesty. Indeed, it was something of an issue in the last election. SmithÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s complaint is that the judges will not have the degree of power ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œweÃƒÂ¢Ã¢â€šÂ¬Ã‚? would like them to have. Long live the common law!