A Judicial Traditionalist Confronts the Common Law

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I. THE COMMON-LAW TRADITION AS CAUSE FOR ANXIETY

I consider myself a disciplined judicial traditionalist. This means, in short, that I view my role as a jurist through the lens of three fundamental principles. The first is respect for the republican form of government assured to us by Article IV, section 4 of our Constitution.1 The second is acknowledgement, in light of the exclusive grant of legislative powers to Congress in Article I, section 1, of the fact that it is the legislature that serves as the People's lawgiver in matters of public policy.2 The third, building on the second, is recognition within the architectural structure of our constitution that, beyond the rights enumerated in the Bill of Rights that specifically protect individuals, public policy is properly a product of the majoritarian process of the political branches of government -the executive and legislative branches.

While the Michigan Supreme Court has the institutional power to invade the constitutional prerogatives of the other branches of government and make the state's policy, we do not, in light of the principles outlined above, have the constitutional authority to do so. Consequently, as a member of the judicial branch, my role is to give the policy preferences of the legislature meaning by construing the words of statutes in a manner consistent with their clear import.3

The common law, however, is an entirely different beast. The ideas and practices that form the common-law tradition-at least as the tradition has been received and practiced in the United States to date -run counter to the core principles described above and thrust the jurist into the odd role of lawgiver.4 As a starchy judicial traditionalist, I would ordinarily feel compelled to begin any discussion of the common law by exploring the provenance of judicial authority to change extant common -law rules.5 But I think Professor Stephen Presser in his remarks at this symposium and in his writings has made a substantial contribution to that end.61 am therefore simply going to take as my starting point the proposition that the established common -law tradition, with any number of dodges and sleights of hand, allows judges to "discover" or make common -law rules that address evolving social concerns7 .7

Consequently, I want to focus my remarks here on the embarrassment that the common law presents -or ought to present to a conscientious judicial traditionalist. This idea that the common law authorizes judicial law making -and I believe this to be a fairly uniform understanding in contemporary judicial circles in Americahas been regnant in Michigan in fact, if not in self-description, since we entered the Union.8 Yet this so -called warrant to make law should make any self-confessed judicial traditionalist extremely uncomfortable.

To give a graphic illustration of my feelings on the subject, I tend to think of the common law as a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one's genteel garden party. Grandpa's presence is undoubtedly a cause of mortification to the host. But since only the most ill-bred of guests would be coarse enough to comment on Grandpa's presence and condition, all concerned simply try ignore him.

Like the attendees at my imaginary garden party, common -law apologists have spent centuries denying that Grandpa was actually in attendance or, if so acknowledged, vigorously asserting that he was actually clothed and sober.9 Indeed, some jurists like justice Cardozo actually celebrate Grandpa and his condition and enthusiastically urge all of us to relax, undress, and join Grandpa in his inebriated communion with nature.10

As is the case with young children unschooled in social niceties, legal realists have been pointing and making a regular fuss about the fact that there is a frightening, drunken old man laying about with no clothes on. And like that child, I too acknowledge that this modern conception of the common law that authorizes jurists to discover, create, or modify common-law rules-or policy-is entirely inconsistent with normative constitutional policies and principles, according to which prerogatives of policymaking are given to other branches of government. ' '

I am certainly not the first jurist to express anxiety about the judiciary's capacity to pass upon questions of public policy. Over two centuries ago, in...

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