University of Pittsburgh School of Law Scholarship@PITT LAW Book Chapters Faculty Publications 2014 Reading Blackstone in the Twenty-First Century and the Twenty- First Century through Blackstone Jessie Allen University of Pittsburgh School of Law, [email protected] Follow this and additional works at: https://scholarship.law.pitt.edu/fac_book-chapters Part of the Common Law Commons, Constitutional Law Commons, Courts Commons, Judges Commons, Jurisprudence Commons, Law and Philosophy Commons, Law and Society Commons, Legal History Commons, Litigation Commons, Other Anthropology Commons, Other Arts and Humanities Commons, Other Philosophy Commons, Philosophy of Mind Commons, Social and Cultural Anthropology Commons, and the Supreme Court of the United States Commons Recommended Citation Jessie Allen, Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone, Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014). Available at: https://scholarship.law.pitt.edu/fac_book-chapters/26 This Book Chapter is brought to you for free and open access by the Faculty Publications at Scholarship@PITT LAW. It has been accepted for inclusion in Book Chapters by an authorized administrator of Scholarship@PITT LAW. For more information, please contact [email protected], [email protected]. First published in Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts Edited by Wilfrid Prest, Hart Publishing, 2014. Printed with permissions. Additional information on the complete work is available at Hart Publishing (http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465380 ). Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone Jessie Allen1 On the one hand, a myth always refers to events alleged to have taken place long ago. But what gives the myth an operational value is that the specific pattern described is timeless; it explains the present and the past as well as the future. Claude Levi-Strauss2 Blackstone’s Commentaries is a legendary fount of learning for lawyers and statesmen in American history, but who actually reads it anymore? And who would use it to answer questions about twenty-first-century American law? The justices of the United States Supreme Court, that’s who. The Commentaries is undergoing a renaissance at the Supreme Court. In recent years the Court has cited Blackstone at rates not seen since the early nineteenth century. In some of those references, Blackstone’s work supplies historical evidence about aspects of the British legal system that the American colonists both rejected and perpetuated. Some of the Court’s uses of Blackstone, however, are more mythical than historical. One technique stands out. Identifying the Commentaries as the ‘preeminent legal authority’ for the ‘founding generation,’ the Court 2 sometimes proceeds as if the United States founders understood the Constitution to silently enact Blackstone’s Commentaries in between or underneath the constitutional text. 3 Blackstone in the United States Supreme Court The Commentaries is off most lawyers’ reading lists these days, and that is hardly surprising. After all, it is not as though we spend much time perusing law books from previous centuries – even those that were once highly influential. But there is a strange wrinkle in Blackstone’s obsolescence. Recently, references to Blackstone in the United States Supreme Court’s opinions have increased dramatically. Blackstone has been cited often in US courts of all jurisdictions since the country’s founding. That does not mean that Blackstone ever appeared in most, or even a large minority of, American judicial opinions. Dennis Nolan’s study of a random sample of 471 cases from state and federal courts in the late eighteenth and early nineteenth centuries found that about 7 percent cited Blackstone, and many of those were in the arguments of counsel, not the final opinion of judges.4 However that 7 percent– a reference in approximately 1 in every 14 cases was enough to make Blackstone’s Commentaries the single most cited work in those early opinions.5 A closer look at citations to Blackstone in early United States Supreme Court cases confirms the basic picture Nolan provided. Between 1801 and 1830 there were 856 Supreme Court decisions issued with signed opinions. Of those decisions, 16, or 2 percent, included at least one reference to Blackstone by a Supreme Court justice, and 68, or 8 percent, carried references to Blackstone in the arguments of counsel that the early reporters reproduced.6 The reason it makes sense to 3 count both of these numbers when gauging Blackstone’s importance as a source of authority is that the justices’ opinions from those early days are relatively free of citations to any authorities, compared with today’s Supreme Court opinions. Scanning the early printed reports, one finds in the arguments of counsel the kind of citation patterns seen in both advocates’ briefs and the Court’s opinions today. The early justices’ opinions, however, which are often just a few pages or paragraphs long, for the most part include only the occasional reference. It seems worthwhile, then, to consider the citation rates in both counsels’ arguments and justices’ opinions as baselines for comparison with the rates of citation in today’s Supreme Court opinions. On both of these measures, there is no question that Blackstone’s presence in twenty-first century Supreme Court cases is comparable to what it was in the Court’s early days. Since 1990, Blackstone has appeared in 8 percent of the US Supreme Court’s signed opinions. That citation rate is higher than the rates of either Supreme Court justices or counsel at any time since 1810. Only Blackstone’s appearance in 13 percent of counsels’ arguments between 1801 and 1810 outstrips his current popularity now as a source of authority in the Supreme Court.7 Moreover, Blackstone has not always maintained such a strong presence in the Court’s opinions. Figure 1 shows that in the mid-nineteenth century, the Court’s Blackstone references began to diminish. Then, after an upsurge at the turn of the century, citations to the Commentaries dropped precipitously. In the 1920s and 1930s there were quite a few years in which the Supreme Court failed to mention Blackstone at all. 4 14.00% 12.00% 10.00% 8.00% Frequency of citation to Blackstone 6.00% - Justices Frequency of citation to Blackstone 4.00% - Counsel 2.00% 0.00% Frequency is determined by dividing the total number of signed opinions of the court1 by the number of Blackstone mentions by Justices, and by counsel2. It is worth noting that the year 1850 appears twice on this chart. That is because, in that year, the Court moved the start of its term from January to December, resulting in two full terms identified as 1850. Since that time, Supreme Court terms have started late in the year, and extended into the following calendar year. The result is that now most decisions identified with a particular term year are issued in the following calendar year. 1 Signed opinions for the term years 1801-1972 are taken from Albert P. Blaustein & Roy M. Mersky, The First Hundred Justices: Statistical Studies on the Supreme Court of the United States 137-141 (Hamden, Conn, Shoe String 1978). Signed opinions for the term years 1973-2009 are taken from L Epstein, J Segal, H Spaeth and T Walker, The Supreme Court Compendium 89-90 (Los Angeles, Sage 2012). Signed opinions for the term years 2010 and 2011 are taken from the Chief Justice’s Year-End Reports on the Federal Judiciary. 2011 Year-End Report on the Federal Judiciary (December 31, 2011), available at http://www.supremecourt.gov/publicinfo/year- end/2011year-endreport.pdf; 2012 Year-End Report on the Federal Judiciary (December 31, 2012), available at http://www.supremecourt.gov/publicinfo/year-end/2012year-endreport.pdf. Signed opinions for term year 2012 are taken from a count of 2012 Slip Opinions on the Supreme Court Website. 2012 Term Opinions of the Court, http://www.supremecourt.gov/opinions/slipopinions.aspx?Term=12, last visited September 26, 2013. 2 Compiled with a Westlaw Next search using search term, “(Blackstone bl england) /s (com commentaries comm tucker)”, removing false positives (for instance, references to Kent’s Commentaries and the effects of same on the law of England) and case-by case categorization of type. 5 After almost disappearing from Supreme Court opinions in the early twentieth century, however, Blackstone experienced a resurgence. Figure 1 shows that the Court’s citations to Blackstone began increasing gradually through mid-century and then rose precipitously from the1990s to the current rate of about one in every thirteen decisions. Remarkably, in every one of the past 60 annual court terms, the justices have pointed to Blackstone’s eighteenth-century treatise in at least one of their published opinions. It seems worth noting, moreover, that during Blackstone’s previous period of popularity in the nineteenth century, there were considerably fewer authoritative legal sources of any kind. When the Supreme Court cites Blackstone now, his work is being chosen from a much wider range of potential reference points. Table 1 shows the dramatic increase in citations to Blackstone’s Commentaries in the Court’s opinions between 1920 and the present, from a rate of 1 in 318 to 1 in 13 decisions. From 2000 to 2009 the justices of the Supreme Court issued less than half the number of decisions the Court produced from 1930 to 1939; but the number of decisions with citations to Blackstone increased more than sevenfold – from 7 to 54, producing a 1-in-13, or, 8 percent, citation rate in 2000- 2009. 6 Table 1. Blackstone Citations in Opinions of U.S.