472
Scalia, J., dissenting
B
The Court's opinion considers the judgment at issue here "a routine exercise of common law decisionmaking," whereby the Tennessee court "brought the law into conformity with reason and common sense," by "laying to rest an archaic and outdated rule." Ante, at 467. This is an accurate enough description of what modern "common law decisionmaking" consists of—but it is not an accurate description of the theoretical model of common-law decisionmaking accepted by those who adopted the Due Process Clause. At the time of the framing, common-law jurists believed (in the words of Sir Francis Bacon) that the judge's "office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." Bacon, Essays, Civil and Moral, in 3 Harvard Classics 130 (C. Eliot ed. 1909) (1625). Or as described by Blackstone, whose Commentaries were widely read and "accepted [by the framing generation] as the most satisfactory exposition of the common law of England," see Schick v. United States, 195 U. S. 65, 69 (1904), "judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law," 1 W. Blackstone, Commentaries *69 (herein-after Blackstone) (emphasis added).
Blackstone acknowledged that the courts' exposition of what the law was could change. Stare decisis, he said, "admits of exception, where the former determination is most evidently contrary to reason . . . ." Ibid. But "in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation." Id., at *70. To fit within this category of bad law, a law must be "manifestly absurd or unjust." It would not suffice, he said, that "the particular reason [for the law] can at this distance of time [not be] precisely assigned." "[F]or though [its] reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted
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