Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
wholly without consideration." Ibid.1 By way of example, Blackstone pointed to the seemingly unreasonable rule that one cannot inherit the estate of one's half brother. Though he accepted that the feudal reason behind the law was no longer obvious, he wrote "yet it is not in [a common law judge's] power to alter it." Id., at *70-*71 (emphasis added).2 Moreover, "the unreasonableness of a custom in modern circumstances will not affect its validity if the Court is satisfied of a reasonable origin." Allen 140-141. "A custome once reasonable and tolerable, if after it become grievous, and not answerable to the reason, whereupon it was grounded, yet is to be . . . taken away by act of parliament." 2 E. Coke, Institutes of the Laws of England *664 (herein-after Institutes); see also id., at *97 ("No law, or custome of England can be taken away, abrogated, or adnulled, but by authority of parliament"); Of Oaths before an Ecclesiastical Judge Ex Officio, 12 Co. Rep. *26, *29 (1655) ("[T]he law and custom of England is the inheritance of the subject, which he cannot be deprived of without his assent in Parliament").
There are, of course, stray statements and doctrines found in the historical record that—read out of context—could be thought to support the modern-day proposition that the com-1 Inquiring into a law's original reasonableness was perhaps tantamount to questioning whether it existed at all. "In holding the origin to have been unreasonable, the Court nearly always doubts or denies the actual origin and continuance of the custom in fact." C. Allen, Law in the Making 140 (3d ed. 1939) (hereinafter Allen).
2 The near-dispositive strength Blackstone accorded stare decisis was not some mere personal predilection. Chancellor Kent was of the same view: "If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it." 1 J. Kent, Commentaries *475-*476 (emphasis added). See also Hamilton's statement in The Federalist: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." The Federalist No. 78, p. 471 (C. Rossiter ed. 1961).
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