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Hadley Arkes and John McGinnis Respond to James Stoner's Essay "Why You Can't Understand the Constitution Without the Common Law."

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James Stoner has written a fine essay on the Common Law for the Library of Law & Liberty (“Why You Can’t Understand the Constitution Without the Common Law”). Hadley Arkes was asked to do a commentary. The Common Law is often venerated and cited with the authority of tradition (“whereof the memory of man runneth not to the contrary”). But Hadley Arkes draws out more sharply, with Stoner, the grounding of the Common Law in the Natural Law. Some writs, once venerable, have disappeared, and Arkes urges us to consider anew that the Common Law claims its strength with us still, not because its principles are “traditional” but because they may be compellingly true. (“Peeling Back the Common Law”)

We thank Richard Reinsch, the editor of the Library of Law & Liberty for the permission to reprint here the essays by James Stoner, Hadley Arkes, and John McGinnis (“Common Law Constitutionalism: Tradition v. Interpretive Process”).

Please take a moment to read the conversation from the Library of Law & Liberty:

Hadley Arkes' Response: "Peeling Back The Common Law: Reflections Stirred By James Stoner On The Common Law"

We were not aware at the time that they were twilight years, that time just before Roe v. Wade was decided, when statutes on abortion were sustained in the courts and only occasionally struck down.  That is in part why Roe v  Wade came with a jolt of surprise.  In one case, just a year before Roe, the Supreme Court in Florida struck down a statute that barred abortions except when “necessary to preserve the life” of the pregnant woman.  The Court affected to find “vagueness” in that statute (though it would be hard to imagine how judges could have found any crippling vagueness in that standard even with the state of techniques and equipment at the time).   But then the surprise that broke in on the judges:  The legislature in Florida had never bothered to repeal the common law as it bore on abortion, even as the legislators sought to add more precision with a statute.  And so, as the judges waved their judicial wands to sweep away a statute they found uncongenial, they brought back into effect a common law that made it unlawful to operate on a woman with the purpose of procuring an abortion if “she were actually quick with child”—which is to say, that she was carrying a living, growing human being. And of course the techniques for detecting that living thing in the womb were far more advanced then they were when those rulings of the common law were formed.    The judges had inadvertently brought the Common Law back into force, and with it they brought a measure on abortion possibly far more restrictive than the statute they had struck down. [1]

James Stoner touches a deep truth in his essay when he remarks that “there is much about the common law that is alive today and plays no small part in supporting our lawful liberty.  … [The] common law has been a means by which natural law or the law of reason has retained authority in American life.”   The truth even deeper here is that the common law has provided the residual law, not only in the States, but in the understanding of those lawyers who framed the Constitution and shaped the founding period of our law under the Constitution.   In the things closest to home, we find the materials here in the stuff of ordinary life and the abrasions that lead people to “go to law”—“Are you building on my property?”  “This repair should be covered by that warranty.”  “I lost that job because of the vicious lies you spread about me.”   Before we had statutes on defamation we had complaints about libels and slanders, which furnished the ingredients for the law of “torts”:    People are seized with the sense that they have suffered a “wrong,” and they want some kind of remedy, some kind of pronouncement with the gravity of law that they have in fact been wronged.   It may be as simple and prosaic as that case that sprung up in San Francisco years ago, when a man was stood up for a date by a woman in Oakland.   He was an accountant, quite given to reckoning billing hours. And he sued the woman for $38 to cover the cost of gas in driving, and for his time.

In so many cases of this kind, there may be no statutes at hand, and so the argument does really depend on what we may call that “natural” sense of  right and wrong, or that natural sense of making arguments, giving reasons. Imagine, for example, the surprise of the first man sued for herpes.  There were no statutes, and so on what would the argument depend?   With the rudiments of moral reasoning the argument would have to focus on the ingredients of responsibility and knowledge:  Did the man know that he had that condition?  Did he know how the herpes was transmitted?  And if so, what tenable reason or justification did he have for not alerting his partner in the sexual act?

Justice Holmes famously scoffed at the natural law and the notion of moral truths, and the most prestigious places in the legal academy are still more likely to reflect his state of mind.  And yet, against that orthodoxy so entrenched, the persistence of the common law stands as the most muted and powerful refutation of what the most anointed figures in the law have professed to believe.   Legislatures may try to declare a sweeping repeal of the common law, but the capacity to reason over matters of right and wrong, of the just and unjust, cannot be driven from the makeup of ordinary persons.  As Aristotle saw, that capacity is simply part of the mint of our very natures.  And it is the most telling thing that explains why humans are the only beings fitted by nature for the life marked by the presence of “law.”

But beyond the law touching our daily lives, the common law lives as well in those loftier domains of our constitutional law.   In a speech on the Alien and Sedition laws before he had become Chief Justice, John Marshall is reported to have said that anyone who publishes a libel in this country “may be sued or indicted.”   He could be sued for personal libel or tried for a libel that agitates the community or incites hatred toward particular groups.[2]  With the new Constitution came the First Amendment, exalting the “freedom of speech and publication.” But Marshall apparently assumed that nothing in that First Amendment, or any of those other amendments making up the Bill of Rights, would displace the world of law he had already come amply to know.  In that world it was recognized that speech could become an instrument of wrongdoing, destroying reputations and businesses, inducing terror and shortening lives;  and when it did, it could be restrained or punished by the law, along with any other acts inflicting harms.  Whatever the First Amendment meant, it could not have swept away the common sense of reasoning about matters of right and wrong.

Justice Holmes thought it would be a decided “gain if every word of moral significance could be banished from the law altogether.”[3]   I had the occasion recently to return to Holmes’s book on The Common Law, and to see him straining to read the law through a lens that filters out the moral shadings: “What the law really forbids, the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise.”[4]    Or:  the law was “continually transmuting … moral standards into external and objective ones , from which the actual guilt of the party concerned is wholly eliminated.”  (Holmes, 33)

And yet the common sense of the matter would not reliably bend the rays to fit that lens.   At every turn, in every branch of the law, the judgments would finally pivot on the familiar rudiments of moral reasoning.  A scrutiny of the “early books,” he said, “will show that liability in general , then as later, was founded on the opinion of the tribunal that the defendant ought to have acted otherwise, or, in other words, that he was to blame.”  [Holmes, 82]  And of course no one could rightly be held blameworthy for an act he was powerless to affect:

Unnecessary though it is for the defendant to have intended or foreseen the evil which he has caused, it is necessary that he should have chosen the conduct that led to it.  [121]

The Civil War had delivered Holmes from any lofty view of human nature, but even his “realism,” stripped of illusions, could not purge from his account the rudiments of moral reasoning that were always breaking through the record.  One suspects that Holmes savored the primitive origins of law because he found there the primitive passions of justice that powered the law, even before they became refined into a moral sensibility.   But more refined they did become, and it makes the record all the more charming:

King Alfred ordained the surrender of a tree, but that the later Scotch law refused it because a dead thing could not have guilt. …In Edward the First’s time some of the cases remind us of the barbarian laws at their rudest stage.  If a man fell from a tree, the tree was deodand [i.e., an instrument or object forfeited because it had been the instrument causing death to a victim.]   If he drowned in a well, the well was to be filled up. [23]

If we have moved beyond that precious but primitive state of mind, it is not because of conventions working their abrasions in a random way.  James Stoner reminds us that the engine at work here was “reason”:  “As it was a maxim of the common law that nothing against reason was lawful, the common law was thought  … to sift out abandoned customs.  In this way, albeit indirectly, common law might be said to adopt the law of reason or of nature. …”

When we think of that “sifting” of “abandoned customs,” I am drawn with a certain nostalgia to some of the most interesting common law writs that are no longer with us.  Two of my favorites were acknowledged by James Wilson in his lectures on law:  There was the writ de excommunicate capiendo (to arrest a person who had been excommunicated by an ecclesiastical court and yet refused to obey the sentence).  Or the writ de heretic comburendo (a writ issued at the direction of the king for the burning of a heretic).  In these pusillanimous times, as I’ve had the occasion to note, heretics are likely to be burned mainly on the beaches in Miami.  But as James Wilson remarked, “from these parts [of the ancient common law] we are happily relieved:  they are parts of the common law, which did not suit those who emigrated to America:  they were, therefore, left behind.”[5]

But why did they not “suit us”?  Was it some mismatching of manners or fashions, something that did not quite fit the tone of this new tribe of Americans?  Or were these parts of the law abandoned because they were strikingly out of accord with the principles that defined the way of life under this new American regime?   In other words, were they discarded because they repelled us as morally unfitting—that they were, finally, unreasonable, unjust?

I raise the question because it tests a vexing point of division in the circles of “conservative jurisprudence.”  Edmund Burke had appealed to the wisdom of “tradition” when set against the lure of “abstract principles.”  And with a similar temper, conservatives in our day have recoiled from liberal, “activist” judges by identifying their vice as a temptation to move beyond the text of the Constitution and soar into the domain of lofty principles, with those high-flown sentiments somehow always coming down on the side of the Left in our politics.   Some of us point up our persistent reliance on axioms of the law never contained in the text:  “we do not hold people blameworthy for acts they were powerless to affect,” or “we presume in favor of the innocence of the accused and the burden falls to those who would prove him guilty and deserving of punishment.”  When we do that, the persisting response has been that all of these things are simply contained in the notion of “due process of law” as it has come down to us from the English tradition.  No need then to ask the question of just what the source of our confidence may be that these maxims are true.   This is one of those key questions that springs from James Stoner’s commentary.  He asks:

Does “due process of law” include the presumption of innocence and the requirement that criminal guilt be proven beyond a reasonable doubt?  No originalist, and, one would hope, no judge anywhere in the United States would think of deciding that question without reference in some fashion or another to common law.

But when we do “refer” that matter to the Common Law, how is it to be resolved:  Do we ask, “How long has it been around,” or do we ask, rather, “What makes it compellingly true?  What makes it something that must be in place in anything that calls itself the ‘rule of law.’?”

Consider simply that axiom that stands as the anchor of the “laws of reason,” namely the law of contradiction:  two contradictory propositions both cannot be true.  That is one of those propositions that must be grasped on its own terms as true per se nota, and the telling sign of its truth is that we lapse into contradiction and gibberish if we sought to deny it.  Now if we said, “two contradictory propositions both cannot be true,” do we add anything to its claim to our credence if we added, “And Aquinas also said it.”  Or “It has also been put in the Constitution in Clause X.”    I would submit that the judgment would have to hinge, not on the persons who endorsed it, or its inclusion in a text, but on the force of the principle itself.

But the propositions that form axioms in our law should have the same foundation in the “laws of reason.”  And so why should we expect any different sense of the matter if the proposition put before is not the law of contradiction but that proposition Thomas Reid considered one of the deep “first principles” of moral and legal judgment:  that “what is done from unavoidable necessity … cannot be the object either of blame or moral approbation.”[6] [Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge:  MIT Press, 1969) [1788], p 361.]   Even the conservative judges in our own day would not doubt that these axioms of this kind simply claim their respect as laws of reason, quite apart from whether they are in the text of the Constitution.   And if that is the case, why do we find some of our conservatives jurists so distracted that they rail against the appeal to principles outside the text instead of concentrating their genius on the question at the core of the matter—namely, whether those new principles floated by the liberal judges can survive a hard test for their truth?

Justice Scalia has argued that the “right to keep and bear arms” in the Second Amendment had “codified a pre-existing right,” the right of a person to defend himself from an unjustified assault.   [Heller]  Judge O’Scannlain has argued that the Constitution can be construed to protect that natural right to self-preservation because there are ample grounds for believing that this principle formed part of the understanding behind the Second Amendment.   But even if that were true, we would have to ask, What is the more “jural” question for the judge to be asking.  Is it, “How many people who voted  to ratify the Amendment understood it to incorporate the principle of self-defense.”  Or is it:  “Is that principle compellingly true?  Must it not be rightful in any place for an innocent person to have access to lethal force if that were necessary to preserve his life from an unjustified assault.”

As James Stoner argues so rightly, the Common Law has kept the tradition of the natural law alive even in an age of moral skepticism. And unless it keeps distracting us with the romance of “tradition,” it leads us back, as Stoner says, to that test of reason that finally gives us, in any case, the true ground of judgment.



[1] See State v Barquet, 262 So. 2nd, 431, 437 (1972).  I was led to this case by Gregory J. Roden in “The Unknown Scholars of Roe,”  Human Life Review (Summer 2012), pp. 58-59.
[2] See the speech attributed to Marshall, “Address on the Constitutionality of the Alien and Sedition Acts,” in Morton J. Frisch and Richard G. Stevens, eds., The Political Thought of American Statesmen (Itasca, Ill.:  Peacock Publishers,1973), pp. 99-116, at 113.
[3] Holmes, “The Path of the Law,” in Collected Legal Papers (New York:  Harcourt Brace, 1920), p. 179.
[4]Holmes, The Common Law, ed. Mark DeWolfe Howe (Cambridge: Harvard University Press, 1963, p. 88 [Originally published in 1881.]
[5]James Wilson, “Of Crimes Against Nature and Reputation,” in The Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall (Indianapolis:  Liberty Fund, 2007), Vol II, pp. 1131-32.
[6]  Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge:  MIT Press, 1969) [1788], p 361.


James Stoner, “Why You Can’t Understand the Constitution Without the Common Law”

Why, in a country with a written Constitution and a founding document (the Declaration of Independence) that is grounded on natural right, should we pay attention to the common law?  Wrongly understood, as it usually is today, common law is held to be “judge-made law,” which is anathema to a constitutional order based on the sovereignty of the people that vests the power to legislate in elected representatives.  Even rightly understood, as the customary law of England, brought to America by the colonists as an inheritance and adjusted to American conditions as thought reasonable, common law was principally a matter for the states, not the federal government, and by now it would seem buried under two centuries of statutes.  Besides, some of its doctrines offend contemporary ideas about equality and justice, like coverture, the rule that a married woman’s property was subject to her husband’s governance because her legal personality was subsumed in his.

But without understanding common law, you cannot understand either the original meaning of the Constitution or the way that meaning has been adapted to remain effective in our own time.  Moreover, there is much about the common law that is alive today and plays no small part in supporting our lawful liberty.  Finally, common law has been a means by which natural law or the law of reason has retained authority in American life.  Let me lay out the case for common law by making five points—and alerting the reader that arguing by enumeration itself is a characteristic mode of proceeding at common law.

First, there are many phrases in the Constitution whose meaning was defined by the common law of the era.  Some of these are technical, such as the term ex post facto.  In fact, from Madison’s Notes of the Federal Convention we learn that the Framers themselves consulted Blackstone’s Commentaries when writing the phrase, learning that it applied only to retrospective criminal laws, not every statute that altered future consequences of past action in matters of civil jurisdiction.[i]  Other terms are more general: What is meant by the phrase “trial by jury” and by the phrase “due process” in the Fifth Amendment can surely be settled by any originalist only with reference to common law, for juries were its distinctive institution and “due process” its proudest boast.  (It is no accident that some of the same judges who attributed newly invented rights to the Constitution in the 1960s and the 1970s altered the jury requirement away from the traditional jury of twelve whose verdicts had to be unanimous.[ii])  Even the term “judicial power” should probably be read to carry along common-law expectations: for example, that judges would be drawn from the bar, that written opinions would be given to explain judgments, that precedents would have the force of law, and the like—expectations evident in Alexander Hamilton’s description of the proposed federal courts in The Federalist Papers.  Does “due process of law” include the presumption of innocence and the requirement that criminal guilt be proven beyond a reasonable doubt?  No originalist, and, one would hope, no judge anywhere in the United States would think of deciding that question without reference in some fashion or another to common law.

Second, the very question of what kind of document the Constitution is and how it ought to be interpreted is better answered with an awareness of common law ways of thinking.  Blackstone begins his Commentaries with a discussion of the study of law, of law in general, and of the specific law of England, and he includes both a general account of the rules for interpretation of statutes and an account specific to the interpretation of statutes in a common-law environment.  First look at the text, then consider the intention of its authors, then weigh a whole list of factors: such are the general canons.  Against a common-law background, consider whether the law declares in writing the previously unwritten common law or remedies some mischief it has caused, as well as the question whether the law is contradictory or against reason.[iii]  He famously warns against finding contradictions too easily, distinguishing the argument of Sir Edward Coke in Doctor Bonham’s Case,[iv] but my point here is that Blackstone develops his common-law canons by reasoning about the nature of legal interpretation, with attention as well to specific traditions in English law, such as to interpret criminal statutes strictly and statutes against frauds liberally.

Do these canons apply to the interpretation of written constitutions?  Blackstone of course does not say, leaving it to American statesmen and judges in practice and American legal scholars such as Joseph Story, James Kent, and later Thomas Cooley and Oliver Wendell Holmes (all of them also judges, by the way) in theory to rework Blackstone’s rules to apply to constitutions, again proceeding from consideration of the nature of the thing: Should the powers of the federal government be interpreted strictly or liberally?  Should constitutional rights?  I am not asserting that common law answers the question of how to read the Constitution, but its tradition does frame the way that question has been asked.  Indeed, contemporary theories such as textualism or originalism absolutize one of the several canons Blackstone and his followers identified.  Precisely because these canons rested on arguments from reason rather than authoritative pronouncement of some sovereign source—which, after all, would create a problem of infinite regress, for some law must identify the source—they could be adopted and adapted to apply to that then-new sort of law, a written constitution.  That this happened case-by-case in practice rather than all at once, and that canons of construction remain competitive and controversial, is to be expected from a common-law perspective.  From that perspective, the Constitution was not created ex nihilo as a social contract emerging from the state of nature, but as a reform of government in an existing union.  To be sure, the framers amended the Articles of Confederation by replacing them, but the states were not dissolved when the Constitution was formed, and when the states themselves were formed out of the colonies, most of the common-law legal order of property and personal status within them remained intact.

This leads to my third observation: Parts of the old common law remain in force even today.  Not only can land titles in the original states be traced back to colonial times, but common-law conceptions of real estate are still the basis of much state law, modified and supplemented by statutory law, to be sure, but not replaced.  From medieval times in England, and certainly by the time of Blackstone, it was well settled that statutes could supersede the common law, though common-law judges often presumed that statutes operated only at the margins, leaving its core intact, and some common-law advocates like Coke argued that most Parliaments that changed the common law lived to regret it, for example in Tudor times.  In modern times, whole areas of common law sometimes will be replaced by statutes: For example, early twentieth-century workers’ compensation laws were intended to wholly replace the complex common law of master and servant in the matter of liability for injury in the course of employment.

But other areas remained untouched by the great transformations of urbanization and the industrial revolution.  Just a decade or so ago, people in most states were surprised to find that their basic law of marriage was unwritten common law, according to which marriage was between a man and a woman, intended for life, dependent on consent of the parties, and complete only when consummated by the marital act—and this despite the fact that many (but not all) of the states had followed England in replacing the old “common-law marriage” with a requirement of public vows and a license, not to mention the fact that all the states had passed statutes permitting more or less easy divorce.  Until the recent flurry of state amendments, marriage was absent from state constitutions, not because marriage was not considered fundamental, but because the common law itself was thought fundamental enough to anchor it.  To this day, much of the law of contracts and torts is a matter of unwritten common law—ironic, perhaps, since the old common law of England had little to say on either topic before the eighteenth century, but reflective of the transition from an agricultural to a commercial society.  It is probably worth repeating that in all the matters just discussed, common law is the law of the states, to which federal judges are expected to defer, even by the terms of the Constitution: The Due Process Clause protects the right to property, but the “bundle of rights” that constitute property is for the most part described in state law, while the Full Faith and Credit Clause commands deference when at issue are the “public Acts, Records, and judicial proceedings” of the states.  (There was a sort of “federal common law” that operated in civil matters until the Erie v. Tompkins case in 1938, but that is another story better saved for another time.)

The fourth point to make about common law is its adaptability: Common law develops case by case, applying precedents unproblematically in new cases that are like previous cases, reasoning by analogy from established precedents when new circumstances arise.  In a famous example, the old common-law adage, caveat emptor (buyer beware), released the artisan from liability for a defect in his product when the complaint was made by a third party to whom the artifact had been subsequently sold by the artisan’s original customer.  While it is easy enough to accept the rule in a society of craftsmen who sell directly to most of their customers, in an age of mass production where defects in manufactured goods are not apparent on simple inspection and where wholesalers, shippers, and retailers routinely intervene between maker and consumer, the justice of the old rule is no longer apparent.  Indeed, if the aim of the original rule was to promote exchange, that might better be accomplished in a modern society by an implicit warranty in manufactured goods.  As the story of the change is told in Edward Levi’s fine short book, An Introduction to Legal Reasoning, the rule changes little by little and step by step, analogically, as exceptions are initially created for products thought “inherently dangerous,” until eventually the category of exceptions swallows up the rule.  Because the common law tended to favor individual initiative rather than peremptory government regulation—repairing wrongs through tort law after the fact instead of trying to prevent all risk, allowing innovative ventures because there was confidence that the law would maintain individual responsibility and that any new wrongs would eventually be repaired by old principles applied to new situations—scholars such as Friedrich Hayek have looked on common law as friendly to economic development.

The story of the evolution of contract and tort law in the nineteenth and twentieth centuries is the source of the idea that common law is judge-made, but that sobriquet overlooks the rigor that was demanded of analogical reasoning by intelligent judges making a good faith effort to keep the meaning of legal principles constant in the midst of vast social and economic change.  The changes both in common-law rules and in economic circumstances interacted as well with developments in the constitutional law of the era, again a long story, one that includes first the rise of liberty of contract as an element of Due Process, then its demise as a bar to regulation.  But the practice of analogical reasoning in the development of a line of precedents from case to case explains the interpretation of other clauses of the Constitution, too: Are telephone conversations more like postal exchanges, where statute law protects the privacy of correspondence, or more like natural conversations, where the speakers assume the risk of avoiding eavesdroppers?  Is posting a webpage on the internet more like broadcasting a message, or more like answering the phone?  The solutions to such problems are not obvious, nor are they arbitrary, and while statute law can influence their structure, they implicate the First and Fourth Amendments to the Constitution, too.  The common law way of thinking explains how law can adapt in an orderly way to social transformation, while preserving a presumption in favor of tradition and thus, given our traditions, usually in favor of liberty: Precedent ordinarily rules unless a strong case can be made that something genuinely new is presented, and even then the attempt is made, by analogy, to assimilate the new to the settled.

In accommodating change thanks to what H.L.A. Hart called its “open texture” —which its partisans would rather have called its embrace of liberty—while preserving the results of generations of jurists through whom its rules and maxims were, in Coke’s language, “fined and refined,” the common law earned a reputation as a repository of wisdom: This is my fifth and final point.  Coke even said of the learned and experienced common-law judge that he displayed all the cardinal virtues: justice, courage, temperance, and jurisprudence!  As it was a maxim of common law that nothing against reason was lawful, the common law was thought by its advocates to sift out abandoned customs.  In this way, albeit indirectly, common law might be said to adopt the law of reason or of nature: not that natural law or unassisted reason could replace statute or custom, but that judges were entrusted to ensure that unreason was confined as narrowly as possible and allowed to expire with the passions that happened to bring it forth.  If the paradigm of statutory law is, as Hobbes wrote, the command of the sovereign, the paradigm of common law is the community’s sense of right and wrong; that’s why the jury is its characteristic institution, or rather, the mixed regime of jury and judge.  In American constitutional law, of course, there is a longstanding distinction between the question of the constitutionality of legislation and the question of its wisdom; political liberty would be at an end if the distinction between the constitutional rights and powers on the one hand and wise exercise of those powers and rights on the other were forgotten.  But judicial review, remember, is an unwritten power to enforce a written Constitution.  What saved it from contradiction in its inception was its congruence with common-law interpretation and its traditional source in a few dramatic cases in English common law, already repudiated in eighteenth-century Britain, but still thought authoritative in America.  Even today, a wise judge can discern what is unconstitutional in a foolish law, or at least find a way to “mitigate its operation and confine its effect.”[v]  At the very least, he—or she, for the law has been supple enough to accommodate women as legal equals—can explain its folly, even while admitting a lack of authority to overturn it on constitutional grounds.

To the true originalist, the question of common law in relation to natural rights and a written constitution is the reverse of what I asked at the outset of this essay: not why still look at common law, but why, in the midst of a common law tradition, the American Founders had recourse to natural right and to putting a constitution in writing.  There are good answers to that question: Breaking from the British rather than quixotically trying to reverse an oppressive Parliament and a stubborn king meant they had to appeal to first principles to reground their inheritance, and their experience of revolutions gone bad—the very power of Parliament they found oppressive had grown out of a revolution their “British brethren” called “glorious”—suggested to them the value of memorializing first principles and basic law in written texts.  Besides, going back to Magna Charta itself, the English had a tradition of doing just that.  In this the Founders have again been vindicated, I think: When respect for common law was eclipsed in twentieth-century America by admiration for the administrative state, old common-law procedures constitutionalized in the Bill of Rights revived a concern for traditional protections of common law, from the prohibition against self-incrimination and the protection of the writ of habeas corpus, to revitalized protection for the obligation of contracts and property rights.  My argument is not that common law is the only source of the Constitution nor that common-law thinking is generally healthy today—on the contrary, there is widespread ignorance of its meaning and prejudice against its virtues among legal elites—but only that its imprint on what we understand by law and by liberty is deep enough to show effects despite neglect.  I also think that our constitutional law would be more reasonable—better integrated in our way of life and less partisan in its exposition—if we paid closer attention to its common-law sources and its aspiration to an understanding of justice that treats citizens as responsible and free.



[i] See John Dickinson’s speech on August 29, 1787, in Adrienne Koch, ed., Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Athens: Ohio University Press, 1966), p. 547.
[iii] Blackstone’s canons of interpretation can be found at the end of sections 2 and 3 of the Introduction to Commentaries on the Laws of England (Oxford: Oxford University Press, 1765), vol. I, pp. 58-62, 86-92.
[iv] Cf. 8 Co. Rep. 107a, at 118a, with Blackstone, Commentaries, I: 91-92.
[v] The phrase is Hamilton’s, in Federalist 78.


John McGinnis' Response: "Common Law Constitutionalism: Tradition Vs. Interpretive Process" 

James Stoner’s essay on the common law and the constitution provides a very valuable perspective on our founding document.  Stoner is wholly correct that the common law concepts are often essential to interpreting the Constitution.  Nevertheless,  I want to raise a note of caution about using the common law method  of interpretation as applied to the federal constitution.   My position can be readily summarized:  yes to common law concepts in the Constitution and the rules forged by the common law that were expected to be applied to its interpretation, but no to a common law method of constitutional interpretation.

Let me begin with three points of agreement. First, Stoner reminds us that common law concepts are written into the Constitution and thus that the meaning of many provisions cannot be understood without reference to the common law. The Constitution is a legal document and many terms are legal terms of art whose meaning was refined over preceding generations of the common law.  To ignore the common law background of these terms is to discard valuable information that can give a more precise and definite meaning to language that may otherwise might seem vague or confusing.

I also agree that the Constitution was not created ex nihilo, but arose from reticulated legal tradition, the most important of which was the common law. This tradition is important to determining the original meaning of the document, because it furnished a set of rules to help resolve the inevitable vagueness and ambiguities in any document.  Many common law rules of textual interpretation are part of that very useful machinery. Thus, common law rules are part of the interpretive method that helps answer the charge of modern critics that the Constitution is indeterminate –so vague or ambiguous that judges must simply rely on discretion to choose the better answer to contemporary questions.

I would also add that, as Mike Rappaport and I note in our forthcoming book Originalism and the Good Constitution, (Georgetown Law Journal link, see here) that the authority for judges to follow precedent depends on the historical use of precedent in the largely common law system that preceded the Constitution.  Thus, the common law background of the Constitution is crucial to making originalism a viable method of interpretation, because a judiciary that ignored precedent, however well established and however central to the functioning of society, would soon lose its legitimacy.

I also agree that much of state law is common law and that federal judges are bound to respect it unless it contradicts some federal law that passed in accordance with the Constitution’s enumerated powers. I would add that some of the success of state common law historically derived from the jurisdictional competition that the Constitution itself creates among the states by requiring free movement and goods between them.  Thus, it was possible for people to vote with their feet, exiting jurisdictions with bad common law rules and going to jurisdictions with better ones. In some cases even without moving, citizens in one state can choose to contract under the better rules of a different state.

But I do want to register a caution about the common law and the federal Constitution today.  As a general matter, it is the common law meanings and rules that existed when the Constitution was framed that are relevant to constitutional interpretation.  While the common law itself may change, its inherent mutability does not justify updating the meaning of the document as fixed in 1787. That transformation can be done only through the process of constitutional amendment.  First, I offer some reasons that the process for making the common law at least at the federal level is not likely as good today as it was before the Constitution was framed.  Second, I suggest that we do not need the method of common law updating to address constitutional change under our constitutional system.

In my view, the two factors most responsible for the making good common law norms in England—the Constitution’s legal backdrop—were jurisdictional competition and the central connection of lawyers with private law.  First, as Todd Zywicki of George Mason Law School has shown, the jurisdictions that generated the common law were often in substantial competition with one another. Within the royal court system there were many different kinds of courts—often with overlapping jurisdictions.  Also available to hear disputes besides the King’s bench were ecclesiastical and local courts.  Judges in these various courts generally were paid by the case and thus had incentives to attract litigants by providing efficient rules. Litigants had substantial ability to exit courts that did not.

Second, lawyers as a class were closely connected to merchants. Most law was in some sense private law. The large, regulatory state was unknown at the time. As a result, lawyers and judges came from a milieu sympathetic to legal rules that fostered commercial liberty and efficiency.

New federal common law rules, including common law methods of interpreting the Constitution, would not be minted under such favorable conditions today.  The federal government has a unitary federal court system with monopoly power over federal law. (State courts can interpret the Constitution and some federal laws but they are subject to the supervision and reversal of the Supreme Court.)  Litigants do not have the same ability to exit the federal courts as they did the courts of the English common law.  Thus the supply side structure for common law today is not as favorable as it was in its golden era.

Second, the lawyer class is not as favorable as to liberty as it was in England or in our early republic.  Lawyers, as Alexis De Tocqueville first noted, have a powerful role in the governance of the United States, and this is true by extension in any modern democratic society, because they are the experts in democracy’s legal mode of governance.  In a classical liberal society, one largely regulated by private law, lawyers tend to be a force for classical liberalism, because it is that legal framework which gives them their livelihood

But since the birth of the modern regulatory state and social democracy, the interests of lawyers have changed. They are the technocrats and enablers of regulation and redistribution. The more a nation intervenes in economic affairs to regulate and redistribute, the greater slice of compliance costs and transfer payments lawyers can expect to receive. They are no longer supporters of property rights or even a stable rule of law. Their interest lies frequently in dynamic forms of legal transformation and the uncertainty it brings. As a result, the  kind of common law produced by such a class will be very different and much less conducive to liberty than that created in England up to the time of the Framing.

Thus, if I understand Professor Stoner correctly, I may have a disagreement with his view of the value of common law reasoning in constitutional interpretation today.   Professor Stoner says: “The common law way of thinking explains how law can adapt in an orderly way to social transformation, while preserving a presumption in favor of tradition and thus, given our traditions, usually in favor of liberty.”   But I believe that common law reasoning to interpret the Constitution would be unlikely to be beneficial to liberty today in part because the Supreme Court faces no competition from other courts and because it sits in a legal culture that is not very friendly to the kind of liberty the Founders envisioned. In short, because of its centralized nature and the likely class of its personnel, it is not likely to discover good social norms.

I agree with Professor Stoner that as a positive matter the Supreme Court in the twentieth century often reasoned by analogy and built constitutional law on its precedents, but in doing so it has tended to depart from the Constitution’s original meaning and from its liberty protecting structure.  Benjamin Cardozo was undoubtedly a great common law judge on the New York Courts of Appeals, but when he ascended to the Supreme Court and applied common law reasoning to the Constitution, the results were not pretty.  His common law mantra that law “should not be indifferent to questions of degree” permitted him to strike down the National Recovery Act when it applied to a small chicken cooperative. But it also permitted him to disregard the line between commerce and manufacture in the Commerce Clause applied to larger enterprises.  The consequence was the obliteration of an important limitation on federal power reflected in the language of the Clause and one that protected jurisdictional competition among the states.

The more general difficulty with common’s law analogical reasoning is that it allows precedent to be piled on top of precedent with the result that the original meaning is left behind. The common law is this way the antithesis of a structure that privileges the text and gives it a generative force, no matter how dense the thicket of precedents. To say that the text has generative force is to not to deny that precedents may play a role  in constitutional law but their role should be an essentially subordinate one, whereas in common law they necessarily become the web and woof of the law.

To be fair, Stoner raises common law reasoning to address a question that originalists have not dealt with sufficiently: how to deal with social change. It takes a theory to beat a theory and thus let me close by briefly suggesting that the Constitution can confront the fact of social change, but it can generally do so without common law reasoning.  (I leave to one side arguments that particular clauses of the Constitution contemplate that they will be interpreted with common law reasoning as opposed to the common law rule of interpretation that the enactors expected to be applied.)  As Mike Rappaport and I discuss in our forthcoming book, the Constitution has a variety of ways to address social change without requiring judges to engage in common law reasoning.  First, the Constitution leaves the great majority of decisions about policy to either state or federal legislatures. The decisions of the states are disciplined by jurisdictional competition. It is true that the federal legislature’s powers depend on enumerated powers, but these powers are by and large principles. Principles are the second way the Constitution addresses social change.  For instance, the commerce clause is a determinate principle  whose scope may grow as the amount of commerce in the nations grows. But the principle itself does not depend on common law reasoning for elaboration.

Finally, the Constitution permits the polity to address social change through the amendment process of Article V.  It permits any generation no less than the Framers to put its values into our fundamental law. The process for doing so is strictly supermajoritarian, but properly so, because we want to entrench provisions only if they have substantial support from many quarters of society.  Constitutional entrenchments need to have the kind of support that suggests they will be beneficial for the long term.

Unfortunately, a common law style of constitutional interpretation interferes with all these three routes of addressing social change.   In the form of substantive due process, the method can eat away at the authority of states to make their own decisions about the right bundle of rights and responsibilities – a system that then allows the nation to evaluate which bundles work well.  In the interpreting limitations on the federal government, the common law method has tended to erode the principles that check federal power. Finally, common law methods enable the Court to try to anticipate the substantive changes needed in the Constitution. The result is that amendment process has fallen into disuse.

I very much doubt that Professor Stoner endorses all these developments. But I believe they are not unrelated to the common law process of reasoning rather than originalist methods of interpretation. In my view, we should celebrate the common law tradition as an indispensable background to the Constitution, but refrain from common law constitutional interpretation. The text of the Constitution forged through consensus supermajority rules provides an anchor for the polity that common law reasoning cannot now hope to replicate.