One of the books that I’ve learned most from in the last few years is James R. Stoner’s terrific Common-Law Liberty: Rethinking American Constitutionalism (2003). Stoner’s thesis is not only that American constitutional law cannot be understood well without reference to the common law tradition, but that “the common law is a key guide to understanding the fundamental principles of our Constitution and a guide for deciding contemporary constitutional cases.” Common-law constitutionalism has been taken in different directions in recent years (see, e.g., David Strauss’ interesting work). But it is in Stoner that, in my view, one sees the purest and most convincing expression of common-law constitutionalism.
Here is a particularly insightful passage from the book (at 59) dealing with common-law constitutionalism with respect to the religion clauses.
To attend to the common-law moment in exploring the law of free exercise is, in other words, to examine as a source of law the American experience of religious liberty, as it can be collected from constitutions and statutes, and even from the laws and traditions of particular churches. Obviously, these various sources of law will not weigh equally in a court’s determination of a particular dispute before it, but it is characteristic of common law to determine the applicability of rules in the context of the facts of the instant case, not to seek a single rule or theory to encompass all imaginable cases. It is, for example, not irrelevant to such a consideration that common law itself arose in a particular religious context . . . . Nor is it irrelevant to such a consideration that American circumstances with regard to religion, at the time of the Founding and perhaps still today, are unique, and that those circumstances vary markedly from state to state. To recommend a common-law perspective, then, is to suggest avenues of inquiry rather than to propose a ready theory. Yet it does suppose a certain openness to experience, both in its deference to the wisdom collected in tradition and in its willingness to entertain the possibility of a genuinely new and unanticipated case.