Stoner on the Disposition of the Common Law

James Stoner’s work on common law constitutionalism has been deeply influential on my own thinking about the interpretation of the religion clauses, as well as on more general questions of constitutional interpretation. My own approach in fact adopts something like Professor Stoner’s common law constitutional method (though its motivation for adopting that method is different than Stoner’s), distinguishing it from other common law constitutionalist methodologies (e.g., the approach of David Strauss). Here is an interesting post that Professor Stoner has just written on the disposition of the common law (in part it is a response to CLR Forum friend, John McGinnis). A longish bit:

To the authors of the Constitution, the Bill of Rights, and the Civil War Amendments, common law meant nothing like “judge-made law,” and the use of the modern supposition to untether constitutional law from the Constitution is unwarranted. Moreover, the original understanding of common law—as the unwritten customary law of England, registered in decisions of the courts, and carried over to the American colonies as an inheritance and adjusted to their circumstances—seems to me essential to the interpretation of the Constitution itself, which includes common-law language and takes for granted that the judicial power it established would largely operate by common-law forms: following precedent, recording judicial opinions, drawing the bench from the bar, employing trial by jury, and adhering to due process in myriad other ways . . . .

Originalism and textualism, for example, derive from maxims you can find in Blackstone’s account of how to interpret statutes, and I think they make sense not as free-standing theories of interpretation but in the context of all Blackstone’s adages, including, for example, that one begin by discerning whether the text declares the common law in writing or remedies some mischief, that one interpret criminal statutes strictly and statutes against frauds liberally, and the like. True, constitutions are not exactly statutes, only similar to them: Like statutes, they are put in writing; unlike statutes, they are made by a constituent authority and cannot be easily changed. Are the powers of government granted in constitutions to be interpreted strictly or liberally? What about rights that are reserved?

These questions fell to judges to decide, reasoning according to “the nature and the reason of the thing,” to borrow Hamilton’s words in The Federalist, and this was something common-law judges were trained to do, bound on the one hand by “strict rules and precedents” (Hamilton’s words again) and accustomed on the other to settling new cases through reasoning by analogy, as Edward Levi nicely explains in his Introduction to Legal Reasoning (Chicago, 1949). Understanding the common-law meaning of “judicial power” in the Constitution resolves what would otherwise be the paradox of judicial review, an unwritten power to enforce a written Constitution. And it makes perfect sense of constitutional passages like the Due Process Clause or the reference to “other rights” in the Ninth Amendment. These are not blank checks given to judges, but indication that there is a rich texture of established though unwritten law that they are charged to remember. Hamilton, again, indicates as much when he writes approvingly of the ability of judges “to mitigat[e] the severity and confin[e] the operation” of “unjust and partial laws.” . . . .

Leaving the Constitution to be interpreted in court by judges trained in common law meant it was in the hands of men who habitually looked to find the law applicable to the case before them, not who set out to replace it. When called to interpret the Constitution, the presumption in favor of the authority of the text and its original intent might be heightened, given its sovereign source, but precisely because the Constitution was meant to endure, its meaning had to be adapted to novel circumstances. One can’t avoid asking what comprises a constitutional search in an age of electronic communications, or what is “commerce with foreign nations, and among the states” when the manufacturing process from design through production is fully globalized and you can complete the purchase of almost any item from across the ocean at any time of day without leaving your home.

By focusing on the individual case, allowing the appeal to reason, settling the meaning of law to make property secure and the application of government coercion predictable, and including rules and maxims that leave individuals free to take initiative while holding them responsible for the consequences of their deeds, the common law was held by its advocates to be a great friend and promoter of human liberty. It had its critics, too, who complained that unwritten law was obscure, too much the preserve of the lawyers’ guild, and its favor for private property and individual liberty were inappropriate in a collectivist age. The abandonment of common-law rules and perhaps above all of the common-law spirit by many in the guild of lawyers over the course of the twentieth century no doubt contributed to the eclipse of common law—Professor McGinnis has valuable insights on this score—but probably more fundamental was the culture’s growing historicism: its skepticism toward any permanent standards of right and wrong, its consequent indifference toward tradition as a repository of wisdom, its expectation, not to say, encouragement of intractable partisan division given the supposition that questions of value cannot be rationally settled. Actually, common law really claimed to be common, to articulate a social consensus, more than it claimed to be unchanging; jury verdicts at common law have to be unanimous, and judges on the losing side of cases decisively settled typically feel constrained thereafter to accept the precedent and direct their argument to new issues, where they hope to limit a bad precedent’s future reach.

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