Rational choice theory might help explain why James Madison thought a little chaos could be good for democracy.
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.