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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on December 09, 2012 at 13:31:29 pm

For all intents and purposes the Common Law is dead in America. Instead we have positive law and positive law judges mixed in with a modern version of Roman Mercantile Law. The Constitution and its Amendments should mean what they say and not be twisted with the "logic" of interpretation by 9 government appointed lawyers whose main job is the protection of the power of the State. In other words, even though we don't have the common law, at least the law should be able to be understood by the common man. In the end we have the tyranny of not a nation of law but a nation of powerful men. Politically considered judge made,fluid law which is the cause of the destruction of Republics throughout the long history of mankind.

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libertarian jerry
on December 26, 2012 at 21:11:33 pm

Some not fully related thoughts:

(1) I wish academics would distinguish, as Professor Stoner does, between common law, as the substantive customary law of England, partly imported to the U.S. from England, which rightly has its place in understanding our legal history, from "common law method," i.e., judge-made law, which is anathema to the rule of law.

(2) Common law method is worshipped now more than ever. It gets first place in most law school texts on legal methods. A new contracts casebook claims it is legal method. The text could have been issued by Langdell. It has no word of the UCC. The Environmental Law Institute suggests "Creative Common Law Strategies for Protecting the Environment."

(3) For eons, advocates of common law method have claimed how well it adjusts with the times. But I have seem precious few examples. Might someone provide a dozen?

(4) Justice Scalia,as a textualist, rightly excoriates law schools for focusing on common law method. In his new book Reading Law he comments: "This treatise has another purpose as well. More serious, perhaps, than the fact that some judges knowingly participate in acting as lawgivers is the fact that many judges who believe in fidelity to text lack the interpretive tools necessary to that end. American legal education has long been devoted to the training of common-law lawyers, and hence common-law judges. What aspiring lawyers learn in the first, formative year of law school is how to discern the best (most socially useful) answer to a legal problem, and how to distinguish the prior cases that stand in the way of that solution. Besides giving students the wrong impression about what makes an excellent judge in a modern, democratic, text-based legal system, this training fails to inculcate the skills of textual interpretation. What students learn about the canons of interpretation and other principles of textual construction they learn haphazardly, when reading cases in such text-based courses as tax law, securities law, employment law, environmental law, and administrative law.”

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James Maxeiner
on February 10, 2013 at 10:24:08 am

The common law is only dead because the people do not know that it is their right. The consitution and the Ordinance of 1787 (and 1789) and also the state constitutions protect that right. It is not taught or discussed. Common law is without the aid of statutes and is based mostly on legal right (ownership).


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Image of MickeyG
on July 31, 2013 at 23:05:58 pm

Haha you claim Scalia as a textualist but, he considers himself an originalist. Let's face it, anyone who can find corporate personhood in the Constitution has to be a friggin traitor anyway, so it don't matter what the moron calls himself. He is a traitor along with the other 3 RATS, Roberts, Alito, Thomas and Scalia. All RATS and should be s h o t on sight. Traitors one and all.

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RATS on the court
on October 15, 2013 at 10:03:37 am

The difference between Common Law and the other two (Statutory/Administrative) is that it does not require your signature. You contract with the State to 'drive', to 'register' what you own, to 'license' your marriage - the requirements of contract law are all met with these. Common Law is natural 'God given' law by birthright.

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Ron Sommers
on March 07, 2016 at 18:30:52 pm

Our government leaders have confused the people with changing words and wording.

Common sense - The Constitution is neither dead or alive. It is a document that America has accepted to follow as Americans. Given to us by wiser people that united this country from tyranny. The Constitution means exactly what it says and for the time it was written. It has been clarified through many documents like The Federalist Papers. The problem today is that not many people have common sense to know what the common law documents mean and tyranny along with greed is running amuck!

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LC in Texas
on October 24, 2018 at 10:38:34 am

The common law developed based on the need to explain the applicable law to juries in order that they could apply it to what they concluded to be the facts in reaching their verdict. Juries rightfully demanded to be informed of the applicable law, and it was the process of judges hearing arguments by counsel then explaining the law, coupled with the principle of stare decisis which led to records being kept of the essential facts and principles involved in lawsuits, that resulted in our common law.

It was eventually supplemented by the Law Merchant (incorporated int the common law by Coke), and with the consolidation of courts (which began to occurr in earnest in both England and the United States in the latter half of the 19th Century, commingled with laws developed by the courts of equity, the ecclesiastical courts (probate, divorce, etc.) and others (e.g., admiralty).

Today, given various developments (restriction of the criminal law to statutory prohibitions, uniform laws in many areas, statutory mandates as to insurance, and the like), the common law is principally active in the areas of contracts and torts, particularly negligence which somewhat overlaps with contract, but it is also alive elsewhere at least vestigially (e.g., real property).

Were it not for the lawyers and judges who gave us the common law, we woul likely know few of the liberties we now cherish, since they are developed by judges and established by the common law long before they were enshrined in our Constitution. (Keep in mind that the British constitution is unwritten.)

It was judges, not legislators in parliament, who first ventured that no man is above the law and that all men are equal before it. Independent judges seek universal principles and not pandering policies of the moment, as do vote seeking legislators, although both have their moments (good and bad).

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R. Thomas Farrar
on December 02, 2019 at 07:59:08 am
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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.