There is a foot-stamping petulance to the phrases “trans rights are human rights” and “trans women are women,” as though saying either makes it so.
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.