Some Examples of the General Common Law

In my last post, I noted that there has been a growing acceptance of the general common law among originalists.  One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.

Let me explore a number of cases where the common law has been recognized as legitimate by some originalists.  Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction.  The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.

But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law.  Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law.  He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.”  It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.

But the general law in diversity cases became more problematic over time.  Over time, the federal courts extended Swift to other areas where it is less clear there was a general common law and where the states may not have thought of themselves as following that law.  Thus, Erie may have been correct to eliminate the general law in many areas, even if Swift was correct as of the time it was decided.

While diversity cases involve law that the states could control if they chose to do so, there are other sources of general law that involve areas where the states are preempted by either federal constitutional or statutory law.  One of the strongest arguments against using general common law in areas where the state has applicable law is that the state law should take priority – since the state has authority to legislate in the area.  Thus, if a state clearly indicates that commercial law should be governed by state law (and Congress does not preempt that decision to the extent it has authority to do so), then state law applies.  But if the state does not have authority in an area, because either the Constitution or federal statutes have preempted its authority, then the general law might apply.

In my view, an example of this sort, where general law governs, is precedent concerning the U.S. Constitution.  This argument, with certain variations, was first made by John Harrison.  The basic argument is that there is no other source of law for such precedent (the precedent rules cannot be plausibly found in the Constitution) and that the precedent rules had the characteristics of general law.  Moreover, either the Constitution or federal statute (or both) render the state law of precedent to be invalid as applied to federal constitutional law in federal court.  (Precedent applied in state court as to federal constitutional cases is a more complicated matter.)

A new area where people attempt to argue for a common law rule is liquidation.  James Madison argued that an unclear law did not have its meaning liquidated until a series of decision had fixed its meaning.  This liquidation appears not to have been restricted to judicial decisions, but to have extended to executive and legislative decisions.  It is possible that Madion’s notion of liquidation constituted a common law rule at the time of the Framing.  In that event, it is possible that this common law – if it has not changed in the meantime – would require constitutional issues that have been applied in a series of decisions to be followed.

The difficulty with this argument, however, is fitting it into the Constitution’s system for the common law.  More specifically, the Constitution allows the general law when either the Constitution or federal law preempts state law.  But it is not clear how state law is preempted as to constitutional issues involving liquidation.

Reader Discussion

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on August 14, 2015 at 14:22:09 pm

The idea of restricting the people to common law, common as that idea may be among lawyers, seems unconstitutional to this citizen. The preamble states that the people in their states, because they want to achieve stated goals, create a limited central government, the USA, to serve the people in their states. Powers not specified for the central government remain with the states or the people. The intentions of the preamble are to separate from both the Articles of Confederation and English law. The articles specify ways the people or the states can amend the constitutional limits on the USA.

There have been many offenses against the people, and their indolence has exacerbated the offenses until they now appear divergent: swinging up and down about the will of democratic people until loss of the republic seems inevitable.

This divergence is evident in Supreme Court Justice Kennedy's obsession with dignity. The cries of some 0.1% of the population who want same-sex monogamy, with the megaphone of another 3% who just want recognition, empowered Kennedy to ignore the dignity of children. The right to own their heritage without interference from adult contracts. The right of a girl to be reared by a mother instead of two men. The right of a boy to grow up without the potential to fall in love with one of his fathers.

The nation needs to reform from its fetish over its English past: common law and governance under a god, and begin to employ physics-based ethics. According to physics-based ethics a nation does not invade a nation that has not attacked it our an ally. Adults who are in love cannot deny a child its heritage. Persons who perceive a civic need cannot lie to persons who might fulfill that need. A person cannot try to force his/her vehicle into the space-time of another vehicle. No man can force a woman to remain pregnant. No person can own another person. The strength of physics-based ethics is everywhere you examine it.

I know that Adam Smith's propriety would dictate that I not communicate this plea to you. After all, physics-based ethics is unheard of. Even the originator, Albert Einstein, did not use that term in 1941. See http://www.samharris.org/blog/item/my-friend-einstein and read his speech. However, Einstein was speaking with Smithian propriety, so his message has been hidden these seventy-four years. I hope that ameliorates my seeming impropriety.

Please take interest and help establish A Civic People of the United States. The idea did not exist eighteen months ago, when I started urging people who attended library discussions to use the preamble instead of merely knowing about it. Now, there is a ten-point theory of collaboration that does not require changes in the constitution to implement. Please google Theory of Collaboration Of By and For a Civic People to read it. With your help, the theory can be in operation in another eighteen months or so. My goal is September 17, 2017, a Constitution Day in the USA.

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Phil Beaver
on August 14, 2015 at 14:30:58 pm

Sorry. That's "has not attacked it or an ally"

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Phil Beaver
on June 01, 2018 at 22:51:37 pm

If i am liable to pay for broken window that my son broke playing ball- then i am liable because he is my property. Property: what is proper and exclusive to me. ..my car...my dreams... my steady heartbeat (free of terror). you have no business raising my son or snatching him up because he is my property.. and if anyone touches my property inappropriately(what i define as inappropriate not another group called the legal society..or or any group.. nobody has superior interest in that child because nobody else manufactured that child [since you balk at "creation".. i guess youve never seen that stuff called "art" like a sunrise over the mountains].. then the offenders.. they might get an oblation from reading your article, but they ought to prepare themselves for their brains to be blown out. Kids are not public property. Period. There is no fetish for english law... but know that before the Magna Carta, nobody could actually own property... if i own property then who the hell has authority over my own life, property, and body more than i do? If you cant tell a pregnant mother to keep her human, then why can you tell people to not kill children? There is no difference in that utter fallacy of thought.

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