A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
If common law is judge-made law, as every law student these days is taught to think and as every political scientist who bothers to notice it presumes, then one easily enough understands why it is viewed by patriotic American citizens with suspicion. Everyone who reads the Constitution knows that the legislative power is vested in Congress, not the courts. Everyone who follows the courts knows that their constitutional decisions are treated in the press as judicial policy-making. And everyone who can connect the dots would conclude that common-law is the seductress leading judges away from their proper function of doing justice according to law in particular cases brought before them, and into the heady business of rewriting the Constitution when lobbied through the vehicle of a high-profile case.
Justice Scalia put this charge memorably in his book, A Matter of Interpretation, saying law students are taught in their common-law courses the art of “playing judge, which in turn consists of playing king—devising, out of the brilliance of one’s mind, those laws that are to govern mankind.” And I think the same objection lies behind Barry Shain’s recently republished review of my book, Common-Law Liberty: Rethinking American Constitutionalism (Kansas, 2003), and even behind the more nuanced critique of my argument offered last year on this website by John McGinnis.
In Common-Law Liberty, as well as in my earlier book, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992), I made the case that the modern definition of common law is gravely mistaken. 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.
While acknowledging that judicial practice in twentieth-century America had drifted away from traditional common law—the real seductress was liberal progressivism—I argue that the restoration of sound constitutional practice depends upon a recovery of some basic elements of common-law judging. 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.”
For the most part in my books, I shy away from discussing specific rules or even maxims of common law, content to indicate that these are many and various, adapted to the different realms of human endeavor and subject to change as circumstances alter, indeed obliged to change to preserve the meaning of the rule. Instead I draw attention to the way of thinking of common lawyers, which I stress is not a theory or method of judging, but a disposition toward the practice of law in deciding particular cases. Common law judges start with a presumption in favor of settled law. Unwritten law is found in the previous decisions of authoritative courts, precedent having the force of law based on the elementary maxim of justice that similar cases ought to be similarly decided. Of course this means that the question of law in any particular case is first of all to determine what are the relevant precedents, and this is often a matter of dispute. If there is a statute that governs the case, it overrides common law, but precedents develop in the interpretation of statutes, too; Jefferson thought it a good argument against writing a new code for Virginia after Independence that it would take decades before the meaning of the code would be settled by precedents, whereas retaining common law with occasional statutory revision would be minimally disruptive.
It is a maxim of common law that nothing against reason is lawful, though this seems to have meant principally that rules of law must not contradict one another—for all its myriad rules and concerns, the law was understood to be a reasonably consistent whole—and secondarily that rules had to be adapted as circumstances changed. Written constitutions were new kinds of texts when the Americans began adopting them, but soon enough they were woven into the fabric of common-law judging: on the one hand, overriding even statutes when there was a contradiction between them, on the other declaring certain common-law practices in writing (habeas corpus, due process, and trial by jury, to name a few) and fixing them firmly in the Constitution.
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.
Common law includes natural law, as Hadley Arkes so nicely illustrated in his comments last year on this site, but negatively: Nothing against natural law would be part of common law, even if something of the sort—like slavery—might be imposed by statute, but most of the rules and maxims of common law fall into the category of what natural lawyers would call secondary precepts, matters deduced from first principles or determinations that might go one way or another in a given society, or more likely, some mixture of the two. As early as the seventeenth century, a leading writer on the common law, Chief Justice Matthew Hale, described change in the common law with the image of the Argo in the legend of Jason, whose every timber was replaced while the ship was at sea, but which remained the same ship, preserving the same integral form. By our time, legal change has certainly been more dramatic, but traces of the common law are still evident throughout our law, and it is my supposition—shared, I think, by some of my readers in the legal community, such as Professor Robert Nagel and Judge Diarmuid O’Scannlain—that if they were recognized and reinforced, not as fragments to be theorized but as an integrated practice to be recovered, reform of law would be more successful and the abuse of discretion for political purposes might be curbed.
Professor Shain accuses my account of being “romantic,” but he misidentifies my mood, which is classical: The common law as I describe it is rational and balanced, grand and simple, not steeped in sentimentality. If it is not quite Coke’s “artificial perfection of reason,” it is a noble art of doing justice in the daily business of social life, not a heroic intervention doing simple justice without a rule. Or did he mean it was romantic of me to suppose that something of the spirit of common law could be recovered in the midst of the modern administrative state?
The common law was not itself built on compromise; on the contrary, it emerged from an adversarial system, where cases have clear winners and losers, though it allowed dissenting judges to give their reasons, too. But in recognizing the wide array of incommensurable human goods and the immense variety of human practices that decent law might shelter, it forms men who are open to compromise, because they recognize the complexity of human interests and the difficulty of making peace among them. Is it really more realistic to tether law to one or another program for reform—toward a more comprehensive state or toward a purer market, toward more authoritative communities or toward more radical individual autonomy—as we watch the polity lurch now in one direction, now in another? Ultimately, I don’t expect law to be mended until the intellectual issues alluded to above have been addressed. But I do not see why citizens should acquiesce in law that promotes radical change without popular consent, when the resources of a contrary tendency are ready to hand.