Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought. One is the shift from original intent to original public meaning. Another is the shift from a focus on constraint to other justifications for originalism. And a third is the acceptance by some of a construction zone.
I am not a fan of the way the term “the New Originalism” is used, in part because it focuses only on a few aspects of the changes in Originalist Theory. But let’s accept the term. There is one aspect of the New Originalism – of recent trends in Originalist Theory – that is not usually recognized: the emergence of a belief in the general common law. This emergence relates to some of the other themes of the New Originalism – in particular a shift from a focus on constraint to accuracy about the original meaning.
Back in the 1980s, there was a leading view among originalists about the federal common law: it was unconstitutional. This view was applied to the federal common law of Swift v. Tyson that was eliminated by Erie v. Tompkins. This view was also applied to the “new” federal common law that emerged with Erie. Both of these applications were justified by plausible readings of the constitutional text and connected up with the old originalism’s distrust of judicial discretion, which federal common law provides. While Justice Scalia was one of the leaders of this approach, he was not consistent about it; I can still remember discussing with others our disappointment that the Justice had written a federal common law opinion in Boyle v. United Technologies.
But something has changed over the years. Many originalists have come to recognize that the Framers’ generation accepted common law and that the Constitution sometimes allows general common law (in contrast to federal common law – see below). Much of this movement has been spearheaded by people like Brad Clark, Caleb Nelson, Anthony Bellia Jr., and John Harrison. My own work with John McGinnis has also followed this view.
The first point to be made about the new interest in the common law is to distinguish between the general common law and federal common law. The general common law does not constitute the supreme law of the land. And after all, how could it? The Supremacy Clause provides that the Constitution, federal statutes, and treaties are the supreme law of the land, not federal common law. By contrast, the modern understanding of federal common law, which is treated as Supreme Law of the Land, is unfortunately made up and improper.
The second point is that at the time of the Framing, the common law had a different meaning than it generally does today. It was not simply “judge made law.” It was generally thought of as real law – and therefore was properly applied where it was applicable. And its meaning was not whatever the judge thought was good policy. It aspired to a more objective meaning, either conforming to the customs of the people or to judicial precedents, or both.
In my next post, I will attempt to explain a bit more about how this new common law has worked its way into modern originalist approaches.