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The New Originalism: The Emergence of the General Common Law

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.

Reader Discussion

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on August 10, 2015 at 11:42:16 am

I like your statement, "By contrast, the modern understanding of federal common law, which is treated as Supreme Law of the Land, is unfortunately made up and improper."

Seeking the gist of your Erie v Thompkins citation, I found the depressing idea, “. . . federal courts engage in what is informally called an "Erie guess." See en.wikipedia.org/wiki/Erie_Railroad_Co._v._Tompkins#Subsequent_jurisprudence . Clearly, the federal court oversteps its physics-based authority respecting state courts.

I posted earlier that this entire argument seems tragic to this inhabitant. We fund all this scholarly debate about opinion regarding opinion. And it all came to be because of humankind's propensity to rebuke physics. Instead of promptly embracing discovery and understanding of how to benefit, humankind insists on defending so-called "God's law." For example, exploration was kept at bay for a millennium over fear of falling off the edge.

Now that "God's law" is falling apart, the Supreme Court is regarded as the new "God's law." This folly follows the tradition of resisting if not rebuking physics and physics-based ethics.

Anyone who rebukes physics begs woe. For example, God's law debates to this day the wisdom of one man owning another, while physics quite clearly informs humankind that slavery cannot function.

Let's follow Thomas Jefferson's advice and scrap the constitution for the USA. Start by updating the preamble so that it serves 2015 living with the 1787 limitations (seven stated and two implied goals), then write a constitution that serves A Civic People of the United States according to physics-based ethics.

Mimicking a statement by Ralph Waldo Emerson (Divinity School Address), folly screams from the walls of the edifice.

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Phil Beaver
on August 10, 2015 at 17:36:45 pm

Mike:

"“By contrast, the modern understanding of federal common law, which is treated as Supreme Law of the Land, is unfortunately made up and improper.”

I like this - especially (what I agree is the right) conclusion. It is both artificial and following from another point you made, it cannot be *common law* without the general support of tradition and the people.

That being in said, for those of us unschooled in the specifics, perhaps in your next post you might make some allusion to what is considered federal common law AND how those specifics are used by its advocates to attempt to justify an equal *supremacy* footing. (Hope that made sense)!

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gabe
on August 10, 2015 at 21:23:35 pm

"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."

I understand that the common law was written about in this way until the late 19th century, and perhaps this reflected the genuine subjective understanding of judges and lawyers of the time. But were the rhetoric and the self-conception accurate?

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djf
on April 02, 2016 at 16:01:05 pm

Common law is simply the law of the land. In America its Constitutional Law. What people don't realize is that anyone a part of the BAR association is actually practicing British Maritime Law and not Constitutional American Law. This occurs mostly because Americans do not know the law themselves, nor do officers. They are actually breaking the law to enforce policy (police). We have always had inalienable Rights like the Right to Travel, or the Right to Bear Arms; but we consent away those rights under contracts like the drivers license.

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Sovereign Citizen

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