As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.
The next Liberty Forum is now available. Featured this month are tremendous essays from James Stoner, Hadley Arkes, and John McGinnis on the relationship between the unwritten common law and the written Constitution. To put it in Stoner’s terms: can we understand our Constitution, its central liberty protecting provisions, and can we even properly interpret it without a prior understanding of the common law tradition? Of course, America is founded on a primary act of separation from Great Britain that is built on first principles of independence and liberty, rooted we might say in natural rights and not the traditions of the common law. Stoner’s essay attempts to reconcile these contrasting historical and theoretical notions and demonstrate how our constitutional tradition is made stronger as a result of our different strands of constitutional thinking.
In “Peeling Back the Common Law” Arkes does not so much as disagree with Stoner as demonstrate the common law’s abiding connection with reason reflecting on experience.
But when we do “refer” that matter to the Common Law, how is it to be resolved: Do we ask, “How long has it been around,” or do we ask, rather, “What makes it compellingly true? What makes it something that must be in place in anything that calls itself the ‘rule of law.’?”
Consider simply that axiom that stands as the anchor of the “laws of reason,” namely the law of contradiction: two contradictory propositions both cannot be true. That is one of those propositions that must be grasped on its own terms as true per se nota, and the telling sign of its truth is that we lapse into contradiction and gibberish if we sought to deny it. Now if we said, “two contradictory propositions both cannot be true,” do we add anything to its claim to our credence if we added, “And Aquinas also said it.” Or “It has also been put in the Constitution in Clause X.” I would submit that the judgment would have to hinge, not on the persons who endorsed it, or its inclusion in a text, but on the force of the principle itself.
John McGinnis’s contribution “Common Law Constitutionalism: Tradition v. Interpretive Process” underscores the common law inheritance of our constitutional order while also pointing to the problems it can and has created in constitutional interpretation:
But I believe that common law reasoning to interpret the Constitution would be unlikely to be beneficial to liberty today in part because the Supreme Court faces no competition from other courts and because it sits in a legal culture that is not very friendly to the kind of liberty the Founders envisioned. In short, because of its centralized nature and the likely class of its personnel, it is not likely to discover good social norms.
I agree with Professor Stoner that as a positive matter the Supreme Court in the twentieth century often reasoned by analogy and built constitutional law on its precedents, but in doing so it has tended to depart from the Constitution’s original meaning and from its liberty protecting structure. Benjamin Cardozo was undoubtedly a great common law judge on the New York Courts of Appeals, but when he ascended to the Supreme Court and applied common law reasoning to the Constitution, the results were not pretty. His common law mantra that law “should not be indifferent to questions of degree” permitted him to strike down the National Recovery Act when it applied to a small chicken cooperative. But it also permitted him to disregard the line between commerce and manufacture in the Commerce Clause applied to larger enterprises. The consequence was the obliteration of an important limitation on federal power reflected in the language of the Clause and one that protected jurisdictional competition among the states.