Dec 2, 2012
Why You Can’t Understand the Constitution Without the Common Law

by James Stoner

Why, in a country with a written Constitution and a founding document (the Declaration of Independence) that is grounded on natural right, should we pay attention to the common law? Wrongly understood, as it usually is today, common law is held to be “judge-made law,” which is anathema to a constitutional order based on the sovereignty of the people that vests the power to legislate in elected representatives. Even rightly understood, as the customary law of England, brought to America by the colonists as an inheritance and adjusted to American conditions as thought reasonable, common law was principally a matter for the states, not the federal government, and by now it would seem buried under two centuries of statutes. Besides, some of its doctrines offend contemporary ideas about equality and justice, like coverture, the rule that a married woman’s property was subject to her husband’s governance because her legal personality was subsumed in his.

But without understanding common law, you cannot understand either the original meaning of the Constitution or the way that meaning has been adapted to remain effective in our own time. Moreover, there is much about the common law that is alive today and plays no small part in supporting our lawful liberty. Finally, common law has been a means by which natural law or the law of reason has retained authority in American life. Let me lay out the case for common law by making five points—and alerting the reader that arguing by enumeration itself is a characteristic mode of proceeding at common law.

First, there are many phrases in the Constitution whose meaning was defined by the common law of the era. Some of these are technical, such as the term ex post facto. In fact, from Madison’s Notes of the Federal Convention we learn that the Framers themselves consulted Blackstone’s Commentaries when writing the phrase, learning that it applied only to retrospective criminal laws, not every statute that altered future consequences of past action in matters of civil jurisdiction.[i] Other terms are more general: What is meant by the phrase “trial by jury” and by the phrase “due process” in the Fifth Amendment can surely be settled by any originalist only with reference to common law, for juries were its distinctive institution and “due process” its proudest boast. (It is no accident that some of the same judges who attributed newly invented rights to the Constitution in the 1960s and the 1970s altered the jury requirement away from the traditional jury of twelve whose verdicts had to be unanimous.[ii]) Even the term “judicial power” should probably be read to carry along common-law expectations: for example, that judges would be drawn from the bar, that written opinions would be given to explain judgments, that precedents would have the force of law, and the like—expectations evident in Alexander Hamilton’s description of the proposed federal courts in The Federalist Papers. Does “due process of law” include the presumption of innocence and the requirement that criminal guilt be proven beyond a reasonable doubt? No originalist, and, one would hope, no judge anywhere in the United States would think of deciding that question without reference in some fashion or another to common law.

Second, the very question of what kind of document the Constitution is and how it ought to be interpreted is better answered with an awareness of common law ways of thinking. Blackstone begins his Commentaries with a discussion of the study of law, of law in general, and of the specific law of England, and he includes both a general account of the rules for interpretation of statutes and an account specific to the interpretation of statutes in a common-law environment. First look at the text, then consider the intention of its authors, then weigh a whole list of factors: such are the general canons. Against a common-law background, consider whether the law declares in writing the previously unwritten common law or remedies some mischief it has caused, as well as the question whether the law is contradictory or against reason.[iii] He famously warns against finding contradictions too easily, distinguishing the argument of Sir Edward Coke in Doctor Bonham’s Case,[iv] but my point here is that Blackstone develops his common-law canons by reasoning about the nature of legal interpretation, with attention as well to specific traditions in English law, such as to interpret criminal statutes strictly and statutes against frauds liberally.

Do these canons apply to the interpretation of written constitutions? Blackstone of course does not say, leaving it to American statesmen and judges in practice and American legal scholars such as Joseph Story, James Kent, and later Thomas Cooley and Oliver Wendell Holmes (all of them also judges, by the way) in theory to rework Blackstone’s rules to apply to constitutions, again proceeding from consideration of the nature of the thing: Should the powers of the federal government be interpreted strictly or liberally? Should constitutional rights? I am not asserting that common law answers the question of how to read the Constitution, but its tradition does frame the way that question has been asked. Indeed, contemporary theories such as textualism or originalism absolutize one of the several canons Blackstone and his followers identified. Precisely because these canons rested on arguments from reason rather than authoritative pronouncement of some sovereign source—which, after all, would create a problem of infinite regress, for some law must identify the source—they could be adopted and adapted to apply to that then-new sort of law, a written constitution. That this happened case-by-case in practice rather than all at once, and that canons of construction remain competitive and controversial, is to be expected from a common-law perspective. From that perspective, the Constitution was not created ex nihilo as a social contract emerging from the state of nature, but as a reform of government in an existing union. To be sure, the framers amended the Articles of Confederation by replacing them, but the states were not dissolved when the Constitution was formed, and when the states themselves were formed out of the colonies, most of the common-law legal order of property and personal status within them remained intact.

This leads to my third observation: Parts of the old common law remain in force even today. Not only can land titles in the original states be traced back to colonial times, but common-law conceptions of real estate are still the basis of much state law, modified and supplemented by statutory law, to be sure, but not replaced. From medieval times in England, and certainly by the time of Blackstone, it was well settled that statutes could supersede the common law, though common-law judges often presumed that statutes operated only at the margins, leaving its core intact, and some common-law advocates like Coke argued that most Parliaments that changed the common law lived to regret it, for example in Tudor times. In modern times, whole areas of common law sometimes will be replaced by statutes: For example, early twentieth-century workers’ compensation laws were intended to wholly replace the complex common law of master and servant in the matter of liability for injury in the course of employment.

Read more:

http://libertylawsite.org/liberty-forum/...the-common-law/

Good article, Rev, bookmarking, thanks!

Great article and site. It's definitely one to put in the resource links!

The Common Law – Holmes (pdf)

http://www.hourofthetime.com/1-LF/Novemb...0Law_Holmes.pdf

Handbook of Common Law Pleading

By

JOSEPH H. KOFFLER

Professor of Law
New York Law School

and

ALISON REPPY
Late Dean and Professor of Law
New York Law School

1969

http://www.hourofthetime.com/1-LF/Novemb...aw_Pleading.pdf

http://isurvivedthezombies.com/the-right...-and-bear-arms/