“Roman law” by Eugene Yurevich. CC BY-NC-ND 2.0.

It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law (see, e.g., Civil law and courts of equity: the common law is hybrid law and Civil law’s influence on American common law: the appeal).

Another interesting story of the influence of civil law involves a push early on in the history of the United States to bring in civil law approaches, in part as a means to distinguish American law from English law, as well as to help unify the laws of disparate states. Then as now, too, civil law–which emphasizes statutory rules over judicial lawmaking–was seen to reduce the potentially arbitrary power of an unelected judiciary.

In “The Attraction of the Civil Law in Post-Revolutionary America,” Peter Stein quotes Sir Henry Maine as saying in 1856 that the Unites States was not part of “the common-law camp,” but instead had ceased to adhere to the single English (or New English) common-law model by 1825 (403). Instead, claimed Maine, Roman law was “fast becoming the lingua franca of universal jurisprudence” as many newer American states were looking to it for their “substratum” instead of English common law (404).

Early legal education, both in America and in England, contained civil-law materials, including Justinian’s Digests and Institutes, along with treatises (in English translation) on international and natural law by Grotius and Pufendorf, among others (405). Also, many early American legal educators were Scots, and Scotland is a civil-law country (405). James Madison, John Adams, and Thomas Jefferson all engaged with the civil-law tradition in their educations (405–06).

Unlike the perceive chaos of the common law, “[i]n eighteenth century eyes the civil law was associated with order, clarity and coherence” (406). After the Revolution, there was a sense that the United States needed its own legal approach based on the best the world had to offer:

efforts should be made to develop a particular American jurisprudence, which would not be a slavish imitator of the English common law, but would be eclectic–selecting the best principles and methods from whatever system they might be found in (407).

Additionally, although the common law had been seen as a check to the King’s power, it was also viewed with “considerable distrust … as an English product and a corresponding sympathy for things French” (410). Is it any wonder, then, with this desire to create a new nation, along with the positive perception of civil law, that civil law influenced early American jurists?

In the early part of the nineteenth century, American judges cited approvingly to both English legal precedent and to civil law treatises: “in New York, at least, they adopted a policy of eclecticism, considering the common-law and civil-law authorities respectively and then choosing one or the other” (409).

Especially in the areas of commercial law, maritime law, and international law, the civil law was particularly influential. English commercial law was revolutionized by Lord Mansfield in the period just before and after the Revolution, but his influence had little impact initially on the new nation (412). Instead, jurists turned to well-developed mercantile principles in civil law. In maritime and international law, Roman law–since so many European nations based their system on it–had especially force, and continue to do so today (421).

Although English precedent and English cases were used extensively in early America, early nineteenth century jurists lacked today’s judges antipathy to foreign precedent and approaches. Caleb Cushing wrote in the early 1800s:

The common, civil, and customary law of Europe have each precisely the same force with us in this branch; that is, our courts study them all, and adopt from them whatever is most applicable to our situation, and whatever is on the whole just and expedient, without considering either of course obligatory (422).

But by 1850, writes Stein, civil law had faded from American consciousness. Why?

1. The most zealous champions of the civil law held high office, but their ideas “never permeated down to the humdrum practitioner of the law.”
2. Codifiers of American law continued to turn to civil law statutes as models, but not to its general unifying principles; they looked instead to its practical implementations (like the Code Napoleon), and drew on English thinkers like Jeremy Bentham instead of Justinian.
3. Historians of Roman law then took over, emphasizing “questions of learned jurisprudence” and not “point[s] of great practical import.” (432)

Nonetheless, even though Stein sees the 1840s as the decline of civil law’s influence in America, I see point 2, above, as indicative that it continued to play a role in the development of American statutes–but one that is less obvious and more subtle than direct cites to civil-law authorities by American judges.

Sir William Blackstone (1723–1780) via Wikimedia

One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like Antonin Scalia) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent–which itself was hardly either stable or fixed.

In Towards a Common Law Originalism, Bernadette A. Meyler writes:

A certain self-consciousness, furthermore, characterized common law jurisprudence of the seventeenth and eighteenth centuries, a self-consciousness that undermines the view–expressed by Justice Scalia, among others–that we became aware judges made rather than discovered law only with the legal realists. … [But] this distinction may not entirely hold up; early common lawyers were hardly less disingenuous than their contemporary counterparts. (7)

Key in Meyler’s analysis are three points: (1) that the originalist approach rejects the jurisprudence of the common law, but endorses William Blackstone’s summation of particular precepts of eighteenth-century common law; (2) the falsity of the claim that, at the time of the Founding, the common law was “uniform throughout the nation (rather than different from state to state)” (a quote from Scalia, although to be fair he is speaking of the prevailing view in the early 18th century, not necessarily his view of that time); and (3) common law jurists of the seventeenth and eighteenth century centuries–although perhaps purporting to “discover” rather than “create” law–in fact engaged in fairly self-conscious processes of law-making when participating in common law adjudication (8).

Blackstone

According to Meyler, Justice Scalia relies heavily on Blackstone’s Commentaries:

Scalia consistently emphasizes eighteenth-century English common law, and the work of Blackstone, only secondarily alluding to any developments in the colonies or the states, and generally for the purpose of confirming or substantiating the applicability of Blackstone’s statements. (11; see, e.g., 518 U.S. 415, 452)

But the Commentaries were not “simply a synopsis of existing doctrine”: first, Blackstone intended them for a lay audience; second, “he aimed through them to show legislators the problems with the state of the common law so that they might be inclined to exercise their statutory authority in amending it” (12).

Thomas Jefferson, for example, wrote that the Commentaries were “nothing more than an elegant digest of what [students] will have acquired from the real fountains of the law” (18; “Letter to Judge Tyler”). Additionally, in the 1760s, “the common law itself was on the wane, and parliamentary supremacy had been definitively established” (12). In relation to the United States, Blackstone wrote at a time when the American colonies had already substantially received English common law: “as a result, Blackstone’s vision of the relationship between statutory and common law may not accurately represent the indigenous American tradition” (12).

The Uniformity of the Common Law

Justice Scalia has emphasized that specific common law meanings are generally identifiable:

[Scalia] established a fairly strong presumption of common law unity, suggesting that litigants must argue strenuously for the proposition that a single common law meaning did not inhere in a term or phrase because of divergent or conflicting strands … This emphasis on a singular original meaning is correlated with an account of the common law at the time of the Founding as a monolithic body unaffected by statutory developments. (13–14)

Meyler goes on to explain that “writings from the Founding era and materials from the states in the period following ratification demonstrate that the common law occupied a disunified field  in late eighteenth century” (17). In other words, there was not a singular understanding of the law; the so-called “common” law was not entirely held in common at all. Thomas Jefferson, John Adams, and James Madison all critically discussed the common law of their era (18). Jefferson, for example, debated whether Christianity was a part of the common law, and maintained that it was not (19). Adams argued about the temporality of the common law, and “insisted on the return to an early seventeenth-century version of the common law, that in place before the accession of Charles I” (21). He also “resisted the notions that the common law had been introduced wholesale into America,” and instead argued that only the common law that was adapted to the American context had been imported (22).

James Madison wrote a report on the basis of the common law in 1799–80, and asked several key questions that are also applicable to any uniform understanding of Constitutional meaning through reliance on the common law:

1. Is it to be the common law with or without the British statutes?
2. Is it to be the date of the eldest or the youngest of the Colonies? Or are the dates to be thrown together and a medium deduced? Or is our independence to be taken for the date?
3. Is, again, regard to be had to the various changes in the common law made by the local codes of America? (25)

While Madison went on to reject the idea of federal common law in 1824, he did endorse the necessity of interpreting the Constitution on the basis of “the Common law because it borrows therefrom terms which must be explained by Com. Law authorities” (25). For Madison, the key was that the common law helped explain concepts and terms. It provided “an interpretive tool for understanding constitutional phrases, [but] it could not … entirely dictate the meaning of many of the Constitution’s clauses” (26).

Additionally, the laws–even the “common laws”–differed between various colonies and between the colonies and England (27). There were even attempts to abrogate the “Common Law of England” on several grounds, including that the “the common law did not boast uniformity even in England” and the “disparity … between American and English versions of the common law” (28).

In effect, the common law provided useful background information to help define and understand terms and meanings, but it was not fixed enough to provide a firm foundation for a uniform, consistent interpretation of the Constitution.

Sophisticated Common Lawyers

Common lawyers at the in the eighteenth century were aware of “the mutability of common law”:

To achieve a thoroughgoing originalism, it is thus necessary to acknowledge that the flexibility of the common law method was not unknown to the Founding generation and instead provided the backdrop for the U.S. Constitution itself (33).

Key eighteenth century legal theorists–Coke, Hale, and Blackstone–based its authority both on reference to natural or universal law, as well as the historicity and popular acceptance of common law (36). Thus, precedents helps evaluate particular problems, but it takes interpretation in evaluating specific questions (40).

Suggesting the importance of contemporary acceptance in the authority of the common law, and not its universality, the English historian Matthew Hale “insisted that the continued acceptance rather than the origin of the common law was essential in endowing it with authority” (41):

This release from grounding the authority of the common law in its immemoriality enabled Hale to explicitly acknowledge legal change and to write the first account of the common law that openly presented itself as a history and spoke of the common law’s extraordinary emergencies.

If, in originalist fashion, one goes back to look at the understandings of the Founders, the result is not fuzzy view into a fixed understanding of the common law, but rather a fuzzy view into an equally fuzzy, quite sophisticated and rather (post)-modern view of the common law as mutable through time and dependent on popular acceptance for at least part of its authority.

By Robert Horwitz

Robert Horwitz’s The Irony of Regulatory Reform: The Deregulation of American Telecommunications, published in 1989, explores in depth the issue of telecommunications regulation at a time when telecommunications was once again in transition. My own interest is in the revolutions in communications technologies that occurred with the spread of American post offices in the 18th century, the telegraph in the 19th, and the telephone–and then radio, TV, and cable–in the 20th. Horwitz writes:

Telecommunications constitutes one of the four essential modes or channels that permit trade and discourse among members of a society, the other three being transportation, energy utilities, and the system of currency exchange, or money. … These services are “connective” institutions. They are central to the circulation of capital and literally constitute both the foundation and the limit for the overall functioning of a society. This is why … they are called infrastructures.

In 1989, deregulation of industries overseen by agencies created during the New Deal was in full swing. The irony for Horwitz is that “deregulation has most strongly affected those regulatory agencies whose actions have been least odious to business.” Thus, agencies created later and earlier than the New Deal were largely unaffected.

History

Looking backwards, Horwitz says that the “emergency of regulatory agencies constituted the building of a national administrative structures in a state which had been institutionally localistic and court-centered.” He argues that in the 19th century, the courts provided the oversight of economic development that would eventually be taken over by modern administrative agencies. This changed in the 1890s, after laissez-faire economic principles had created “a general crisis of social control.” The era of big business necessitated an (eventual) government response.

Image via Wikipedia

The Progressive Era saw the first new regulatory bodies emerge, largely “in response to popular political activism.” This gave us what would become the Food and Drug Administration, the Justice Department’s antitrust division, and the Federal Trade Commission. New Deal agencies, on the other hand, were created to bring stability to specific markets, and was generally greeted with enthusiasm by businesses desperate for such stability. In the 1960s and 70s, the regulatory focus shifted to more general social protections, especially of citizens as a whole. This was the era of the Environmental Protection Agency and the Occupational Safety and Health Administration.

The New Regulatory Agencies of the 20th Century

Regulatory agencies of the 20th century are a new phenomenon. According to Horwitz,

Regulatory agencies constitute a new structure of federal political power in the American political system; they represent a mixture of legislative, executive, and judicial functions.

In the American system of separated powers, they are an odd delegation of Congressional power: legislatively created, administered by the executive branch, and often given quasi-judicial responsibilities to hear and decide cases (with judicial review, of course, the level of which has varied over time).

Image via Wikipedia

While industry regulation serves a certain level of private interest–especially in the creation of stability–much regulation involves what Horwitz calls the “public interest”: “something larger, something more general.” Although the 20th-century regulatory agency was a new beast in the United States, “the construction and maintenance of infrastructures usually have been the responsibility of governments” as far back as 13th-century England (in the Anglo-American tradition, at least–but remember that the Roman state built aqueducts and roads much earlier, for example).

In the United States, the Commerce Clause justified federal government intervention. Because this economically focused rationale underpins the American regulatory approach, Horwitz argues that, “[i]f there is a general concept of the public interest informing state intervention into infrastructure industries, it is a commerce-based concept.” Thus, in regulation transportation, “nondiscrimination” has been key. The goal? To ensure “[t]hat carriers would serve the needs of commerce rather than inhibit commerce.”

Image via Wikipedia

In telecommunications, the “common carrier principle is really little more than a commerce-based notion of the public interest.” It “guaranteed access to the means of transmission.” Granting individual people access was really just “a logical extension of expanding the marketplace.” But despite this limited original impetus, “common carrier law embraces principles broader than commerce” as it made the telephone “available (in principle) to all citizens.”

Liberty

Image via Wikipedia

Telecommunications, though, involves essential aspects of liberty, especially the ideals of “free speech” embodied in the First Amendment to the United States Constitution. Freedom of commerce does connect to freedom of speech is historically linked to the liberal (in the tradition of Locke and Mill) ideology of the free market. Thus, the ideology of free speech has for many years been to encourage the “marketplace of ideas.” The assumption, says Horwitz, is that “a democratic public sphere will emerge consequent to the unimpeded, private actions of speech-entrepreneurs.”

But what happens when those “speech-entrepreneurs” are a few powerful corporations who demand significant money to utilize their infrastructure? The result can be that “those with wealth can disseminate their views, the First Amendment ‘right’ of most citizens is merely to listen and read. Yet a free marketplace of ideas implies dialogue.”

Image via Wikipedia

Today we have the Internet and the World Wide Web, which have the potential to turn everyone into contributors as well as consumers of information. Does this mean, then, that the natural form of these new mediums reduce of eliminate the necessity of their regulation? Or is regulation still needed to maintain a “free marketplace” of both ideas and commerce?

Deregulation

Deregulation can reduce the power of established cartels and allow for innovation and novelty: “It permits the resurgence of competition and the anarchistic play of market forces.”  This, though, is certainly not in the interest of established players–so why is modern deregulation so associated with big (entrenched) business?

Partly, says Horwitz, this is due to the divergence of “administrative rationality and economic rationality.” Regulatory agencies are conservative and bureaucratic by their nature, and the logic of rules be lost even as their enforcement continues. Irrationality–and the regulatory delay of agencies struggling to apply outdated rules to a complex environment–can lead to business uncertainty instead of stability. The burden on the regulated industries thus grows over time. This was made worse as the social goals of the 1960s and 70s created “new obligations, costs, and time delays.” The result? Deregulation won out in many–but not all!–contexts.

Spreading the news: the American postal system from Franklin to Morse By Richard R. John

In Spreading the News, Richard R. John writes about the development of the American postal system in the eighteenth century, and the police choices that leverages the system as a means of newspaper distribution.

The technological devices of the post and the newspaper were not new in the eighteenth century; horses, paper, and printing presses had been around for centuries. But the new American government prioritized newspaper delivery, and utilized postage fees from merchants to subsidize the development of profit-losing rural routes in order. Of course, the eighteenth and nineteenth centuries brought to Europe a new technological development of a different kind: bureaucracies and various corporate forms that more efficiently organized people and their actions.

Nonetheless, the technologies did not determine the outcome that John discusses, but rather enabled it. Instead, it was the policy choices in Washington, D.C. that determined (retrospectively, anyway) the outcome. These policies favored newspapers and avoided using the postal system (despite the fact that in the early nineteenth century it composed roughly 3/4 of the entire federal government and federal budget) to subsidize other federal activities. The result? A sense of national–and even world–identity beyond mere connection to one’s individual state or locality.

“Corpus Iuris Civilis 1663″ from Yale Law Library, used under a Creative Commons license

In “Salamanders and Sons of God,” an article in The Many Legalities of Early America, Mary Sarah Bilder writes about the “Culture of Appeal in Early New England,” and situatesthe embrace of the right to appeal by New Englanders within the larger English and Roman legal tradition. English law in the sixteenth and seventeenth centuries was based on common law, a system that relied not on statute but rather on custom, and

in which pleas to the judiciary required addressing “reason”–“the faculty acquired by training that extracted some workable rules from a formless body of immemorial knowledge”–rather than appealing on the basis of what any ordinary person could claim was justice, equity or mercy (Bilder 51).

In the traditional common-law system, there were no appeals. There were various “writs”: the “writ of false judgment,” the “writ of attaint,” and the “writ of error,” but each of them involved horizontal appeals, not appeals to a higher authority. The common law was what judges, ruling on the basis of reason, thought it was, not what a king or higher authority said it was, so appealing to a higher authority made no sense. No new evidence or hearing was permitted on these writs, but only a review of the complex rules and procedures of the common law:

A party who felt that “manifest injustice” had occurred had to find justice by “proof of a technical error (verbal or procedural) in the previous trial” (52).

Alongside the common-law courts in England, another system of of equitable courts existed as well. This system grew out of the ecclesiastical courts, themselves developed in the tradition of the Justinian code–in other words, civil law. In this system, which handled cases  “involving marriage and separation, probate and intestate estates, and slander and defamation,” among others, the goal was justice, and the procedures were more flexible (55). This system conducted appeals “in English, with depositions and interrogatories” and “was understood as a rehearing of both law and fact” (55). It drew on “an equitable theory of justice arising from medieval Roman canon law” (55). When Henry VIII replaced the Pope in England, he took on the Pope’s role as the ultimate appellate judge for courts of equity.

The appeal also took root in the corporate bodies of trading organizations. Formed by royal charter or patent, these trading corporations were authorized to maintain their own court systems, but with the right to appeal to the Crown guaranteed. Thus, Massachusetts and Virginia, both formed as corporations, were established with the right to appeal embedded into their systems. But the appeal remained even as the corporate structure disappeared, and was used as a means to establish and maintain a central authority.

Justice was important to Puritans. Thus, despite the historical connections to the hated Papacy, the Puritans embraced the “appeal to God” and its more secular variants as checks on injustice. Many “colonists thought equity was the point of the justice system,” and “colonial court systems did not separate equate courts like chancery from common-law courts” (68). (Interestingly, the combination of equity and common law meant that, for example, juries were required for appeals as well as for initial trials when the appeal involved matters of fact. )

In short then, the appeal represents the strong influence that the civil law has had on the common-law system. Today I often hear civil and common law described as opposite, distinctive, almost incommensurable systems, when in fact it appears that in actuality the modern American (and English, Australian, etc.) common law system is deeply indebted to the civil law tradition.

Portuguese map (1574) by Luís Teixeira

James Muldoon’s article in The Many Legalities of Early America, “Discovery, Grant, Charter, Conquest or Purchase,” discusses the surprising influence the Pope’s validation of Spanish and Portuguese possessions in the New World played in English justifications for their own American territory. But this justification was merged with an English focus on improvements to the land.

Unlike the extensive sixteenth and seventeenth century debates by Spaniards about the legal justification of their conquest, the English generally did not seriously argue over their own rights. Instead, despite their Protestant rejection of the Pope, they borrowed his language of allowing for territorial possession of “remote and heathen lands not in the actual possession of any Christian prince” (38). The English concept of “actual possession” required improvements to be made to the land (a rather Lockean concept, I would say), and the lack of such improvements created a “vacuum domicilium” that could be taken over by new settlers.

They wedded the concept of vaccuum domocilium to their idea that they had purchased other land from the Indians. Thus, land occupied by settlers was either purchased (if it had been inhabited) or occupied through improvement (if it had not).

Neither Virginia nor New England established their initial legal approaches on English common law. Instead, Virginia sought to pay its investors by extracting maximum labor from local inhabitants “through intimidation and brutality,” not English law (8). New England, on the other hand, looked to “the law of God, not the law of England” as they sought to unify religion and the state and create their religious utopia (8). Maryland, on the other had, sought to protect its initial Roman Catholic settlers by immediately adopting English law and insisting on its protections as more and more Protestants immigrated.

As the need to reassure English investors–who provided Virginia tobacco farmers the capital they needed–that they could recoup their debts grew, Virginia adopted English law. The interest was commercial, and the goal was to create predictability for investors, not to create fairness or justice for its inhabitants. As a result, the bulk of seventeenth century court cases in Virginia revolved around debt collection.

As the importance of protection Roman Catholics lessened and as Maryland began to adopt the plantation practices of Virginia, so too it began to adopt the focus on “black-letter law” that Virginia emphasized as well. Thus rule of law in Maryland joined Virginia’s approach of committing “to government by clear, unchanging dictates that would guarantee the certainty and predictability needed to entrepreneurial investment” (11).

The New England colonies differed in purpose and approach. They were founded on Puritan religious goals that emphasized the importance of religious involvement and the unity of church and state (53). Their farming did not consist of tobacco plantations, but rather emphasized  yeoman farmers who lived close to town and community. Their religion required adherence to community norms (which were strict), but also emphasized justice for both servants and masters. Self-restraint was key, and the community reigned in its most powerful members through increasingly codified laws. Religious belief was fundamental to the different outcome and approach in New England:

Puritanism and its related ideal of harmonious community … kept seventeenth-century Massachusetts from becoming the debt-ridden outpost of British colonialism that Virginia became (63).

New England cared about commerce, but debt collection was never a central concern of its courts. Instead, New England courts dealt with land titles, road building, and schools, as well as the collection of taxes that accompanied a focus on community and community building. English common law provided the backdrop to New England’s laws, but its colonists insisted on codification to increase fairness and reign in abuses by its leadership.

In fact, English common law provided the backdrop to all these American colonies, but “on the ground” social forces “gave legislation a preeminence in American law that it had lacked in England” (131). Religious values gave New England’s colonies a distinct approach that strongly differed from approaches fostered by the economic conditions of Virginia and Maryland. By 1660, there was a distinctly “American” feel to each of these areas approaches to law, but there was not yet a unifying power above all of them that would draw them closer together.

Image via Wikipedia

In The Magic Mirror, Kermit Hall and Pater Karsten write:

The [Plymouth] colony’s first trained lawyer, Thomas Lechford, did little to instill enthusiasm. He was disbarred for trying to influence a jury. Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutions of the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. Early lawyers were often laymen helping friends or women serving the legal interests of absent husbands. (Hall 21–22)

Still, despite the opposition to lawyers–perhaps arising from the complex and seemingly arbitrary rules of the early common-law system–the complexity of colonial legal life (each part of the colonies tended to have its own legal rules which more-or-less approximated some part of the very complex English system), and the importance of smoothing out trade, meant that lawyers became increasingly valued. Although there were no law schools, a “rough apprenticeship” process, along with self-teaching, emerged to prepare attorneys.

But unlike in England, according to Hall and Karsten, there was never sufficient legal business to justify splitting the profession into barristers and solicitors. Instead, “American lawyers survived as generalists” (Hall 22).

It was not until after the Revolution that some moves to formalize legal training emerged, but even though Harvard, Yale and Columbia started legal training in the mid-nineteenth century, it wasn’t until the late nineteenth and early twentieth century that the law school system as we know it today developed.

The Magic Mirror by Kermit Hall and Peter Karsten

The question of why we should do legal history at all is one that has occurred to me a number of times over the last few years. I have advocated–as I mentioned in previous remarks–the point of view that legal history provides access to more than just changes in statute or changes in judicial viewpoints. Legal history reflects broader and deeper social forces and social contexts. Each case reflects individual concerns of particular people at particular moments in time–but the judicial decisions (especially the appellate opinions) express larger social concerns beyond the specific case or controversy .

In The Magic Mirror: Law in American History, Kermit Hall quotes former Supreme Court Justice Oliver Wendell Holmes, Jr. (1902–1932) to support his version of my point:

This abstraction called the Law is a magic mirror, [wherein] we see reflected, not only our own lives, but the lives of all men that have been!

Hall sums up his perspective on what the law is by saying that “law is a system of social choice, one in which government provides for the allocation of resources, the legitimate use of violence, and the structuring of social relationships” (Hall 1). Law is part of a social context: “Without society we need no law; without law we would have no society” (Hall 1).

Hall is points out two different approaches to legal history, one internalist and one externalist (a distinction science studies scholars also make). Internalist legal history looked at the “black-box” development of legal rules in a straightforwardly–if complex–chronological fashion. Externalist legal histories address larger questions of casual relationships: “We want to know the law by what it has done, or failed to do, or by what has been done to it, rather than simply by what it was” (Hall 2).

Law, then, is individual and personal, but “its meaning reaches to the values of society” as well (Hall 2). We must, says Hall–and I find myself in agreement–pursue both an internalist understanding of the rules and processes of law as well as an externalist understanding of the laws connection to society as a whole.

John Marshall, Philadelphia Museum of Art © by MCS@flickr

The question of whether John Marshall, Chief Justice of the United States Supreme Court from 1803–1835, was an originalist is, of course, anachronistic, as the term had not yet been invented during his lifetime. Still, given the ongoing controversy regarding judicial interpretation today, it’s an interesting question to ask about one of the foundational justices in American jurisprudence.

Arguably, the original 1789 Constitution had produced a flawed judiciary: the court at the time of Marshall’s assumption of the role of Chief Justice in 1801 was “beleaguered by partisan strife and internal doubts about its role in the merging American government” (White 15).  It was John Marshall’s interpretation of the federal court’s Constitutional role in 1803’s Marbury v. Madison that granted it equal status alongside the executive and legislative branches as he asserted, and justified, “an active, expansive role for the federal judiciary” (White 15). Marshall’s approach drew on a fundamental, though contradictory, belief of his time: “Man was fit to govern himself, but he could not be trusted to exercise self-government in a moderate and disinterested fashion” (White 18). That was the point having a republic and, similarly, a judiciary.

Despite his profound role in shaping the judiciary into an equal partner in American governance, Marshall did not believe judges “made” law in the modern sense (White 23). Instead, Marshall saw “legal principles as omnipresent and immutable”–and in this sense, the Constitution, once properly interpreted, would never change over time without revision (White 23).  Judges should look to original texts and ascertain the meaning, but they must also infuse that with universal legal principles found beyond the text. He thus believed both in fixed meaning and in the judicial power to go “beyond the letter of the law” as written (White 24).

Marshall’s opinion in Gibbons v. Ogden reflected this dual approach. He began with a general principle: delegated powers could be “liberally construed” because the framers and the people “intended to use words ‘in their natural sense’” (White 32). If the sense over time had become imperfect, then one could clarify it by recourse to the document and by reference to “ordinary,” “common” and “natural” usage (White 32). In this way, Marshall embraced (in a sense, at least) originalism, while rejecting strict constructionism.

Of course, given how close Marshall was to the time of the original framing, he never had to deal with the more modern question of which ordinary meaning is more important: the one envisioned by the writers, or the one expected by people at the time of the case or controversy?

But the main difference between a modern originalist and Marshall, though, is his focus on the importance of omnipresent and immutable legal principles. These were more important even what was written, and formed the beginning point for Marshall’s typical decisions.  He focused first on these general principles, then logically reasoned from there: his “original bias,” according to his colleague Story, “was to general principles and comprehensive views, rather to technical or recondite learning.” (White 13)

He drew, then, on two sources of law for his decisions:

1. Universal and immutable natural rights, generally codified in the Constitution. Despite their codification, though, “American citizens had not given up those other rights conferred upon man in his natural state” (White 20). He thus grounded his rulings both in the Constitution and in “general principles which are common to our free institutions” (White 20). Marshall thus separates himself from true, modern originalists who might look to the words as written combined with the context of their writing. He would look at what was written, but then to universal ideals of law, not to the context or meaning attached by the writer.
2. Precedents, although still important, were not as valuable to Marshall. On a practical level, access to English cases was limited by distance and publishing costs, and few cases had yet been decided yet in the United States. Additionally, the American system was distinctly different from the English one, and there were very limited cases that interpreted the American constitution (White 20). He returned to precedents later as more decisions accumulated, but always liked to ground them in broader principles.

In short, Marshall was simply not a modern judge at all. He spoke at times like an originalist, while at the same time emphasizing the power of the judiciary to “say what the law is” and not to merely defer to the other branches. But he looked to the “natural” meaning of words as they were intended to be used, and focused on finding and not on making law. He remains a powerful influence on the modern judicial system, even if no one today would reason in the way he did then.