Common law originalism: the common law was not so common
By Kristopher A. Nelson
in November 2011
1300 words / 6 min. 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.
Note: this post is from 2011. Evaluate with care and in light of later events.
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).
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:
- Is it to be the common law with or without the British statutes?
- 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?
- 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.