Is the common law an obsolete relic of our history as an English colony, or is it still a principle of sound constitutional interpretation? Does it protect citizens’ liberty, or undermine it? How does common law interact with the evolution of our culture and legal system?
The Library of Law and Liberty explored these questions in their recent forum on the role of common law in the U.S. Constitution and legal tradition. James Stoner argues in the lead essay that common law is crucial if we are to understand, preserve, and develop that tradition:
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.
Hadley Arkes, a member of our Advisory Council, offers reflections in response to Stoner, concluding that “unless [common law] keeps distracting us with the romance of ‘tradition,’ it leads us back . . . to that test of reason that finally gives us, in any case, the true ground of judgment.”
John McGinnis echoes some of Stoner’s arguments but takes a more cautious view of the contemporary value of common law:
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 [unlike England's royal court system] 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.
He then puts forward several ways that “the Constitution can confront the fact of social change . . . without common law reasoning.”
Finally, Hans Eicholz chimes in on the Liberty Law blog to compare the relative advantages of continental Europe’s civil law system and the Anglo-American tradition of common law.