The Constitutional Logic of the Common Law.

• Author: Edlin, Douglas E.

ABSTRACT

This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning of Marbury v. Madison to trace through two syllogisms the legal bases for the Constitution's and the courts' authority, demonstrating that Chief Justice Marshall grounded these sources of authority differently in his opinion. The Article uses these two syllogisms to challenge the view that the courts' exercise of judicial review must depend, logically or legally, on the existence of a written constitution. Taken together, these two elements of logical reasoning help show historical and theoretical affinities between the US and the UK constitutional traditions that run deeper than the existence of parliamentary sovereignty in the United Kingdom or a written Constitution in the United States.

Table of Contents I. INTRODUCTION II. THE TRANSITIVE PROPERTY AND THE COMMON LAW CONSTITUTION III. THE MARBURY SYLLOGISMS AND THE CODIFIED CONSTITUTION A. THE CONSTITUTIONAL SYLLOGISM B. THE JUDICIAL SYLLOGISM IV. CONCLUSION For judicial control, particularly over discretionary power, is a constitutional fundamental. In their self-defensive campaign the judges have almost given us a constitution, establishing a kind of entrenched provision to the effect that even Parliament cannot deprive them of their proper function. They may be discovering a deeper constitutional logic than the crude absolute of statutory omnipotence. (1)

1. INTRODUCTION

   "In republican government," James Madison writes, "the legislative authority necessarily predominates." (2) In constitutional republics, a central conceptual challenge involves reconciling democratic will and legal constraints on government. (3) The famous solution of Madison (and his compatriots) was to divide the powers of government horizontally and vertically and to commit the powers of the national legislature to paper, alongside the procedural and substantive constraints upon that power. (4) The answer in the United States also involves recognizing the judiciary's independent authority to review the acts of the legislature to ensure their compliance with the Constitution's constraints upon the legislature's power. (5)

   In UK government, Albert Dicey explains,

   [t]wo features have at all times since the Norman Conquest characterized the political institutions of England. The first of these features is the omnipotence or undisputed ... sovereignty of Parliament ... The second of these features, which is closely connected with the first, is the rule or supremacy of law. (6) The UK constitution (7) is famously unwritten, and the conventional view of parliamentary sovereignty is that the powers of the national legislature are legally illimitable. (8) According to this view, the judiciary lacks the authority to ensure that acts of the legislature comply with the UK constitution, because this would be tantamount to subjecting parliamentary power to a legal limitation. (9)

   In the Anglo-American common law tradition, the challenge of reconciling democracy and constitutionalism has led the United States and the United Kingdom to develop contrasting methods of balancing the rule of the people and the rule of law. (10) According to the conventional view, constitutional rights in the United States are protected by the courts "against" the interests of the majority, (11) whereas in the United Kingdom, constitutional rights are defined by Parliament in the best interests of the British people. (12) While it is somewhat misleading to view the courts' role in the United States simply as protecting individual or minority rights against the majority, (13) I will discuss the dynamic in those terms because it is accurate to a meaningful extent and, in any case, its widespread acceptance is most important here. According to the familiar understanding of each nation's constitutional system, US courts possess the power to enforce constitutional limitations on legislative power because the Constitution provides the courts with the legal basis for doing so. (14) Conversely, UK courts lack the power to rule acts of Parliament unconstitutional because there is no foundational written charter on which the courts can rely. (15)

   The prevailing view is that the United States and the United Kingdom take divergent approaches toward judicial protection of fundamental rights because of the presence of a written constitution (and the absence of legislative supremacy) in the United States and the absence of a written constitution (and the presence of parliamentary sovereignty) in the United Kingdom. (16) This conventional understanding is misguided in two ways. First, the common law foundation of the UK constitution and the courts' historic authority to reform and refine the common law are the authentic basis for a judicial contribution to defining the scope and content of constitutional rights and legal constraints on government in the United Kingdom. (17) Second, the codification of the US Constitution does not, in fact or in theory, provide the legal foundation for judicial enforcement of constitutional rights and constraints on government action in the United States. (18)

   As a preliminary point of departure, it is misleading to differentiate the US and UK constitutions on the basis that the former is written while the latter is not--the presence of a written constitution in the United States does not and should not preclude the recognition and protection of unenumerated rights and unwritten constitutional principles, (19) and the absence of a codified charter in the United Kingdom does not mean that no foundational texts exist to define certain constitutional rights and principles of that system. (20) Both the US and the UK constitutions are grounded in the texts and principles of the common law tradition, which is defined in part by the generative (and nonexhaustive) set of sources that help to distinguish that tradition. (21) Each nation has its own distinct legal sources and its own distinctive legal tradition, to be sure, but it is a mistake to attempt to disconnect or isolate one common law nation's legal culture entirely from the broader common law world of which it is a part. (22)

2. THE TRANSITIVE PROPERTY AND THE COMMON LAW CONSTITUTION

   Elsewhere, I have discussed at length (23) the view of Jeffrey Goldsworthy, (24) and others, (25) that parliamentary sovereignty is best conceived as the "rule of recognition" of the UK legal system. A rule of recognition, according to H.L.A. Hart's famous conception, is the legal norm that identifies the rules of a legal system as distinctively legal rules, and distinguishes them from other sorts of rules, principally through the attitudes and actions of government officials. (26) The important point is that, according to contemporary defenders of absolute parliamentary sovereignty, the rule of recognition is defined by the actions of all officials of government, not by judges alone. (27) And in this respect, Goldsworthy argues that sovereignty serves better than the common law as the historical and conceptual foundation of the UK constitution. (28)

   In defending his claims regarding sovereignty's historical provenance, Goldsworthy argues that parliamentary sovereignty possesses a longer lineage in English legal history than common law constitutionalism. (29) He disregards statements of the common law as authorizing or recognizing parliamentary authority as intermittent and unimportant. (30) The problem with Goldsworthy's view, and with the broader debate itself, is the extent to which a positivist philosophical perspective influences these theorists' interpretations of the historical record and, in turn, how this view of the history predetermines their claims about the conceptual framework within which contemporary debates about rights protection, judicial authority, and constitutional development should proceed. (31) To be clear, this Article takes no issue with legal positivism as a legal theory. Indeed, one point of this Article is to explain that legal positivism compels no conclusion one way or the other about the absolute sovereignty of Parliament. (32)

   Like many sovereignty theorists, Goldsworthy argues that legislative supremacy better legitimates representative government in a democratic system (33) and that common law constitutionalism permits judicial authority to supersede the will of Parliament. (34) He then reverts to the rule of recognition in an effort to argue that the decisions of judges cannot by themselves alter the sovereignty of Parliament as the central feature of UK constitutional law and theory, which is accurate but somewhat beside the point. (35)

   Goldsworthy seeks to challenge the "modest proposition that the common law 'established the fundamental legal framework' of English government." (36) In challenging this proposition, Goldsworthy argues that the courts (and the common law) lack any organic authority to define or refine the meaning of the English constitution. (37) In attempting to situate that constitutional limitation historically, Goldsworthy discusses Matthew Hale. (38) But here, Goldsworthy superimposes his view of the modern British constitution upon his scholarly assessment of Hale's writing. (39) Goldsworthy claims that

   "Hale did not think of the common law as something that could be altered by judges." (40) Goldsworthy is concerned to establish...