Towards a common law originalism.

AuthorMeyler, Bernadette

INTRODUCTION I. ORIGINALISTS' TAKE ON THE COMMON LAW II. THE COMMON LAW: A DISUNIFIED FIELD III. THE HISTORY OF THE COMMON LAW AS THE THEORY OF THE COMMON LAW IV. A COMMON LAW ORIGINALISM CONCLUSION INTRODUCTION

The specter of constitutional originalism, an approach once characterized as dead, continues to govern the federal judiciary from beyond the grave. (1) Critics, particularly those arguing for an unwritten constitution or an interpretation of the Constitution as a living document, have hardly been successful in persuading originalists that their vantage point, or cluster of vantage points, is flawed. (2) While the proponents of originalism are far from monolithic in their methods, this Article claims that a central feature of originalist approaches--the resort to a Blackstonian vision of eighteenth-century common law as a backdrop to constitutional interpretation (3)--faces several significant problems. These may not, however, prove fatal to originalism, but rather encourage its metamorphosis into a more dynamic creature, one with appeal both to originalists and living constitutionalists. (4)

In a number of constitutional contexts, originalists urge that particular terms and phrases--including "law of nations," "habeas corpus," "privileges and immunities," "otherwise re-examined," and "assistance of counsel"--should be interpreted in light of their connotations under the common law. (5) They also contend that the common law provides a key to understanding the meaning of certain constitutional provisions, such as the Eleventh Amendment, beyond their literal language. Originalists' invocations of the common law posit a fixed, stable, and unified eighteenth-century content, largely encapsulated in William Blackstone's Commentaries on the Laws of England. (7)

Originalists resort to the common law in part to constrain judges' interpretive discretion. (8) Under this rationale, the accuracy of judges' historical account matters little; the discovery of a definitive, externally supplied answer to a constitutional question constitutes the crucial component of the method. Yet this kind of formalism cannot provide a complete justification for an originalist stance; taken on its own, such reasoning would support reference to Robinson Crusoe as much as to Blackstone. (9) Other--and, in today's parlance, more democratically legitimate--limitations could be imposed upon judges' reasoning. Judges could, for example, be forced to look in every case to congressional statutes or state legislation and adopt the majority approach. (10)

Some additional reason must be supplied for selecting the common law of the eighteenth century as a relevant constraint upon constitutional interpretation. (11) The most plausible is the idea that the clauses of the Constitution possess meaning and that that meaning derives from the public understanding of the constitutional text at the moment of ratification. To the extent that originalists' recourse to a Blackstonian account of the common law is premised upon this assumption as well as the formalist argument, their approach is susceptible to historical critique.

Several problems plague originalists' approach to the common law as it stood at the time of the Founding. The manner in which originalists frame their appeal to the common law itself misrepresents the object of inquiry. They envision the common law as a set of doctrines that can be mined in constitutionally relevant ways. What Justice Scalia, for example, finds to praise in the common law tradition is a body of rules presumed to be clear in the eighteenth century, whereas what he disparages is a particular method of approach, that of the common law judge. (12) Yet it is not entirely possible to disaggregate these aspects of the common law. In order to understand the nature and limits of the "rules" attributable to the eighteenth-century American common law, it is essential to examine the internal orderings of the concept of common law at the time.

Defining the scope of the common law is exceedingly difficult; indeed, its parameters often emerge only out of shifting and often permeable sets of contrasts--between common and statutory law, between common and civil law, between common law and equity, and between common and local custom. At the same time, certain eighteenth-century usages of the phrase "common law" occur frequently enough to warrant describing it as comprehending at least four general aspects. The common law implied a particular arrangement of institutional authority--including a distribution of power between judge and jury and between common law courts and those of equity. (13) It also denoted a certain set of procedures and their relation to a number of what we would designate substantive principles. (14) Furthermore, it described a particular--although not our--relation to judicial precedent. (15) Finally, it provided a justification for legal authority in the form of appeals to the "ancient constitution." (16) To the extent that originalists' invocation of eighteenth-century common law represents an attempt to discern the meaning of particular provisions to the audience contemporaneous with the Constitution's ratification, ignoring the larger framework within which the particular doctrines of the common law functioned imperils the success of the enterprise.

Even when viewed with the originalist's spotlight on specific doctrines, the common law was far from a unified field at the time of the Founding, nor was it so conceived, as both the writings of the Founders themselves and contemporaneous legal commentary demonstrate. (17) Rather, the common law of the founding era partook of a number of disparate strands, with the colonies, and subsequently the several states, diverging from the British heritage. This situation resulted, in part, from the principle that only such parts of the common law were adopted as suited the condition of the colonies, but it also derived from the temporal disjunction between the moment of direct importation of the common law into the colonies at the time of their settlement and Blackstone's systematic formulation of the British common law in the middle of the eighteenth century. As a consequence, a single common law answer to a constitutional question often remains unavailable; instead, several distinct positions may present themselves.

Returning to the broader view of eighteenth-century common law, the jurisprudence of the common law suggested a conception of its identity as much more flexible and susceptible to change than originalists posit. (18) 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 only with the legal realists that judges made rather than discovered law. (19) Although insisting that the common law stemmed from a time beyond memory, jurists such as Sir Edward Coke and Sir Matthew Hale, whose work was received in America and lauded by members of the founding era, implicitly developed the theory that the common law was open to alteration through suggesting that, in law, history could be strategically deployed rather than only factually invoked. (20)

There are three reasons why the place of history in these early jurisprudences of the common law should inform an originalist interpretation of the Constitution. The first, which has been most eloquently articulated by Thomas Grey and does not appeal to most originalists, insists that the original understanding of a canonical text, like that of the Constitution, comprehends particular "expectations about the future process of interpretation itself." (21) In this case, it would include the common law's self-understanding of the dynamics of historical co-optation. A second rationale, which may be more palatable to the originalist, suggests that the jurisprudential context of the Constitution's invocation of the common law represents a necessary backdrop to an attempt at discerning the original understanding of the Constitution's common law terms. Third, the "pre-post-realism" of early common law jurisprudence, and the extent to which the "objective" legal use of history that originalists seek to implement was more rhetoric than reality even in the jurisprudence of eighteenth-century common lawyers, might force originalists to recharacterize the nature of their project.

In light of these critiques, this Article outlines an alternative, "common law originalism," and, through several examples from the Seventh Amendment, sketches its differences from, on the one hand, originalism as currently practiced and, on the other, living constitutionalism. (22) Common law originalism regards the strands of eighteenth-century common law not as providing determinate answers that fix the meaning of particular constitutional clauses but instead as supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively. It suggests further that the interpretation of common law phrases should be responsive to certain alterations in external conditions, rather than static and inflexible. This alternative originalism thus attends primarily to the questions presented by juxtaposing disparate versions of eighteenth-century common law and to the potential for reconciling assertions of historicity with the possibility of change.

Taking Justice Scalia's theories and their implementation as its primary point of reference, (23) Part I details the originalist approach to the common law, one grounded in a fundamental paradox--rejection of the jurisprudence of the common law combined with endorsement of Blackstone's summation of particular precepts of eighteenth-century common law. Part II then demonstrates the falsity of the claim that, at the time of the Founding, the common law was "uniform throughout the...

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