Towards a Common Law Originalism
Meyler, Bernadette, Stanford Law Review
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
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. …