This essay was authored by Professor James R. Stoner, Jr. for Nomocracy in Politics.
The republication last month by Nomocracy of Barry Shain’s review of my book, Common-Law Liberty (Kansas, 2003), and the gracious invitation of Nomocracy’s editor, give me the occasion to revisit the book and its argument a decade now after its initial publication. Since busy readers are more apt to read a review than a book, even a short one, I had first better try to clear up the confusions, although I would also refer readers to earlier reviews by law professors Robert Nagel and Stephen Presser, a lecture by Ninth Circuit Judge Diarmuid O’Scannlain, and a critical review by political scientist Wayne Moore for clearer summaries of the book itself.[i] I do not imagine that, in a brief exchange, Professor Shain and I could resolve our differences on the question of how to study political thought, but perhaps we could clarify the issues between us. And he raises an important practical question about the use of common law today that deserves reply.
I intended Common-Law Liberty as a kind of sequel to my first book, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992), and many of Dr. Shain’s misunderstandings—not to mention his complaints about my bibliography—would dissolve should he consult that text. My argument there was that American constitutionalism in general—and judicial review in particular—derives from two very different traditions: on the one hand, English common law, on the other, liberal political philosophy. These differ as much as Aristotle and Hobbes, or more than they, since the common law was not political theory but legal practice that emerged in an intellectual context defined by late-medieval Aristotelianism and in a culture infused with Christianity. Common law was the unwritten law of England, held to exist from time immemorial, recorded in decisions of the courts and reiterated in jury verdicts, occasionally declared in formal documents such as Magna Charta, described and transcribed in the works of commentators such as Sir Edward Coke and Sir WiIliam Blackstone, and carried over to the American colonies and preserved by the colonists as their inheritance. For the sake of historical clarity, and to clarify the meaning I attach to common law today, I have stressed in everything I have written that the classical understanding of common law—shared by the American Founders and thus a sort of original understanding vis-à-vis the Constitution—was emphatically not that common law was “judge-made law.” That definition, inaugurated by Oliver Wendell Holmes and now orthodox in American law schools, is the reason contemporary conservatives distrust or even deplore any use of common law in constitutional reasoning, and if common law is taken as a license for judges to remake the law and the Constitution at will, I agree. But no one has shown that common law was understood this way at the Founding nor that common law functioned in this way in the early years of the republic. To be sure, faced with new circumstances, judges applied old precedents through analogy, reasoning their way to new rules for new cases—for example, determining how the novel instruments of government themselves were to be interpreted—but they insisted that they were following law, preserving its authority and extending its reason. Key to traditional common-law judging was the presumption in favor of settled rules or precedents, at least until adequate reason might be given for their modification. The presumption itself was not arbitrary, but based on the supposition that the common law contained the wisdom of the ages; in the words of Coke, it was “fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection . . . as the old rule may be justly verified of it . . . : No man (out of his private reason) ought to be wiser than the law, which is the perfection of reason.” Parliament was a part of this process; Coke himself, once deposed of his chief justiceship, became author of the Petition of Right, the parliamentary protest against taxation without representation and imprisonment without a trial.
The English authors attached the common law and its continuity to the English monarchy, at least in principle, so however much the Americans appealed to common law and the unwritten traditions of the English constitution in preparing their independence, they needed another anchor of political authority when they announced it. It seems clear to me from the Declaration of Independence that they found the liberal political theory of John Locke useful in making their case. Moreover, Locke’s theory of property—seeing the origin of the right to property in labor and acquisition, rather than inheritance—was particularly applicable to their own experience in settling and developing a wilderness. In separating themselves from the English king and parliament, I argued, Americans did not separate themselves from common law, for they gave it continuous authority even as the colonies reconstituted themselves as states, but they also mixed liberal principles into their legal order. The Constitution is thus a mixed document: On the one hand it establishes a judicial power presumed to operate in the mode of common-law judges, including specific mention of several common-law rights, and largely leaves intact the governments and the common-law orders of the states; on the other, it is a written document formed by the consent of the governed in ratifying conventions and constitutes a federal republic limited to the liberal purposes of protecting against organized violence and promoting commercial development.
It thus mischaracterizes my work to say I think that the Founders shared “internally consistent commitments,” that “America’s political values and institutions derive from a unitary foundation,” and that the prime movers behind the Constitution were “long-dead ‘liberal’ political philosophers.” Dr. Shain seems not to have noticed that in presenting the common law as formative of American constitutionalism I meant to correct those among my Straussian friends who attribute that role wholly to Lockean liberalism, nor that the common law, as I present it, serves as carrier of multiple traditions, including the Christian. The mixed constitution I describe is not simply Aristotelian—though perhaps the notion of mixture is, even when what get mixed are opposing intellectual traditions rather than opposing social classes. Nor does Shain himself deny that ideas have consequences that outlive their progenitors: He writes, “What Stoner fails to recognize is that the political theory of the ‘Founders,’ again most particularly of Madison, finds its fulfillment in the liberal decisions of the Warren Court.”
Actually, I argue in Common-Law Liberty precisely that the liberalism that was part of the Founding has come—not always for the better, to be sure—to eclipse its one-time partner, common law, particularly in the twentieth century, as liberalism worked out the logic of an individualism detached from its original claim to be anchored in natural right and its original compromise with contrary traditions. The story of the progress of liberalism has been told by others; I join with those who doubt that its progress is unambiguous, inevitable, and irreversible. Looking at different streams of legal and constitutional development, my point in Common-Law Liberty was to highlight ways in which traces of traditional common law remain in our jurisprudence and to suggest paths that resourceful judges might take to moderate the judicial excesses of recent years and restore common-law ways of thinking. I did not propose a common-law method of judging, for the way of thinking of the common lawyer, unlike that of the liberal administrator, is not enamored of methodological solutions to human problems. Instead, restoration of common law would entail judges again concentrating on the distinctiveness of particular cases, not as vehicles for making social policy but as unique human difficulties to be resolved. It would entail restoring the presumption in favor of established precedent and tradition, allowing legal change in the absence of legislation (or constitutional amendment) only when the reasons for the legal rule in question have been undermined by changed circumstances or better access to truth; it would thus entail the presumption that the law was based on reasons and would make a good-faith effort to discover these before erasing settled practice because of newfound notions. It would respect the claims of nature without supposing that natural law or natural right could have unmediated influence on the decision of legal controversies; similarly it would respect the claims of faith. I put “liberty” in the title because the way of thinking in common law promotes individual initiative and responsibility—hence my beginning with an account of free speech as the right to tell the truth as one sees it without prior restraint, but with responsibility if harm is done—as well as political freedom, since common law is subject to remedy through concerted political action and the participation of juries has been central to common law for centuries. In short, Dr. Shain reverses my concern for the historical and the normative: He thinks I am being normative in embracing the liberalism of the Founding, when in fact I meant to be historical in pointing out the mixture of liberalism with common law in that fertile moment, and he thinks I am being (mis-)descriptive in claiming the continued power of common law, when in fact I was recommending its shoring up as a better norm.
Let me try to briefly illustrate two ways in which common law has appeared in American constitutional jurisprudence since the publication of Common-Law Liberty in 2003—not intending here to resolve either issue, but suggesting that they recall why it is important to pay attention to common law. In the disputes concerning the detainment of combatants at Guantanamo, the old common-law writ of habeas corpus became the focus of much debate. Establishing, as mentioned above, the principle that there should be no imprisonment without a trial, much celebrated by authors such as Blackstone, habeas corpus is mentioned in the Constitution itself, among the prohibitions upon Congress in Article I—“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it”—a mention that, in a backhanded way, proves the framers’ expectation that the writ continues in force as a matter of law by default, with no need for congressional legislation. Except in the case where an American citizen was held on American soil (Hamdi v. Rumsfeld, which I think Justices Stevens and Scalia got right in dissent: try him by law or suspend habeas corpus), I was less impressed than the Court by the argument that habeas corpus applies extra-territorially, though the cases are complicated by the question of the peculiar status of the Guantanamo base. Precedent and the constitutional text suggest that the writ runs only at home, but I suppose it might be argued that the character of warfare in our technological age at once diminishes the distinction between the individual criminal and the foreign combatant and allows invasion to include extraterritorial involvement in an organization that has attacked the American homeland. It does not diminish American sovereignty to consider this question, but in fact might be seen to extend it.
The second issue is the question of same-sex marriage, confined, at the time Common-Law Liberty was published, by the popular reversal of a Hawaiian court decision and by the Vermont legislature’s decision to enact only a civil union law. Here particularly it seems to me that the abandonment of the presumption in favor of tradition put an unexpected burden on the advocates of traditional marriage, though perhaps also exposed the vulnerability of any tradition: The reasons for a tradition’s establishment may be lost in the mists of time and its essential goodness taken for granted. The old common-law marriage, after all, was valid at law without any participation of the state in its formation, though of course common law took for granted the naturalness of the union of male and female, of “man and wife,” and indeed its permanence. Does that mean that the state ought to recognize any union that society accepts, even in the face of what had always been thought the law of nature and the law of God? Again, I think the presumption in favor of tradition rather than against it is important here; by the way of judging at common law, traditionalists need to give reasons, and judges ought to listen to them, not presume that all the reasons are on the side of change. As a constitutional matter, I am not arguing that there is a unique solution to this issue apart from the exercise of political liberty, republican choice. After all, as I had thought I made clear in the book, legislation has altered the law of marriage in significant ways, rescinding for the most part the rule of coverture—its last remnant is a wife’s taking her husband’s name—and expanding the grounds for divorce. The counsel of common law, it seems to me, is first of all to look for the reason in tradition, while allowing legislative change; I do not think that that entails judges reconstituting institutions long anchored in common law in the name of a Constitution made and amended to expand political freedom, not to remove it.
One final point: Although England had an established church, the common law was always understood to be independent of ecclesiastical law. Magna Charta recognized the freedom of the Church and presupposed what would later be called the freedom of the Christian man—a being with a conscience, bound by divine and natural law, and by human law not inconsistent with these, but free to act within the law, subject to the judgment of his community and ultimately to the Judgment of God. Although I did not intend my discussion of religious liberty to follow Walter Berns’s—I wrote unequivocally that I disagreed with his treatment of the Establishment Clause—I will not fault Shain from urging me to develop my thinking on this score, and I believe I have in several essays published over the past decade.[ii] Between the emergence of common law and the American Revolution, the English Church had been nationalized, so to some of the colonists the Revolution constituted a sort of restoration of the church’s freedom. To all, liberty of conscience became a first principle, and while liberty of conscience was not a maxim of common law, it does seem to build upon the common-law spirit of independence. The “New Order of the Ages” proclaimed on the Great Seal meant that, in contrast to European polities from the ancient polis to the monarchies of the Founders’ age, being an American does not require adherence to a common creed. There is a pluralism on first principles in America, and of course we divide into parties on matters of policy, but our shared adherence to constitutional principles and to the various constitutions of nation and state are enough to make us fellow citizens and to enable us to live together peaceably. So, at least, thought Washington, and I use the present tense because I think this structure of thinking about political matters remains intact. Our consensus, in other words, is anchored in our constitutionalism—something common law helped to form and could help sustain.
James R. Stoner, Jr. is Professor of Political Science at Louisiana State University and Garwood Visiting Professor in the James Madison Program in American Ideals and Institutions at Princeton University.
[ii] “Catholic Politics and Religious Liberty in America: The Carrolls of Maryland,” in The Founders on God and Government, eds. Daniel L. Dreisbach, Mark D. Hall, and Jeffrey H. Morrison (Lanham, MD: Rowman & Littlefield Publishers, 2004), 251–71; “Is There a Political Philosophy in the Declaration of Independence?” Intercollegiate Review, vol. 40, no. 2 (Fall/Winter 2005): 3–11; “Catholicism and the Constitution,” in Reason, Revelation, and the Civic Order: Political Philosophy and the Claims of Faith, eds. Paul R. DeHart and Carson Holloway (DeKalb, IL: NIU Press, 2014 forthcoming).