Common Sense and Common Law

Common-Law Liberty:  Rethinking American Constitutionalism.
by James R. Stoner, Jr.
University Press of Kansas.  208 pp. $29.95.

For most people the term “common law” summons up quaint images of wigged British judges and piles of dusty law books. For many practicing lawyers and law professors such images represent the surface of a deeper and unamusing reality, an archaic system of legal thought. In that system judges superstitiously thought they could discover in prior cases an objective reality called “law.” Modern legal thought, so the story goes, is more realistic. It understands that judges inevitably make policy while deciding cases, and suggests that in doing so they should go beyond legal precedents to consider abstract moral principles, welfare maximization, and high political purposes. James R. Stoner, Jr., a political scientist, has some shocking news for those holding this conventional view. The common law, he says, is neither superstitious nor gone; indeed, if we would open our eyes to this “still-living tradition,” some of the worst attributes of modern constitutionalism might be abated.

Common-Law Liberty: Rethinking American Constitutionalism, like the tradition of common law judging that it describes, seeks to rise above politics to draw on and appeal to a more general consensus. For example, despite Stoner’s evident conservative inclinations, he strains to find common law craftmanship in Planned Parenthood v. Casey, the notorious case in which the U.S. Supreme Court refused to reverse Roe v. Wade. He sees limitations as well as strengths in aspects of Justice Antonin Scalia’s constitutional jurisprudence. Stoner emphasizes that the common law allowed governmental restrictions, not only to protect against license in the use of speech but also in the use of property. He severely criticizes the modern Court’s treatment of the family because that treatment ignores traditional understandings of marriage, but he disavows any intention to turn those older understandings into permanent constitutional requirements. And he separates himself from conservatives who sneer at the idea that legal meaning can change organically.

This effort to rise above ordinary politics requires the reader to pay careful attention, for it will be easier to assume that Stoner has a right-wing program than to notice his evenhandedness and his qualifications. But to miss the ways in which this book transcends ideology would be to misunderstand the nature of Stoner’s undertaking. That undertaking is primarily appreciative. Stoner wants to “cast light on what makes American constitutionalism a vibrant tradition and an important model of the political practice of human liberty.”

The substance of Stoner’s thesis is that the common law is not some vestige of primitive thinking that unaccountably lingers as an embarrassment to modern realism but is rather an unrecognized resource. Fidelity to prior cases, in this view, is not unthinking legalism but a way to build from experience and the wisdom of others; it is not antiprogressive either, because the common law requires that prior judicial decisions be gradually reformed into a coherent whole that is adapted to changing circumstances. Legal processes honored by the common law, including adversarial argument and a central place for juries, allow for full attention to factual circumstances and provide a role for practical knowledge. The emphasis on unwritten (or customary) law, the tendency to enumerate specifics rather than to assert principles, and even the common law’s historical provision for peremptory challenges in jury selection are all aspects of a deeper recognition that law should rest on intuition as well as reason, on consent as well as force.

Stoner makes a convincing case that the common law tradition was to some extent incorporated into the American Constitution and has persisted in important, if largely unrecognized ways to the present day. For example, he shows that the original understanding of freedom of speech represented not merely a triumph for enlightenment rationality but also an adaptation to the circumstances of the New World of the British position on seditious libel. The eventual accommodation between the Federalists and the Republicans denied the national government any authority to regulate speech critical of the state but allowed such regulation at the state level, subject to an enhanced power for the jury. This meant that American freedom of speech protected much more than the British common law’s condemnation of licensing schemes, while nevertheless retaining some part of that law’s insistence on the ideas of individual responsibility and of the possibility of consensus about what kind of speech is important. Turning to modern cases, Stoner suggests that the Court is increasingly blind to this aspect of our free speech heritage. By extending the protections for speech into areas like defamation, profanity, and fighting words, the Court is constructing an absolute right while undermining our devotion to truth and personal responsibility, which are what make the right worthwhile in the first place.

Stoner works through a range of areas––including the free exercise of religion, family law, racial discrimination in jury selection, patronage, property rights, and even the growth of transnational governmental institutions––to generate similar insights about the persistence and potential usefulness of common law thinking. To take the most controversial issue, on the right to abortion Stoner claims that the Supreme Court’s emphatic refusal in Casey to overrule Roe v. Wade was an instance of common law respect for precedent. But he notes that in Casey this respect for precedent was severed from respect for traditional legal understandings of both the family and the morality of abortion. Stoner observes, “It seems imperative that the [full] meaning of common law be considered if the fracture...in our polity brought on by abortion is to stand any chance of being healed.”

Of the many important questions raised by this book, perhaps the most basic is this: If common law thinking remains an important aspect of our constitutional law and if it is, as Stoner convincingly insists, an attractive aspect, why are both liberal and conservative Justices so blind both to its presence and its usefulness? One bleak possibility was suggested years ago in a brilliant essay by the late Michael Oakeshott, who argued that the modern rationalist does not recognize his own reliance on practical knowledge because rationalism in politics “involves an identifiable error, a misconception with regard to the nature of human knowledge.” Accordingly, it is possible that modern jurists and legal scholars are not merely blind to the virtues of the common law; it is possible, instead, that they reject the possibility that the kind of knowledge honored by the common law is knowledge at all. Consequently, they can respond to criticisms and failures only by relying more heavily on the kind of technical knowledge that they do recognize. They might be, as Oakeshott said of rationalists generally, “essentially ineducable.”

An alternative explanation is that modern judges are in fact not entirely blind to their continuing reliance on common law methods and that their respect for those methods has under modern conditions actually become part of the problem. Consider the common law’s image of the judge. He is a professional, a conveyer of unwritten wisdom, an interpreter of deep traditions, an architect of law’s intellectual coherence, a discoverer of higher law. To a large degree this exalted image is the image that the judges today have of themselves, and it is also the image that has been promoted by enthusiastic constitutional scholars. Thus, it is possible that federal judges (and their boosters in the legal academy) are not blind to the common law but are blinded by it.

Stoner never fully adopts this view, for he would regard arrogance as a corruption, not an expression, of the common law. But he does note in several places the arresting fact that two of the great constitutional excesses of our time––the relentless expansion of protections for harmful speech and the creation of the right to abortion––both have roots in opinions written by the greatest common law jurist of modern times, the second Justice John Marshall Harlan. Stoner may well be right that the common law conception of judging became dangerous when it was severed from its foundations in Christianity and natural law and that a fuller appreciation of common law traditions could reintroduce federal judges to the wisdom of restraint and the virtue of prudence. But it is also true that the common law contributed its own combustible potential to our present predicament.

Stoner’s writing is itself a demonstration of some of the admirable qualities that he sees in common law thinking. Since his purpose is to provide a fuller appreciation of the reality in front of us, he avoids grand theory and urgent recommendations. He pays careful, respectful attention to the specifics of cases that have been decided, but his reflections on these cases are not complacent or narrow; indeed, they are offered for the purpose of opening the possibility of incremental improvement for the whole enterprise of constitutional governance. While his writing is clear and often elegant, his points are subtle and emerge quietly from detailed examination of complex materials. In this way he seeks to enlist our consent rather than browbeat us into submission. All of this means that Stoner’s style, like the nature of his basic undertaking, demands a great deal from the reader. But for those who are tired of the strident argumentation and overly ambitious system building that is so often found in constitutional scholarship, Stoner’s book will be a welcome and valuable relief.

Robert F. Nagel is the Ira C. Rothgerber, Jr. Professor of Constitutional Law at the University of Colorado Law School.