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Summary
On Tuesday, James R. Stoner of Louisiana State spoke at AEI’s annual Walter Berns Constitution Day lecture. He argued that, although many conceive of common law and originalism as contradictory, the paradox of “common law originalism” can be resolved if both are properly understood. Honest originalists should be attentive to common law because it illuminates the meaning of technical language used in the Constitution. Ideas central to the Constitution, but not necessarily enshrined in its text, make no sense outside of the unwritten common law context in which the Constitution was formed.
The common law method, explained Dr. Stoner, places precedent at the center of legal discussion. This establishment of precedent is essential for stable, predictable legal practice. However, Dr. Stoner cautioned that the founders understood common law as ultimately grounded in and bounded by natural law, anchored in claims of justice, not merely custom.
Reviewing five major Supreme Court decisions, Dr. Stoner argued that common law has been subject to extended treatment in several recent opinions. That this corresponds with a rise in originalism on the court is no accident, Dr. Stoner asserted, as justices have realized that understanding constitutional language often requires knowledge of preexisting common law.
— Samuel Lucas
Also of Interest
2018 Walter Berns Annual Constitution Day Lecture with Diana Schaub AEI Event | September 17, 2018 http://www.aei.org/events/2018-walter-berns-annual-constitution-day-lecture/
The Constitution was drafted in a legal and political setting informed by unwritten common law. To grasp the Constitution’s original meaning requires attention to that context, not only for the interpretation of terms of art but also for helping gauge the framers’ intentions. Moreover, constitutional issues in our own day, from sovereign immunity to birthright citizenship, from freedom of speech to due process, gain greater clarity when viewed from a common-law perspective. The common-law tradition is deeply rooted in American constitutional democracy, a fact worth remembering in this politically polarized age.
Please join AEI for the eighth annual Walter Berns Constitution Day Lecture, as James Stoner Jr. traces out the various connections between American constitutionalism, the common law, and approaches to interpreting the Constitution.
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