Common-Law Originalism 2019 Walter Berns Constitution Day Lecture

Common-Law Originalism 2019 Walter Berns Constitution Day Lecture “I want to suggest that the common law imbues the Constitution in more than just the technical language. The very term ’judicial power’ was meant to refer to courts established like common-law courts, where pleading was adversarial rather than inquisitorial, where precedent would be followed, where juries would be empaneled to find facts even as judges reserved for themselves the law, and where judges would ordinarily be drawn from the bar rather than separately trained. One sees all this taken for granted in Alexander Hamilton’s papers on the courts in The Federalist, or all but the Common-Law jury, which is of course separately named in the Constitution’s text. And just to be sure, the Bill of Rights was quickly added to the Constitution as Originalism part of the compromise that ensured its ratification, and many of these amendments put in writing the rights of due process anchored in common R law since as far back as the Magna Carta. 2019 Walter Berns Moreover, the very practice of judicial review, the power of courts to declare Constitution Day Lecture statutes unconstitutional and refuse to enforce them, makes no sense out- side of the common-law context in which the Constitution was formed. It is, after all, a paradoxically unwritten power to enforce a written constitution. That Americans put our Constitution in writing, unlike the unwritten constitution of England, was seen as a statute-like improvement on the old common-law way.” —James Stoner In honor of the anniversary of the signing of the US Constitution on Sep- tember 17, 1787, AEI’s Program on American Citizenship marked Constitu- tion Day with a lecture by James R. Stoner Jr. (Louisiana State University). Stoner’s lecture was the eighth in a series named for distinguished AEI scholar Walter Berns. Remarks By James R. Stoner Jr. Common-Law Originalism 2019 Walter Berns Constitution Day Lecture Remarks by James R. Stoner Jr. American Enterprise Institute © 2020 by the American Enterprise Institute. All rights reserved. The American Enterprise Institute (AEI) is a nonpartisan, non- profit, 501(c)(3) educational organization and does not take insti- tutional positions on any issues. The views expressed here are those of the author(s). The Walter Berns Constitution Day Lecture Series A scholar of political philosophy and constitutional law, Walter Berns wrote extensively on issues of American government and its founding principles. He authored 10 volumes and published widely in professional and popular journals and America’s leading news- papers. He was the John M. Olin University Professor Emeritus at Georgetown University and served as a resident scholar at AEI. He taught at Louisiana State University, Yale University, Cornell University, Colgate University, and the University of Toronto. He earned his master’s and doctorate degrees in political science at the University of Chicago. Berns served on the National Council on the Humanities from 1982 to 1988 and on the Council of Scholars in the Library of Congress from 1981 to 1985. He was also a delegate to the United Nations Commission on Human Rights. He was awarded the National Humanities Medal in 2005. In September 2011, then–AEI President Arthur Brooks an- nounced that henceforth the Program on American Citizenship’s annual Constitution Day celebration would be named in honor of Walter Berns in appreciation of his scholarly legacy in this field and his many years of contributing to AEI’s work. iii Common-Law Originalism James R. Stoner Jr. September 17, 2019 It will not have escaped the notice of my learned listeners this evening that the title of my lecture, “Common-Law Originalism,” seems to encase a contradiction or at least present a paradox. I’ll begin by discussing why this is so and then hope to persuade you that if both terms, originalism and common law, are properly under- stood, the paradox is resolved. I mean to argue not only that taking common law seriously should make one attentive to originalism but also that originalism, if it is to be complete, needs to attend to the fact that the Constitution we celebrate this evening was written in a legal environment formed by common law, that our written Constitution emerged from a tradition of unwritten law. So much, at least, I planned when I chose my title last spring. But reviewing the major decisions of the Supreme Court last term, thinking I would find a few illustrations to buttress my thesis, I discovered that in fact common law was subject to extended treat- ment in a number of the justices’ opinions, and I have become convinced that this is indeed no accident: As the new majority on the Court brings originalist argumentation to the forefront, the justices have noticed that to understand the meaning of constitutional language, recourse must be had to preexisting law, and that often means common law. Besides, the question of the authority of precedent, over against original intent, has naturally come to the forefront, as feebly grounded case law feels its frailty. All this gives a certain timeliness to what I have to say, or at least I’ll see whether I can persuade you of that, too, when I discuss several cases—which, being a political scientist and not a lawyer, I will 1 2 COMMON-LAW ORIGINALISM attempt to do in a manner that avoids tedious detail at the risk of technical error. Finally, since I think ours is still a republican form of government, I will conclude with a few words about what the common-law way of thinking means for legislation, in which those of us whose office is merely “citizen” might be thought, through our representatives, to have some say. In our politically polarized era—perhaps I should say, in this notoriously polarized era, for American politics have always been characterized by partisan division—the Constitution of the United States might seem to serve as a common point of reference. Whether Democrat or Republican, the overwhelming majority of Americans concede that the Constitution is something we have in common, the written rules that govern political competition and perhaps a few principles, especially concerning basic rights, that we all share. But a moment’s reflection or a little experience teaches that, whatever our unity regarding the Constitution as a symbol, in practice, partisanship reemerges when it comes to interpreting what the Constitution means in our world today. In one corner, we find the originalists, those who claim or at least aspire to interpret the Constitution according to the meaning given to its clauses at the time they were enacted: for Articles I–VII, in 1787–88, at the time of ratification; for the Bill of Rights, a few years later; for amendments 13 through 15, at the close of the Civil War and the beginning of Reconstruction; and so forth.1 Original- ists recognize that the courts and the Supreme Court have not always been faithful to the original meaning or have been mistaken when they have tried, but originalists insist that fidelity to the text is essential to vindicate the popular character of the Constitution, its source in “we the people” whenever we have chosen to engage in the “solemn and authoritative act” of constitution making.2 In the other corner, we find the living constitutionalists, who see in the imposition of the dry meaning of old texts either the dead hand of the past or a glove that conceals a political fist in the present.3 The “people” who wrote the Constitution long ago are emphatically not the people today, they remind us, or, given demographic change, even their ancestors, or at least not the JAMES R. STONER JR. 3 ancestors of today’s majority. There is much in the Constitution that living constitutionalists can live with—particularly the pro- cedural rules, although they find some of these, like the electoral college, chafe—and there are several principles they genuinely admire, for example concerning civil liberties (or some of them), majority rule, and equal protection. But they would interpret these expansively and treat them aspirationally, as goals for the future rather than confined by the specific meanings they had in the 18th or 19th centuries. It’s hard to say who is winning the debate. On the one hand, the originalists have had a couple of staunch advocates on the Supreme Court, including the late Justice Antonin Scalia and even more consistently Justice Clarence Thomas. Their approach is openly endorsed by one of the major political parties, and they have suc- cessfully developed a cottage industry of publication and debate in law schools, even though law school faculty trend overwhelmingly left—with liberal faculty now proclaiming their adherence to “living originalism,” a half concession. Although the original originalists did not reverse any of the major constitutional developments they arose to combat, they stanched the expansion of some— especially in the field of criminal law but also, hesitatingly, on the question of Congress’ commerce power—and they succeeded in gaining constitutional recognition for the Second Amendment right to bear arms. On the other hand, while the living constitutionalists have had some trouble developing a catchy name or jurisprudential the- ory, they have not only held on to the gains of the post–New Deal and Warren Courts but have even succeeded in expanding non- textual rights on questions of sex discrimination and especially sexual autonomy and its encumbrances. Theirs, they might say, is the vector of change, the only question being how quick the prog- ress. Besides, they point out to the party of originalism, there is nothing conservative about upsetting long-established precedents.

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