Report

American Enterprise Institute

In honor of the anniversary of the signing of the US Constitution on September 17, 1787, AEI’s Program on American Citizenship marked Constitution 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.

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Introduction

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 understood, 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 treatment 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 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.