In response to: Why You Can't Understand the Constitution Without the Common Law
We were not aware at the time that they were twilight years, that time just before Roe v. Wade was decided, when statutes on abortion were sustained in the courts and only occasionally struck down. That is in part why Roe v Wade came with a jolt of surprise. In one case, just a year before Roe, the Supreme Court in Florida struck down a statute that barred abortions except when “necessary to preserve the life” of the pregnant woman. The Court affected to find “vagueness” in that statute (though it would be hard to imagine how judges could have found any crippling vagueness in that standard even with the state of techniques and equipment at the time). But then the surprise that broke in on the judges: The legislature in Florida had never bothered to repeal the common law as it bore on abortion, even as the legislators sought to add more precision with a statute. And so, as the judges waved their judicial wands to sweep away a statute they found uncongenial, they brought back into effect a common law that made it unlawful to operate on a woman with the purpose of procuring an abortion if “she were actually quick with child”—which is to say, that she was carrying a living, growing human being. And of course the techniques for detecting that living thing in the womb were far more advanced then they were when those rulings of the common law were formed. The judges had inadvertently brought the Common Law back into force, and with it they brought a measure on abortion possibly far more restrictive than the statute they had struck down. 
James Stoner touches a deep truth in his essay when he remarks that “there is much about the common law that is alive today and plays no small part in supporting our lawful liberty. … [The] common law has been a means by which natural law or the law of reason has retained authority in American life.” The truth even deeper here is that the common law has provided the residual law, not only in the States, but in the understanding of those lawyers who framed the Constitution and shaped the founding period of our law under the Constitution. In the things closest to home, we find the materials here in the stuff of ordinary life and the abrasions that lead people to “go to law”—“Are you building on my property?” “This repair should be covered by that warranty.” “I lost that job because of the vicious lies you spread about me.” Before we had statutes on defamation we had complaints about libels and slanders, which furnished the ingredients for the law of “torts”: People are seized with the sense that they have suffered a “wrong,” and they want some kind of remedy, some kind of pronouncement with the gravity of law that they have in fact been wronged. It may be as simple and prosaic as that case that sprung up in San Francisco years ago, when a man was stood up for a date by a woman in Oakland. He was an accountant, quite given to reckoning billing hours. And he sued the woman for $38 to cover the cost of gas in driving, and for his time.
In so many cases of this kind, there may be no statutes at hand, and so the argument does really depend on what we may call that “natural” sense of right and wrong, or that natural sense of making arguments, giving reasons. Imagine, for example, the surprise of the first man sued for herpes. There were no statutes, and so on what would the argument depend? With the rudiments of moral reasoning the argument would have to focus on the ingredients of responsibility and knowledge: Did the man know that he had that condition? Did he know how the herpes was transmitted? And if so, what tenable reason or justification did he have for not alerting his partner in the sexual act?
Justice Holmes famously scoffed at the natural law and the notion of moral truths, and the most prestigious places in the legal academy are still more likely to reflect his state of mind. And yet, against that orthodoxy so entrenched, the persistence of the common law stands as the most muted and powerful refutation of what the most anointed figures in the law have professed to believe. Legislatures may try to declare a sweeping repeal of the common law, but the capacity to reason over matters of right and wrong, of the just and unjust, cannot be driven from the makeup of ordinary persons. As Aristotle saw, that capacity is simply part of the mint of our very natures. And it is the most telling thing that explains why humans are the only beings fitted by nature for the life marked by the presence of “law.”
But beyond the law touching our daily lives, the common law lives as well in those loftier domains of our constitutional law. In a speech on the Alien and Sedition laws before he had become Chief Justice, John Marshall is reported to have said that anyone who publishes a libel in this country “may be sued or indicted.” He could be sued for personal libel or tried for a libel that agitates the community or incites hatred toward particular groups. With the new Constitution came the First Amendment, exalting the “freedom of speech and publication.” But Marshall apparently assumed that nothing in that First Amendment, or any of those other amendments making up the Bill of Rights, would displace the world of law he had already come amply to know. In that world it was recognized that speech could become an instrument of wrongdoing, destroying reputations and businesses, inducing terror and shortening lives; and when it did, it could be restrained or punished by the law, along with any other acts inflicting harms. Whatever the First Amendment meant, it could not have swept away the common sense of reasoning about matters of right and wrong.
Justice Holmes thought it would be a decided “gain if every word of moral significance could be banished from the law altogether.” I had the occasion recently to return to Holmes’s book on The Common Law, and to see him straining to read the law through a lens that filters out the moral shadings: “What the law really forbids, the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise.” Or: the law was “continually transmuting … moral standards into external and objective ones , from which the actual guilt of the party concerned is wholly eliminated.” (Holmes, 33)
And yet the common sense of the matter would not reliably bend the rays to fit that lens. At every turn, in every branch of the law, the judgments would finally pivot on the familiar rudiments of moral reasoning. A scrutiny of the “early books,” he said, “will show that liability in general , then as later, was founded on the opinion of the tribunal that the defendant ought to have acted otherwise, or, in other words, that he was to blame.” [Holmes, 82] And of course no one could rightly be held blameworthy for an act he was powerless to affect:
Unnecessary though it is for the defendant to have intended or foreseen the evil which he has caused, it is necessary that he should have chosen the conduct that led to it. 
The Civil War had delivered Holmes from any lofty view of human nature, but even his “realism,” stripped of illusions, could not purge from his account the rudiments of moral reasoning that were always breaking through the record. One suspects that Holmes savored the primitive origins of law because he found there the primitive passions of justice that powered the law, even before they became refined into a moral sensibility. But more refined they did become, and it makes the record all the more charming:
King Alfred ordained the surrender of a tree, but that the later Scotch law refused it because a dead thing could not have guilt. …In Edward the First’s time some of the cases remind us of the barbarian laws at their rudest stage. If a man fell from a tree, the tree was deodand [i.e., an instrument or object forfeited because it had been the instrument causing death to a victim.] If he drowned in a well, the well was to be filled up. 
If we have moved beyond that precious but primitive state of mind, it is not because of conventions working their abrasions in a random way. James Stoner reminds us that the engine at work here was “reason”: “As it was a maxim of the common law that nothing against reason was lawful, the common law was thought … to sift out abandoned customs. In this way, albeit indirectly, common law might be said to adopt the law of reason or of nature. …”
When we think of that “sifting” of “abandoned customs,” I am drawn with a certain nostalgia to some of the most interesting common law writs that are no longer with us. Two of my favorites were acknowledged by James Wilson in his lectures on law: There was the writ de excommunicate capiendo (to arrest a person who had been excommunicated by an ecclesiastical court and yet refused to obey the sentence). Or the writ de heretic comburendo (a writ issued at the direction of the king for the burning of a heretic). In these pusillanimous times, as I’ve had the occasion to note, heretics are likely to be burned mainly on the beaches in Miami. But as James Wilson remarked, “from these parts [of the ancient common law] we are happily relieved: they are parts of the common law, which did not suit those who emigrated to America: they were, therefore, left behind.”
But why did they not “suit us”? Was it some mismatching of manners or fashions, something that did not quite fit the tone of this new tribe of Americans? Or were these parts of the law abandoned because they were strikingly out of accord with the principles that defined the way of life under this new American regime? In other words, were they discarded because they repelled us as morally unfitting—that they were, finally, unreasonable, unjust?
I raise the question because it tests a vexing point of division in the circles of “conservative jurisprudence.” Edmund Burke had appealed to the wisdom of “tradition” when set against the lure of “abstract principles.” And with a similar temper, conservatives in our day have recoiled from liberal, “activist” judges by identifying their vice as a temptation to move beyond the text of the Constitution and soar into the domain of lofty principles, with those high-flown sentiments somehow always coming down on the side of the Left in our politics. Some of us point up our persistent reliance on axioms of the law never contained in the text: “we do not hold people blameworthy for acts they were powerless to affect,” or “we presume in favor of the innocence of the accused and the burden falls to those who would prove him guilty and deserving of punishment.” When we do that, the persisting response has been that all of these things are simply contained in the notion of “due process of law” as it has come down to us from the English tradition. No need then to ask the question of just what the source of our confidence may be that these maxims are true. This is one of those key questions that springs from James Stoner’s commentary. He asks:
Does “due process of law” include the presumption of innocence and the requirement that criminal guilt be proven beyond a reasonable doubt? No originalist, and, one would hope, no judge anywhere in the United States would think of deciding that question without reference in some fashion or another to common law.
But when we do “refer” that matter to the Common Law, how is it to be resolved: Do we ask, “How long has it been around,” or do we ask, rather, “What makes it compellingly true? What makes it something that must be in place in anything that calls itself the ‘rule of law.’?”
Consider simply that axiom that stands as the anchor of the “laws of reason,” namely the law of contradiction: two contradictory propositions both cannot be true. That is one of those propositions that must be grasped on its own terms as true per se nota, and the telling sign of its truth is that we lapse into contradiction and gibberish if we sought to deny it. Now if we said, “two contradictory propositions both cannot be true,” do we add anything to its claim to our credence if we added, “And Aquinas also said it.” Or “It has also been put in the Constitution in Clause X.” I would submit that the judgment would have to hinge, not on the persons who endorsed it, or its inclusion in a text, but on the force of the principle itself.
But the propositions that form axioms in our law should have the same foundation in the “laws of reason.” And so why should we expect any different sense of the matter if the proposition put before is not the law of contradiction but that proposition Thomas Reid considered one of the deep “first principles” of moral and legal judgment: that “what is done from unavoidable necessity … cannot be the object either of blame or moral approbation.” [Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge: MIT Press, 1969) , p 361.] Even the conservative judges in our own day would not doubt that these axioms of this kind simply claim their respect as laws of reason, quite apart from whether they are in the text of the Constitution. And if that is the case, why do we find some of our conservatives jurists so distracted that they rail against the appeal to principles outside the text instead of concentrating their genius on the question at the core of the matter—namely, whether those new principles floated by the liberal judges can survive a hard test for their truth?
Justice Scalia has argued that the “right to keep and bear arms” in the Second Amendment had “codified a pre-existing right,” the right of a person to defend himself from an unjustified assault. [Heller] Judge O’Scannlain has argued that the Constitution can be construed to protect that natural right to self-preservation because there are ample grounds for believing that this principle formed part of the understanding behind the Second Amendment. But even if that were true, we would have to ask, What is the more “jural” question for the judge to be asking. Is it, “How many people who voted to ratify the Amendment understood it to incorporate the principle of self-defense.” Or is it: “Is that principle compellingly true? Must it not be rightful in any place for an innocent person to have access to lethal force if that were necessary to preserve his life from an unjustified assault.”
As James Stoner argues so rightly, the Common Law has kept the tradition of the natural law alive even in an age of moral skepticism. And unless it keeps distracting us with the romance of “tradition,” it leads us back, as Stoner says, to that test of reason that finally gives us, in any case, the true ground of judgment.