Some Examples of the General Common Law

In my last post, I noted that there has been a growing acceptance of the general common law among originalists.  One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.

Let me explore a number of cases where the common law has been recognized as legitimate by some originalists.  Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction.  The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.

But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law.  Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law.  He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.”  It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.

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The New Originalism: The Emergence of the General Common Law

Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought.  One is the shift from original intent to original public meaning.  Another is the shift from a focus on constraint to other justifications for originalism.  And a third is the acceptance by some of a construction zone.

I am not a fan of the way the term “the New Originalism” is used, in part because it focuses only on a few aspects of the changes in Originalist Theory.  But let’s accept the term.  There is one aspect of the New Originalism – of recent trends in Originalist Theory – that is not usually recognized: the emergence of a belief in the general common law.  This emergence relates to some of the other themes of the New Originalism – in particular a shift from a focus on constraint to accuracy about the original meaning.

Back in the 1980s, there was a leading view among originalists about the federal common law: it was unconstitutional.  This view was applied to the federal common law of Swift v. Tyson that was eliminated by Erie v. Tompkins.  This view was also applied to the “new” federal common law that emerged with Erie.  Both of these applications were justified by plausible readings of the constitutional text and connected up with the old originalism’s distrust of judicial discretion, which federal common law provides.  While Justice Scalia was one of the leaders of this approach, he was not consistent about it; I can still remember discussing with others our disappointment that the Justice had written a federal common law opinion in Boyle v. United Technologies.

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More on Construction: A Response to Larry Solum

In my previous post, I raised a question about originalist theories that employ the concept of construction.  I wrote:

The existence of construction raises an important textual question.  If a matter is within the construction zone – and there is no original meaning on the question – then is it part of the Constitution?  Put differently, if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?

And then I continued:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land (since only the Constitution, federal statutes and federal treaties are supreme law of the land).  Decisions within the construction zone would arguably not be entitled to displace either state law or federal statutes.

In the remainder of the post, I explored some possible ways that those who employ construction might address this issue.

In response, my friend Larry Solum has written a helpful response.  I would recommend that readers take a look at Larry’s post, which is interesting and constructive.  Here I certainly can’t capture all of the subtleties of Larry’s view or post. 

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Does a Judge Who Decides a Matter within the Construction Zone Enforce the Constitution? A Question About Construction

One of interesting questions in originalist constitutional theory is the relationship between theory and text.  Some originalists focus on originalist textual arguments, while some originalists argue, as a matter of theory, for originalism, but do so based on theory.  While this is a complicated matter, there is clearly room for both types of arguments.

This issue arises as to the practice of “construction.”  In originalist theory, some scholars draw a distinction between interpretation and construction.  Interpretation is the practice of determining the original meaning.  But what if, as these advocates of construction argue often happens, the original meaning runs out (that is, there is no original meaning as to an issue because the constitutional language is ambiguous or vague)?  Then, those scholars argue that the matter is within the “construction zone” and one must look outside the Constitution to answer it.  For these scholars, having to look outside the Constitution is not a choice that a judge makes.  It is simply the inevitable result of the original meaning running out.

In my own work with John McGinnis, we have been skeptical about construction and have argued that appropriate interpretive rules would avoid (or at least minimize) the need for construction.  But for purposes of this post, assume that we are mistaken and that construction is an important element of constitutional adjudication.

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The Unconstitutionality of Social Security and Medicare

Government social insurance creates some of the most serious problems in western style democracies.  At best, these government insurance programs place tremendous strain on the economy and reduce work incentives.  At worst, they may result in the bankrupting of the society.  In the United States, Social Security pensions and Medicare are the worst culprits.

There are, moreover, alternative arrangements that would avoid these problems.  Some people may favor a fully voluntary system.  Others may favor more government involvement, such as a compulsory private system in which individuals are required to save certain amounts for their retirement or are required to purchase health insurance on some kind.  (For a discussion in the context of unemployment insurance, see here.  For a book comparing private and government insurance more generally, see here.)

While there are arguments for each of these systems, the important point is that they would not involve redistributions.  In particular, they would not require the massive redistributions that these existing systems make from one generation to another – redistributions that are unfair, inefficient, and cause serious political problems. 

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Garrett Epps in the Atlantic on Clarence Thomas

In the Atlantic, Garrett Epps has a piece on Clarence Thomas.  I like Epps.  He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful.  And his book on the 14th Amendment was quite enjoyable.  But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas.  In fact, I think Epps was quite unfair to Thomas.  I thought I would respond to some of his major points.

First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC.  Epps notes that the “experience left him embittered.”  While Epps sort of presents both sides, he neglects an obvious inference.  The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false.  To be clear, I don’t know what happened between the two.  But the failure to note this obvious explanation for Thomas’s reaction is disappointing.

Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.”  This complaint is curious.  Thomas joined the three other dissents, which did mention these precedents.  Thomas wrote separately to discuss the original meaning.  Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again. 

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Six Posts on Departmentalism and Judicial Supremacy

Yesterday, I completed my series of posts on departmentalism and judicial supremacy.  My main point is that the issue turns largely on the history and that, while more research is needed, one real possibility is that the correct rule is a moderate judicial supremacy. Here are the original five posts: Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System Departmentalism versus Judicial Supremacy…

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Departmentalism versus Judicial Supremacy – Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedents

In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be.  Let me remind the reader of two points from my prior posts:  First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment.  Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).

While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was.  One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided.  Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.

One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent.  A single precedent did not appear to obligate a court to follow that precedent.  Such a precedent needed to be considered, but it was not binding.  Rather, it was a series of precedents that obligated a later court to follow the precedent.  See here.

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Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System

In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view.  Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution. The problem with this argument is that it lacks support.  The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations.  The question for departmentalists is to show that the Constitution actually adopted departmentalism. Here is what I regard as the basic textual problem with arguing that the new…

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Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History

In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law.  But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.

What then might that evidence be?  One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about.  For example, he notes that James Wilson said:

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.

One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it.  But Wilson need not be read that way.  As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.

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