An Unconvincing Defense

Common-Law Liberty: Rethinking American

Constitutionalism, by James R. Stoner, Jr., is a short book of essays, half of which were previously published, that is guided by the best intentions. Professor Stoner defends the reasonableness and the traditionalism of the common law in opposition to contemporary theory-driven jurisprudence. In so doing, he displays a mastery of English common law and American federal jurisprudence. Unfortunately, one may be moved by his criticism of the contemporary Court and passionately wish for an alternative to it yet still find his defense of the common law unconvincing.

In an introduction, nine chapters, and conclusion, Stoner hopes to defend the central importance of the common law tradition to the formation of American law, its continued importance to American legal reasoning, and ultimately the need for more of it. He begins by distancing himself from the two positions that dominate contemporary American juris-prudential disputes: conservatives who adhere to the original meaning of the Constitution while eschewing the idea of a “living Constitution,” and their liberal opponents who oppose them on both counts. His vision of common-law constitutionalism, procedurally at least, shares much in common with the liberals.

In particular, Stoner stands in opposition to Justice Antonin Scalia, who “clearly thinks that it is either impossible or undesirable to revive the traditional understanding of common law…[for] far from being a solution to the excesses of judicial activism, the common law is, to his mind, its cause.” Scalia understands, then, what Stoner misses: that is, however valuable the common law may have been in the formation of Anglo-American legal norms, it ultimately cannot be controlled and, indeed, is a source of the contemporary legal excesses that Stoner otherwise decries.

In the first chapter, Stoner explores the common-law features of the Constitution and finds that the American Constitution and constitutionalism “cannot be understood without reference to the common-law tradition in which they were formed.” Yet we also learn that the English constitution from which so much of the American was taken was not based on the common law. Similarly, we are told that when America broke with Britain, it was driven not by the common law, but by the “natural-rights language of Lockean liberalism.” If these claims are true as stated, has not Stoner done much to undermine his own case? Indeed he has, and in comparison to the more powerful arguments advanced by J.P. Reid (whose dozens of books are never mentioned in this work nor are any of the works of the 1920s and 1930s “imperial” historians), Stoner does little to substantiate even the formative role of the common law. Moreover, regardless of whatever role the common law played in the formation of the American Constitution, the most prominent common-law features of the Constitution, according to Stoner, were rendered nuga-tory in 1938 with the Court’s holding in Erie Railroad v. Tomkins. By Stoner’s own admission, then, the common law neither played a dominant role in the historical formation of American constitutionalism nor continues to command much relevance.

Stoner next discusses the relationship between common law and free speech. The history of “free speech” from the Ancients until the end of the eighteenth century is compacted into five pages before he considers the “Alien and Sedition” controversy of the late 1790s. Here too, Stoner is unconvincing on the formative role of the common law. Indeed, Stoner cites Madison, who found that “‘the common law never was, nor by any fair construction ever can be, deemed a law for the American people as one community.’ And good riddance, too, he suggests.” What, then, is left of the common law as a formative device in the creation of the freedom of speech? Stoner fails to provide a compelling answer.

The next chapter, on the relationship between religious liberty and the common law, is no more satisfactory. Admittedly, given that the common law countenances the prosecution of blasphemy, heresy, and witchcraft, Stoner has a difficult case to make. In following Judge Michael McConnell, Stoner supports the importance of Christianity to early American political and legal thought, but this recognition does little to sustain the chapter’s thesis. Instead, more on point, Stoner minimally distances himself from the work of Walter Berns who finds that “the source of that solution” to America’s religious tensions “is modern liberal political theory.” His adherence to the political theorists’ belief in a secular liberal Founding, in tension with much of what he otherwise argues, trumps and controls both the common law and the political importance of Christianity in America.

Chapter four discusses the common law and abortion. Stoner makes a weak case for linkages in American law and then argues that a certain mindset, typical of seventeenth-century English common-law jurists, is missing in the current approach to abortion, where the rule of precedent or stare decisis is given pride of place and the equally important common-law standard of tradition is given no place at all. Fair enough; this is surely true. But what is gained by recognizing that today’s Court selectively embraces key elements of the common law? Is it likely that when this is pointed out, the majority will cease serving as a transmission belt for contemporary elite liberal opinion and instead begin to pay greater attention to American cultural traditions? Nothing in Stoner’s account provides reason for such optimism. Rather, almost everything he argues supports— though not by open intention—Justice Scalia’s belief that common-law jurisprudence cannotserve as a corrective to the dangers posed by the current Constitutional regime.

His fifth chapter, on the common law of the family, again leaves the reader confused as to whether he intends to show the formative power of the common law, its current abuse, its total eclipse, or the necessity of its recovery. Regarding the latter possibility, it would be good to know how to determine what elements of its traditional concerns deserve continuation. The central feature of family common law was coverture, in which the “legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband.” Is this to be restored? And if not, what is and why? Stoner pleads for the return of common law, but fails to provide clear guidance on what should be retained or how.

In the next three chapters, Stoner examines (1) the tension between the common-law right of peremptory challenge and the Court’s demand that all such decisions be scrutinized for potential racial or gender bias; (2) the way in which Federal courts, impatient with democratic processes, have taken over the legislative and executive roles of city- and state-elected officials; and (3) the changing relationship between commercial regulation and state police powers. Stoner is convincing in showing the increasing power of federal courts and their disregard of the limitations associated with a balance of power, but he continues to be much less so in showing the central importance of the common law.

The final chapter considers the relationship between the common law and the law of nations, most particularly as embodied in the 1820s work of Chancellor Kent. Stoner believes that there is much to be gained from following Kent in his adherence to the common law. Maybe. But I find it worrisome that Stoner holds that “Kent’s integration of the law of nations of his own day seamlessly into American law might make him appear to be a precursor to modern liberal internationalism, and it would be silly to deny some connection.” With such a linkage likely, in a world increasingly filled with idealistic men and women dedicated to bringing an end to national sovereignty, democratic governance, and above all the hegemonic power of a relatively populist and Christian nation, why should anyone sympathetic to these institutions want to lower the wall separating American and international jurisprudence? Stoner does not seem to understand how dangerous the common law, particularly a deformed one, is (and can be) in the wrong hands.

In his conclusion, Stoner recognizes the dilemma that his defense of common-law constitutionalism poses, but he is undeterred. He writes that “you have missed my point if you think that, by stressing the common-law context of constitutional law, I endorse the notion that constitutional adjudication should make the text of the Constitution as malleable as common law.” On the contrary, he argues “that constitutional meaning has or ought to have stability over time, and that the very possibility of such elemental constancy ought to be what guides all adaptation.” His intention is surely laudable. His solution is not and cannot serve as a remedy to the problems he has otherwise done so well to highlight.

There is a larger problem in Stoner’s work. In his treatment of early American history, he exhibits two tension-ridden sets of commitments: (1) an embrace of the centralizing liberal elites that were active in pushing for adoption of the Constitution, together with a simultaneous defense of localism and conservatism, assuming these to be internally consistent commitments; and (2) a belief that America’s political values and institutions derive from a unitary foundation, not one riven with disparate elements and traditions; that these were rationally guided by “the Founders”; and that these men were primarily moved in their political goals by the secular thought of a small number of distant and, often, long-dead “liberal” political philosophers. These confusions are not particular to Stoner but, instead, are common to the historiography produced by political theorists, whose training is ill-suited to understanding eighteenth-century American political thought and institutional development. Stoner, as a close and thoughtful student of the common law, knows better. Yet his treatment of American thought and culture is, unfortunately, not shaped by his skills as a historian of the law, but instead by the distorting filters of his teachers in political philosophy to whom the book is dedicated.

Stoner, I believe, personally endorses the highly localistic and conservative political culture of most Americans across the course of most of American history. Yet he wants also to embrace “the Founders,” particularly James Madison, who were committed to centralizing political power, weakening communal norms in defense of liberal individualism, and transferring maximal political power to unelected judges. What Stoner fails to recognize is that the political theory of the “Founders,” again most particularly of Madison, finds its fulfillment in the liberal decisions of the Warren Court.

Similarly, Stoner does not fully appreciate how little American eighteenth-century constitutionalism was guided by high political theory, nor how much it was beholden to British and colonial history and constitutionalism, Protestant norms, and the messiness of politics. What this understanding demands is careful history. Unfortunately, unlike an older and soon-to-retire generation of historians, more mid-career ones seem little interested in such matters; their political and methodological commitments stand in the way. Similarly, political theorists, most particularly those trained by students of Leo Strauss, are also unlikely to produce the needed history. Their inability likewise stems from political and methodological prior commitments. Trained to read carefully the dense works of political philosophy, their intellectual skills are not well suited to working with American pamphlets, newspapers, editorials, and declarations.

To claim, as many political theorists do, that American political ideas were, and are, the direct product of the static thought of a theorist long dead borders on the incredible. Yet this claim occurs with regularity and allows for those who practice such necromancy to shape contemporary American self-understanding in a way that, at the least, is highly inaccurate. Instead, what Americans need is a more accurate history of how their ideas developed, much like the common law so admired by Stoner, through practice rather than through theory—and a better understanding that unintended accidents, partisan divisions, and uncertainty had more to do with the development of American political thought and practice than did the work of distant political philosophers. Stoner, as a fine student of the common law, knows this. But as a political theorist, he doesn’t allow himself to recognize the same in America.

In his Common-Law Liberty, Stoner fails to demonstrate the formative power of the common law in American Constitutionalism. He provides the reader little guidance in determining which substantive elements of the common law, if any, are still active in contemporary American law and which of the superannuated merit recovery. He underestimates the dangers of a newly empowered common law in the hands of contemporary jurists. Instead, he offers us his fervent hope for a new regime of legal actors guided by a common-law respect for “reason” and “tradition.” However well intended, this work in the end is a romantic escape from confronting the ever present and continuously escalating dangers posed by judicial elites, both domestic and international, to American democracy and sovereignty.

BOOK DISCUSSED in this ARTICLE

Common-Law Liberty: Rethinking American Constitutionalism, by James R. Stoner, Jr. Lawrence: University Press of Kansas, 2003.