A review of Common-Law Liberty: Rethinking American Constitutionalism, by James R. Stoner, Jr.

For some time now American law in general and constitutional law in particular have been seriously out of whack. Two linked historical developments explain how this happened. The first is the rise, beginning in the late 19th century, of the kind of legal positivism usually associated with the name of Oliver Wendell Holmes, Jr. Holmes believed that judges, even when they claimed neutrally to be following precedents, were actually engaged in legislation; they ought to accept that fact and self-consciously mold the law to fit the needs of the times. The second is the conversion of the U.S. Supreme Court, beginning in the late 1930s, to Holmesian jurisprudence. By the third quarter of the 20th century it made sense to speak of our polity, in Raoul Berger's phrase, as "government by judiciary."

How did the Court successfully hijack public policy from the states and localities and, to an astonishing extent, from the federal legislature and executive? How might this judicial usurpation be undone? These two questions preoccupy James R. Stoner, a professor of political science at Louisiana State University, in this short but dazzlingly penetrative and brilliant book. He argues in essence that, bamboozled by Holmes and his acolytes, modern courts forgot the basis of our liberties in the English common law and that the way back to judicial sanity is to recapture the insights of that common law and to repudiate Holmes.

Throughout most of our history it has been understood that the federal government is supposed to be confined to such tasks as regulating commerce among the states and with foreign nations, diplomatic relations, the waging of war and the securing of the peace, and maintaining the stability of the economy by establishing a uniform currency and rules for bankruptcy. The principal domestic regulatory authority was supposed to be lodged in the state and local governments, on the theory that the governments closest to the people would best understand the needs of their constituents. This meant that it was the states, not the federal government, that should be concerned with matters of contracts, torts, corporations, criminal law, family law, religion, and every other legal subject not clearly assigned by the Constitution to the federal government.

Beginning in 1937, however, the United States Supreme Court, through a very broad definition of "interstate commerce," began to permit the federal government a broader role. The Warren Court in the 1950s and 1960s, through dubious interpretations of the 14th Amendment, began to restrict what the states could do regarding mandatory prayers and Bible-reading in the public schools; and even went so far as to declare that most state legislatures were unconstitutional, because they included houses chosen not strictly on the basis of population, but also pursuant to existing political and geographical divisions. The apex of judicial law-making was the 7-2 decision in Roe v. Wade (1973), when the Supreme Court discovered that the 14th Amendment somehow guaranteed women some kind of "right" to procure abortions, free of state regulation, at least in the first trimester of pregnancy. In Planned Parenthood v. Casey (1992), the court extended that right in order to forbid any "undue burdens" on abortion in the case of any non-viable fetuses.

The "liberal," or perhaps it is more accurate to say "radically individualistic," policy that the Court had taken up was encapsulated in the now infamous "mystery passage" in Planned Parenthood v. Casey, where three justices declared: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This presumably meant that if one didn't believe a fetus was a human life, the state should not prevent one from disposing of it. The "mystery passage" was repeated by Justice Kennedy in Lawrence and Garner v. Texas (2003), who used it to declare all state laws prohibiting consensual homosexual relations between consenting adults unconstitutional, even though the Court had upheld such statutes a mere 17 years before in Bowers v. Hardwick (1986). The "mystery passage" and the logic behind it was used earlier this year by the Supreme Judicial Court of Massachusetts, to order the state's officials to permit gay marriages.

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So committed was the U.S. Supreme Court to what Stoner calls the "sovereign self " that it seemed to be approaching the point where it would outlaw all attempts by public authorities to encourage, much less enforce, any morality or vestige of religion. The United States Court of Appeals for the Ninth Circuit actually declared that the words "under God" in the Pledge of Allegiance were unconstitutional, and although the Supreme Court overturned that decision on a technicality, only three members of the Court were prepared to state that the words were not an unconstitutional establishment of religion.

Holmes-bashing bids fair to become a closet industry in the legal academy, and Stoner's book complements the wonderful screed from Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000), which portrayed Holmes as an amoral monster, responsible for much of the sorry state of our law. Still, Holmes had a point—that the law did have a role to play in bringing our public policy in line with the changing needs of the times, and thus any theory of jurisprudence needs to provide some flexibility. What Stoner is able to demonstrate, through his careful study of both American and British common law, is how that body of jurisprudence can be used by judges, even those interpreting the U.S. Constitution, to accommodate changed circumstances without their becoming legislators or policy-makers.

To suggest how the common law might still save the political soul of America, Stoner produces a short handbook of common-law doctrines, in effect digesting and discussing the work of the great common lawyers, including Sir Edward Coke, Sir William Blackstone, and Lord Mansfield, on the English side, and the two great American theorists, Chancellor James Kent of New York and Joseph Story, a U.S. Supreme Court justice. Stoner is trained as a political theorist rather than a lawyer, and this has miraculously enabled him to write about complex legal topics in a manner accessible to laymen. Nevertheless, in his encyclopedic grasp of private and public legal doctrine he puts many law school academics to shame, and his book ought to be required reading for all first-year law students—and their professors.

One of the reasons the common law is now obscure is that there is no agreement on its defi- nition. The words are variously taken to mean, inter alia, " judge-made law," "the law of England, America, and other English-speaking nations," and "the law found in the English Reports, the statutes of Parliament, and the customs of England." Stoner rejects the notion of common law as " judge-made law." In fact, he seeks to understand the principles that Americans thought they were implementing when every single one of the original 13 states passed a statute adopting the "common law," insofar as it was applicable to American conditions. This meant, of course, the common law stripped of monarchy and aristocracy and fit for a republic.

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As Stoner shows, however, this did not mean that Americans rejected the moral and conservative character of the English common law (which Stoner defines as "the immemorial customary law of England, enforced in the Court of Common Pleas and the King's bench, and throughout the realm in local courts called the assizes"). On the contrary, Stoner argues that Americans in the 19th century, like Story, embraced the common law because it included "the elements of morals and ethics, and the eternal law of nature, illustrated and supported by the eternal law of revelation." Indeed, Americans such as Story and Kent were emphatic that Christianity itself was a part of the common law. Stoner makes clear, however, that by this they meant what we would now loosely refer to as "Judeo-Christian principles," specifically:

the priority of law to the regime (a reversal of the classical order), based on a greater certainty about good and evil in revelation than in reason, and on a con- fidence in the public declaration of good; the infinite value of the human individual as a being with an eternal soul and as the object of God's particular providence and, sometimes, His grace; the doctrine of free will; and the distinction between church and state….

What all of this means is that if we took our common-law heritage seriously, we would come closer to the framers' aim of a society governed by the rule of law, not of judges, or as they used to say, "a government of laws not of men." We would also give up our fear of integrating morality with law, and we might recognize the indispensable role that religion and morality must play in law. Stoner illustrates these implications of his argument by careful consideration of current constitutional doctrines involving free speech, religious liberty, abortion, family law, jury trials, judicial taxation, party discipline, interstate commerce, the protection of private property, and international law.

One might quibble with some aspects of Stoner's analysis. He could have benefited, for example, from further study of the scholarship produced by some of us law professors about transformations in the nature of the common law and the Constitution. And one may be forgiven for wondering, still, whether the common- law method he endorses gives judges too much discretion. Nevertheless, Stoner's book is a model of what can be done by an analyst who has mastered both political philosophy and law, an exposé of how impoverished current judicial practice is, and a demonstration of how we lawyers might still recover a glorious heritage.