Common Law and the Constitution

The theory of common law is that there are principles of justice that arise naturally from the biological and social nature of humanity. I have sometimes discussed that in terms of there being an (unwritten) constitution of nature, and a subordinate (unwritten) constitution of society, to which there is a subordinate constitution of the state (society in exclusive control of a territory), and a further subordinate (probably written) constitution of government (the document adopted in 1789 for the U.S.). See Social Contract and Constitutional Republics.

In this concept what a court does when it has to decide without a legislative enactment (written constitution, statute, etc.) is to discover those natural principles applicable to the case and its issues. Court precedents are therefore a history of such discoveries (called “findings”) in similar cases that are respected on the assumption that the previous courts did a good job of discerning the principles. In this sense, common law courts are something like a peer-review process in scientific fields , in which claims of discoveries by scientists are subjected to examination to determine whether they stand up to challenge, and past scientific discoveries are accepted until refuted by a later discovery.

So while the term “common law” goes back to the 11th century in England, the concept is much older, and was discussed in ancient Hebrew, Greek, and Roman law, as well as the legal traditions of other lands and peoples.

The distinction is important. In theory, the judge and jury are not “making” law. That would be legislation, and that is not within their jurisdiction. It is “finding” the underlying principles of justice that presumably govern all human societies, whether some of them know it or not.

By the 17th century, the system of common law in England was becoming problematic. There were just too many precedents, and it was usually possible to find a supporting precedent to support any position litigants might take. Lawyers could spend a lifetime reading the record of old cases and never cover them all. Attempts were made to codify common law in legal treatises, such as those of Bracton, Britton, Hugo Grotius, Francis Bacon, Edward Coke (pronounced “cook”), Thomas Hobbes, Samuel Rutherford, Samuel Pufendorf, John Locke, Algernon Sidney, Bynkershoek, Burlamaqui, Thomas Rutherforth (online edition in progress), Vattel, and Blackstone. However, this only led to conflicting schools of thought on the subject.

The demand for codification and simplification was one of the factors driving the emergence of the English House of Commons as that country’s supreme lawmaking body. However, without a single, coherent written constitution of government, other than a collection of enactments that had special weight by tradition, Commons functioned as a kind of ongoing constitutional convention, concerning which it came to be said, “No man’s life, liberty, or property are safe while [Commons] is in session.”

This problem is precisely what caused tension with the British North American colonies, and ultimately to the break and the independence of the United States. Coming out of that experience without a written constitution of government, and comprehensive statutes, the new country chose to abandon so much reliance on tradition and the common law, and adopted written constitutions for each state and then for the Union. They did not, however, discard it altogether. The written constitutions incorporated the nonconflicting parts of what had then become the American branch of common law (Camdenian rather than Mansfieldian), including almost all the definitions of legal terms.

So the U.S. Constitution is written in the language of the American common law, and I strongly advise modern students to approach the Constitution as though they were learning a foreign language. Contrary to what many think, much of the Constitution is not really written to be understood by ordinary, non-legal-educated people. Terms like “due process” and “jury” were terms of legal art with a vast body of cases and treatises behind them. Americans in the Founding Era were much more law-literate than are people today, but even the Founders had to hit the books mentioned above to find out what they were saying when they drafted the Constitution. So must we to understand what they wrote. There are no shortcuts.

Jury “nullification” did not really come into being with the 1670 Trial of Penn and Mead and Bushell’s Case. Those cases only solidified what had already become established as a foundation principle of common law, although until them there was much judicial practice in conflict with the principle. It is to noted that it was also already established that arguments on issues of law were to be made in the presence of the jury, and not just in the privacy of the judge’s chambers, a principle confirmed as late as Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573, which has never been overturned (although it is now uniformly ignored).


13 Responses to “Common Law and the Constitution”

  1. Heather Johnson Says:

    It would be nice to know what exactly was considered “common law” at the time the framers adopted the constitution and if the Declaration of Independence and the Articles of Confederation held any legal weight considering their role in the US framework. If anyone knows of direct links – please let me know.

    • constitutionalism Says:

      “Common law” provided the language in which the Declaration of Independence and Constitution were written, including the meanings of key terms, such as “due process”, “privileges and immunities”, “power”, “right”, jury, etc. The only term redefined in the Constitution was “treason”. For all the rest we have to look to the cases and commentaries of English law, back more than 1000 years.

  2. slcraignbc Says:

    The COTUS became the “common-law” of the Land according to the Supremacy Clause, did it not…???

    • constitutionalism Says:

      A court is not the “common law”. The theory of common law is that it is a process of discovery of eternal principles of natural law, which are (hopefully) evidenced by court decisions. But of course judges can get it wrong, and we hope that later judges will do a better job of finding those principles.

      Considered as the evidence, that evolves. At the time of independence, common law in the American colonies was mostly that of England, but it had begun to deviate from that foundation. For example, the Zenger case that found truth to be a defense against criminal libel was an American case, and although it was reported in English case books (by Zenger himself), it was not fully accepted in England.

      There were actually three slightly distinct schools of common law doctrine in England in 1776: (1) royalist, in decline; (2) Tory, represented by Lord Mansfield; and (3) Whig, represented by Lord Camden and more and more American cases. Most of the Americans were Camdenians. England drifted toward Manfieldism. Jefferson once complained about that in a latter to Madison. You can find it at Also see material on the debate at

      • slcraignbc Says:

        I said COTUS, as in the Constitution of the United States……..but the “common-law” among a civil society are those laws that they hold in common as “rules of conduct”……..and then there is the “common-law system” that is the “rules of litigation” … and then there is the judicial application of Stare decisis, precedents, which is relied on so as not to upset the former, except when change is required.

  3. constitutionalism Says:

    The Constitution itself is not “common law”. It is positive law, and was adopted in part to avoid the defects of the common law system of court precedents in which by 1776 it was often possible to find a precedent to support almost any position.

    Originally the “common” in common law meant the principles of justice that were common to all jurisdictions, not peculiar to certain localities.

    Court decisions based on the Constitution can be said to be a kind of common law, but they are also based on a legacy that is not part of the Constitution, although they may not conflict with it. It is the common law that provides the language in which the Constitution is written.

    • slcraignbc Says:

      The Preamble to OUR U.S. Constitution expresses the “common & natural law” Principles, Ideals and Intents that was/is intended to express the U.S. Common-Law Principle that Governments are formed “to do good”. (see Aristotle).

      So we’re basically on the same page, HOWEVER, WE ARE a Constitutional Representative Republic that is bound by the Laws of the Constitution.

      That said, Our current Constitution, as applied, barely resembles what it IS meant to be and applied.

  4. constitutionalism Says:

    Yes, legal practice has deviated far from the original meaning of the Constitution, but most of it has come from misinterpreting about 80 ambiguous terms (or at least ambiguous for modern readers). We have amendments that would clarify those terms.

    • slcraignbc Says:

      Well, Amendments disturb ME, given that most Amendments have been distorted at a faster pace than the Constitution its-self.

      I would prefer REPEAL of most Amendments from the 11th forward as I consider them as if cancerous appendages to an otherwise healthy document.

  5. trishouse Says:

    Thomas Jefferson wrote to James Madison in a missive titled Popular Basis of Political Authority; “On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.–It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only.”

    • Steven Lee Craig Says:

      Of course Jefferson touches on a number of of concerns at those points where ‘political societies’ agree to abide by ‘made law’ with the intent of accommodation, tolerance, security or environmental necessity, that may intrude on the pure state of a natural law.

      But here he is talking about various fine points of the ESTABLISHED “common-law” of the U.S., the COTUS.

      He in no way implies that it was not well made and concedes that the process of Amendments provides for change

      What he does do is to speak to the principles by which “change” should find their authority, the immediate generational concern or those things known to be needful to proceeding generations.

      Contrary to popular opinion I am of the mind that the COTUS has been ‘changed and re-interpreted” far too many times that it just barely resembles that which was 1st established.

      Resurrection, (resuscitation) would be far more useful that further “changes”.

  6. bernard ndasi Says:

    what are the similarities and differences between written constitution and constitutionalism.

  7. slcraignbc Says:

    Well, I would have to ask if your speaking of Constitutionalism in the Age of Aristotle or in the era of Constantine or in the Age of Enlightenment or how it has evolved under the Constitutionalism under the U.S. Constitution.

    If the later I would have to say that it became under attack almost since its inception by anti-Constitutionalist powers around the world.

    Evil hates the concept of “life, liberty and the pursuit of happiness” which has been a central tenet of Constitutionalism going back to Aristotle, albeit in differing language, such as, “the purpose of government is to do good” which is to do good so that for the greatest number of people as possible can do good and they do their best when their lives, liberties and properties are secure.

    Evil attacks good at every opportunity and its opportunity to spread evil throughout the United States has never been greater than it currently is.

    All of the different political philosophies have morphed to one degree or another as the central tenets attempt to keep up with the changes that occur within the boots on the ground political factions.

    Your daddy’s liberal is not the liberal of today as the Democrate party of the 1st half of the 20th Century were the “conservatives” of that era.

    So to ask about thoughts on “Constitutionalism” requires asking which “Constitutionalism” will you be comparing the response to.

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