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Towards a Common Law Originalism


Bernadette A. Meyler


Stanford Law School


Stanford Law Review, Vol. 59, p. 551, 2006
Cornell Legal Studies Research Paper No. 06-022

Abstract:     
Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested a conception of its identity as much more flexible and susceptible to change than originalists posit.

The alternative that this Article proposes - common law originalism - treats the strands of eighteenth-century common law not as providing determinate answers that fix the meaning of particular constitutional clauses but instead as supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively. It likewise suggests that the interpretation of common law phrases should be responsive to certain alterations in external conditions, rather than static and inflexible. Situated between living constitutionalism and originalism as currently practiced, common law originalism attempts to square fidelity to the Founding era with fidelity to its common law jurisprudence - a jurisprudence that retained continuity yet emphasized flexibility and was inclusive enough to hold disparate legal conceptions in its embrace.

Number of Pages in PDF File: 52

Keywords: originalism, history of the common law, constitutional interpretation

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Date posted: August 22, 2006 ; Last revised: August 26, 2009

Suggested Citation

Meyler, Bernadette A., Towards a Common Law Originalism. Stanford Law Review, Vol. 59, p. 551, 2006; Cornell Legal Studies Research Paper No. 06-022. Available at SSRN: http://ssrn.com/abstract=925351

Contact Information

Bernadette A. Meyler (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
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