At Dorf on Law, Michael Dorf: Founding-Era Common Law's Relevance to Original Meaning, From the introduction:
… [i]n several of the Court's cases last Term, either a majority or separate opinion placed a great deal of weight on the state of the common law at the Founding in order to ascertain the current operation of some constitutional provision or doctrine.
For example, in Uzuegbunam v. Preczewski, Justice Thomas, writing for a nearly unanimous Court, looked to Founding-era common law to conclude that the availability of nominal damages suffices to establish standing under Article III. Conversely, in Transunion v. Ramirez, the Court, per Justice Kavanaugh, found that the plaintiffs lacked standing because they had failed to identify "a close historical or common-law analogue for their asserted injury." Justice Thomas (joined by the three Democratic appointees) dissented in Transunion, objecting less to the majority's reliance on Founding-era understandings of the scope of judicial power than to its characterization of them.
…
Suppose you are an originalist of the currently fashionable variety: you equate the Constitution's contemporary meaning with its original public meaning. [Ed.: Wrong. Actually, you think the Constitution's original public meaning is binding, irrespective of its contemporary meaning.] Would you therefore further equate the Constitution's meaning with Founding-era common law? You might, but you would need some special reason to do so. After all … at a bare minimum you would need to know that the relevant provision was understood by the public to codify rather than depart from the common law.
With respect to standing–at issue in Uauegbunam and Transunion–the argument would have to be that when the ratifying public circa 1789 read Article III's references to "judicial power," "cases," and "controversies," they would have necessarily thought of the kinds of cases that courts of their era heard, which in turn would have invoked the common law. That's plausible, but it's hardly a slam-dunk. After all, while lawyers would have been familiar with the details of the common law, the broader public likely would not have been. To the average member of the ratifying public, the terms "judicial power," "cases," and "controversies" would have likely meant something like "court stuff" rather than invoking all of the complex doctrines that courts had developed.
A good point, and I think it depends a lot on whether one accepts the idea, as explained by John McGinnis and Michael Rappaport, that the Constitution is written (and was understood as written) in "the language of the law." If so, then the carryover of the common law into the words and phrases of the Constitution seems to follow, unless (as Professor Dorf suggests) there is evidence that the Framers' language was designed to depart from the common law.
However, the post later makes a stronger claim that I think is mistaken. First, this observation:
Here, then, is the originalist reasoning of the Court in takings cases, in free speech cases, and in other contexts I haven't bothered to elaborate: The scope and limits of constitutional rights and other constitutional provisions are informed by the understandings of the public at the time of ratification, which will in turn reflect the common law at the time.
I agree this is the view of originalist-oriented Justices and of mainstream contemporary originalist scholars. But then the post continues:
Note, however, that this reasoning appears more sound if one is an old-style expectations-and-intentions originalist than if one is a currently fashionable public-meaning originalist. Sure, we can expect that the ratifying public will have expected that property rights and free speech could be limited pursuant to traditional common law exceptions, but without knowing a whole lot more, we cannot say that that expectation was a product of the meaning of the particular words of the Fifth and First Amendments, as opposed to expectations formed through other mechanisms. Put simply, without substantial inquiry into distinctively linguistic understandings of the particular words of the Constitution, there isn't good reason to equate the scope and limits of Founding-era common law with the scope and limits of the relevant constitutional provisions.
Here I disagree. Public meaning originalism, from its roots in Justice Scalia's framing of it, has always understood meaning to arise from context as well as from semantics. The context of the Constitution's words and phrases, in many cases, was the existing legal backdrop, most importantly the common law from which they were derived. The public meaning of the words flows from that context. Thus Scalia, the inspiration of modern public meaning originalism, relied heavily on the founding-era common law to inform the original meaning of the Constitution. (See my discussion here, part I.B.; as I concluded: "in many of his opinions the English law background did most of the work in defining the constitutional rule.") Professor Dorf, in my view, has an unduly narrow understanding of public meaning originalism, at least in its traditional Scalian form.
Posted at 6:30 AM