At Law & Liberty, Steven Hayward (Pepperdine – Public Policy): The Return of the Common Law? From the introduction:
The consensus among legal scholars and media observers is that we have at last arrived at the triumph of “originalism” in our jurisprudence, the culmination of a legal counter-revolution decades in the making. But there seem to be as many versions or shadings of originalism as there are flavors at Baskin-Robbins. Even when the conservative originalist justices of the Supreme Court agree on a holding and doctrine, the jural anchors and lines of reasoning often differ considerably.
Regardless of the lack of a clear center point, the triumph of originalism represents the end of the free-wheeling, result-driven “due process” jurisprudence of the Warren Court, arguably rolling back the judicial odometer to before the “legal realism” of the early twentieth century sanctified the progressive drive for judicial modification of the law to meet “the felt needs” of the time.
Originalist interpretations range between what might be called the “40-yard lines” of strict textualism and “original public meaning.” With the conspicuous exception of Justices Clarence Thomas and Samuel Alito, few Supreme Court justices appear to be comfortable anchoring their reasoning explicitly on old natural law doctrines. But there are some clues that the natural law tradition, and its long centrality in practice in the common law, is slowly making a meaningful comeback.
And in conclusion:
The re-emergence of classic common law treatises looks to be a significant aspect of the story of originalism, by anchoring new originalist rulings to a much longer and older tradition. But there is no guarantee the classic treatises will be correctly understood or applied. This is not a new problem. Chief Justice Morrison Waite, in his majority opinion in Munn v. Illinois that upheld state regulation of grain elevators (1877), arguably misconstrued Matthew Hale’s treatise De Jure Maris about the nature of monopolies, a point the redoubtable Justice Stephen Fields—a firm natural law man—argued in his dissent that relied on first principles.
By degrees, it appears that originalism at the Supreme Court is slowly reviving key aspects of the natural law tradition found in what Jefferson described as “the elementary books of public right.” But it is being done in an indirect or circuitous manner, conspicuously avoiding direct mention of natural law, perhaps because the very idea of human nature itself has become so controversial in our wider culture. The originalist revolution will remain incomplete as long as this reticence persists, even while classic treatises persist, too. Thus originalists of whatever variety should hold off on declaring victory until this encouraging trend fully breaks out of its self-imposed box.
(Thanks to Mark Pulliam for the pointer.)
A possible indicator of the underlying direction of things comes from an unusual recent paper by Dana Neacsu of Duquesne Law School and Paul Douglas Callister of the University of Missouri–Kansas City School of Law, entitled “The Persistent Treatise,” currently available on the Social Science Research Network. The paper attempts a quantitative longitudinal analysis of the citations of legal “treatises” in federal court cases from 1962 through 2022.
Posted at 6:21 AM