We should be clear about the hierarchical differences between common law, statutory law, and constitutional law.
Common law is a centuries-old form of law that was made by judges themselves
who had to resolve cases without guidance from any laws made by any other lawmakers. In British Common Law, judges were faced with the task of how to resolve a legal dispute between two parties – in matters of criminal law, a dispute between a prosecutor and a defendant, or in civil law, a dispute between a plaintiff and a defendant – but the question of how to resolve the particular issue that was the heart of the dispute had never been addressed by the monarch or by parliament. To cite one of the most important examples of this, when criminal charges were brought by prosecutors against people accused of a crime, the parties had a dispute about whether the accused was presumed to be innocent, which party had the burden of proving their case, and how persuasive does the proof have to be. British Common Law judges decided each of those questions with a strong tilt in favor of defendants; these judges decreed, centuries ago, that every defendant has a right to be presumed innocent until proven guilty, that the prosecutor had the burden of proving their case – the defendants did not have to prove they were innocent – and that the prosecutor had to present proof of guilt beyond a reasonable doubt. British Common Law judges also decided that every accused person has a right to cross-examine the witnesses who testified for the prosecutors. For examples of how common law judges created certain aspects of civil law, look to most, if not all, of contract law. When plaintiffs and defendants had disputes with one another about whether one of them had done something that violated the terms of the contract they had made with one another, common law judges created all of the rules addressing how, specifically, to resolve those disputes. But it cannot be emphasized enough that the reason those judges made those laws was because the monarchs had never issued any decrees, and parliament had never passed any legislation, to explain how to resolve legal disputes like those. Common law judges made these laws because they had to resolve disputes without any guidance from other legal authorities. And the source of “reasoning” that the common law judges used to decide what to do was their own sense of right and wrong; their own sense of fairness and justice. Common law was eventually carried over and continued to be used in the American colonies. In colonial America, common law judges continued to follow precedents established by British Common Law judges, and American common law judges continued to create and develop more common law as they were forced to resolve some legal disputes without any guidance from colonial legislatures.
But in the USA, common law is automatically
inferior to statutory law, just like statutory law is inferior to constitutional law. Once a legislature addresses a topic that used to be handled exclusively by common law, then the statute adopted by the legislature was given superior authority to the common law. That is, a legislature developed an opinion that the common law decisions rendered by courts were not adequately or correctly addressing how to resolve certain kinds of disputes, and so legislatures decided to pass laws that were make better law than had been created by common law judges, and once legislation had thus been passed, the courts deferred to the legislature’s authority and ceased using the precedents that had been handed down by common law courts.
The only way that common law could possibly be given superior authority to a statute passed by a legislature would be if the common law had become embedded into a constitution. The obvious examples, so far as the US Constitution is concerned, are the two due process clauses of the 5th and 14th Amendments, the confrontation clause of the 6th Amendment, and so on. Of course, statutes that contradict provisions in the US Constitution (and state constitutions) are appropriately deemed to be inferior to the constitutions themselves, since constitutions are the highest form of legal authority that we have.
So simply remember this hierarchical structure: common law << statutory law << constitutional law. And common law is certainly inferior to constitutional law
unless the Constitution itself embraces any principles that were previously in common law.
Here are a few instances in which the SCOTUS discussed common law and what issues it did, or did not, address. The first one I include here is from a dissenting opinion written by the second Justice John M. Harlan, as he dissented from a pair of cases the Court handled in 1968. Harlan wrote one dissenting opinion to express his disagreement with two decisions handed down the same day, in cases that pertained to the issue of who had legal standing to sue for wrongful death.
At common law, no person had a legally cognizable interest in the wrongful death of another person. … One important reason why recovery for wrongful death had everywhere to await statutory delineation is that the interest one person has in the life of another is inherently intractable. Rather than hear offers of proof of love and affection and economic dependence from every person who might think or claim that the bell had tolled for him, the courts stayed their hands pending legislative action. Legislatures … generally defined classes of proper plaintiffs … based on family relationships, excluding issues concerning the actual effect of the death on the plaintiff.Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73, 76. The other case handled at the same time was Levy v. Louisiana, 391 U.S. 68.
In other words, for centuries before any legislatures ever created any statutes that authorized certain family members to sue for wrongful death of a member of their family, every time a plaintiff tried to initiate a lawsuit against some defendant that the plaintiff believed had caused someone’s death, such lawsuits were always dismissed by courts of law, because common law judges, trying to use their sense of right and wrong, their sense of fairness and justice, could not conceive of a reason why any one person has a “right” to sue for wrongful death of someone else. If criminal charges could not have been successfully used to punish someone alleged to have caused a death, then that was all she wrote; grieving family members had no other recourse to “get justice” against the persons accused of causing someone’s death.
Common law judges did not recognize that anyone had a “right” to sue for someone else’s wrongful death, not even with trying to apply the judges’ own sense of fairness and justice, of right and wrong. The “right” to sue for wrongful death sprang into existence once legislatures created statutes saying so, and such statutes delineated precisely who has the right to sue.
Next, consider these statements that appear in
Bowers v. Hardwick, the now-overturned decision of the SCOTUS to uphold the sodomy law of Georgia.
Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. (Footnote: Criminal sodomy laws in effect in 1791: Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672). Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719). Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981). Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975). … Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7. … At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776). (Bowers, 478 U.S. 186, 192. (1986)
So, in British Common Law and in American colonial common law, no one was recognized as having any “right” to engage in sodomy; in fact, quite the opposite: common law judges widely understood that sodomy was so widely deemed by most people in the country/colonies to be immoral that it did not matter that there was no statute explicitly forbidding sodomy. Common law judges allowed prosecutors to present criminal indictments against anyone who engaged in sodomy, even in the absence of statutes that criminalized it. But eventually, all common law treatment of the subject of sodomy was replaced with statutes passed by all 50 of the state legislatures. (Illinois was the first state in which the legislature repealed the sodomy statute, in 1961.)
Next I’m going to quote from the first-ever ruling in favor of gay equal rights:
Romer v. Evans, 1996, which is also going to quote from a Court ruling the previous year (1995), in which the Court ruled
against equal rights for gays.
"At common law, innkeepers, smiths, and others who 'made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 571 (1995). The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights Cases, 109 U.S. 3, 25 (1883). In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. … The [anti-discrimination] laws … enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. … These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. … [State anti-discrimination laws] set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates-and, in recent times, sexual orientation.
Are the new statutes that prohibit discrimination better than the old common law rule that public service providers cannot refuse, “without good reason, to serve a customer”? Is it better to have one comprehensive and vague rule, or is it better to be detailed and specific?
Why am I discussing these issues now? Because of certain conversations I’ve had here, in this forum, with another user – a user I will only refer to as “F.” A little under two months ago, I saw “F” post this:
I don't dispute that the Canadian Supreme Court has made some odd rulings, but this is what happens when you have people (The Federalist Society) convince the media and the public at large that b.s 'judicial philosophies' that supposedly determine the letter of the Constitution (and laws) are all that matters, and not the spirit of the Constitution (and laws), or practical realities or even common sense.
That comment made me very angry, so I spouted off at “F” by replying:
The condescending and spiteful way you refer to those of us who do have a firm "judicial philosophy" as if we espouse "b.s." is so annoying that it tempts me into telling you to *************** (comment self-censored due to probability of being modded).
My judicial philosophy is called Originalism, with a strong dose of judicial restraint mixed in, as well. I believe there are many clauses of the Constitution that can and should be taken at face value, but sometimes there are some clauses that need to be investigated for what they were intended to mean -- such as the Ninth Amendment and the Equal Protection Clause, to name two. And I believe that judges must try, as much as humanly possible, to be objective (and it is possible to be that), and to be careful to not usurp the power of the legislature. And I am certain that the US Supreme Court Justices have failed to do their job that way dozens of times.
But much more recently -- less than two weeks ago -- I accused “F” of being one of the most “toxic” posters here, which prompted “F” to reply to me by saying:
Since you are clearly judging me based on my comments about especially 'Constitutional legal philosophies' (mostly not even directed at you) I'm serious with what I said about you earlier: you have a bizarre pedantic obsession with the U.S Constitution in general and the 14th Amendment in particular. Maybe it isn't my place to say it here, but I honestly and frankly think you need therapeutic counselling.
For instance, I don't remember what your response to me after I referred to 'Constitutional Judicial philosophies' as 'B.S', but you clearly took it very personally. Among other things, I found it a completely over the top response because my argument is scarcely original. There are many legal commentators who, at a minimum, roll their eyes at these things, including former federal judge Richard Posner. Many others recognize that many Justices, especially those on the right, use these 'judicial philosophies' as a cover to justify the verdict that agrees with their private opinion.
And, Canada and other western English speaking nations also have legal systems and Constitutions based on English Common Law, but none of them make 'judicial philosophy' the preeminent concern in rendering a verdict, but focus far more on the actual facts and evidence of the case and the 'real world' consequences of their decisions.
Because of all the things "F" said in both of those quotes of him, it is very clear to me that "F" thinks it is still completely acceptable for contemporary judges to continue to use common law methods of legal reasoning when hearing and deciding cases that consist of the courts being asked to construe statutes and provisions of the constitutions (the US Constitution and the state constitutions). "F" wants courts to decide what is the "spirit" of the Constitution, which probably includes a willingness to disregard practically every single explicit clause in the document, and instead to decide what the Constitution
ought to mean; assume that every law that serves a good and admirable purpose is automatically deemed to be constitutionally acceptable, but conversely every law that does not serve a good purpose will automatically be deemed to be a constitutionally unacceptable law. "F" wants the courts to think, above and beyond any process of interpreting statutes and constitutions, what are "the real world consequences" of the decisions that they render, and be guided by consideration of that and that alone.
"F" reminds me of a quote that I've seen attributed to Justice Thurgood Marshall: "You do what you think is right and let the law catch up." (Deborah L. Rhode, "Letting the Law Catch Up,"
Stanford Law Review, 44 (Summer 1992); 1259.) That is the essence of legal reasoning for common law courts, and if this method of reasoning is used even in cases in which the participating parties are arguing about the meaning of statutes and/or constitutions, then judges who do reason that way are usurping the power of legislatures to make laws. "F" says that his views about this are not unique, and there are many other judges and scholars who endorse this method of legal reasoning. I'm sure he's right about that, and the fact that so many judges and scholars do endorse the common law method of resolving ALL cases just goes to show that there is a huge cancer in America's legal system. And when I see people continue endorsing a common law methodology of resolving all cases heard by courts, as well as claiming that those of us who want judges and courts to use a method of legal reasoning that does respect the authority of legislatures to make laws, and judges should respect the intentions of the lawmakers, are spouting "b.s." "judicial philosophies," it makes me extremely angry. It certainly doesn't matter that "F" was not trying to target me specifically; what matters is that "F" is committing libel against every one of us who does have a judicial philosophy of Originalism. He's calling us all liars. That makes me extremely angry.
