Common Law Liberty: Rethinking American Constitutionalism
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| Common Law Liberty: Rethinking American Constitutionalism | |||||||||||||||||||||||||||||
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James Stoner's first book, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism, was hailed as forceful and wise . . . powerful and convincing by the American Historical Review and a stunning achievement by the Journal of Politics. In that work, which provided historical background to the Founding era, he focused on the common law almost exclusively as a mode of legal thought. He now amplifies and extends his thinking on this subject with a study that transcends such formalistic limits and reveals how constitutional law has developed since the Founding.
Common Law Liberty is a rediscovery and reassertion of the common law's central contributions to and enduring impact on American constitutional law. Stoner illuminates the common law's ties to an entire way of life, inextricably linked to the Founding and American constitutionalism, influenced by Christianity, closely connected to the development of free enterprise, and open to the influences of modern science and democracy. Stoner delineates two common laws: one understood by the Founders and rooted in British traditions of jurisprudence and one that, thanks to jurists like Holmes and Cardozo, corrupted the first by redefining common law as mere judge-made law or judicial process, dangerously disconnected from the values and norms of the communities it serves. The latter, for Stoner, has been a disastrous development, shrouding the common law's original meaning and vitality, replacing its spirited liberty with personal license, giving far too much discretion to judges who wish to depart from tradition and precedent, and, thus, undermining our constitutional system of checks-and-balances. In an era as morally confused as ours, Stoner argues, we at least ought to know what we've abandoned or suppressed in the name of judicial activism and the modern rights-oriented Constitution. Having lost our way, perhaps the common law, in its original sense, provides a way back, a viable alternative to the debilitating relativism of our current age. Drawing upon themes from his first book, as well as numerous articles, papers, and lectures produced during the past decade, Stoner crystallizes and reintegrates this body of work. By applying and contrasting both understandings of the common law to specific cases--including free speech, abortion, and religious liberty--he hopes to reclaim essential principles long buried but, in his view, desperately needed to preserve the integrity of our nation's polity and its hold on our moral imagination. |
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| 02-11-04 | 4 | 3\9 |
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The absence of Common Law adherence in light of our Constitution, at least in the schools, makes Professor Stoner's attempt at revival a refreshment. Indispensible for current dialogue, the work reflects that genre of American jurisprudence regarding Magna Carta as "extortion." In that vein, the professor walks a fine line between the "liberty" afforded in at least the process and the clear tradition he has identified in common law underpinning the force of the state, and there going to public libel. Thus, we see the claim of custom and usage refined to rule and doctrine emerging in an "unwritten" way from "legislation" and "Christianity" denoting a compatibility with the British Constitution, and there in contrast with "liberalism" which he defines in the genre of Justice Holmes and coming from the political writings of Hobbes, Spinoza and Locke, among others. In tracing the political theory behind his perception, Professor Stoner minimizes, but at least diminishes the impact of the Reformation and its outgrowth as well as roots in the formative stages of the Common law as it was understood before the Framing and beyond, to the extent no distinction is made between the practical effects of the authority of the Lord working on and in the individual apart from the law giving rise to separation and the province of Lex Rex and the gradual convolution of that private authority to the specific "reasoning" of the judge, even as a law unto himself,which the professor attributes to Holmes, at least in making law. To quote Barnard, "Our English law never appeared in its strength until after the reformation; until after it had come in contact with a free Bible; until it had been softened, subdued and leavened by Bible teaching and Bible precepts, and, by these unmanacled from many of its glaring absurdities and heathenisms and unjust distinctions and inhuman punishments. It was not until then that civil liberty was reinstated after the downfall of the Jewish theocracy." Even before the reformation, the common law rule against torture was, as the professor suggests, a bulwark against inquisition. It furnished a response to Hobbes by way of CJ Hales' apology, and a substantial contribution to our constitutions without sacrificing the comity put forward by CJ Marshall in his Ogden dissent which denotes more a response to condition than a fear of destruction . Perhaps the professor's greatest contribution is his outline of a common law framework in dealing with the present problems of church-state relations and the like. Curiously, there is no mention of the Common law's traditional separation from the province of equity in Chancery - a benchmark for the separation of Church and State, reflected in the 1st Amendment, and hardly liberal in the sense the professor opines. All in all, Common Law Liberty represents a fine contribution to the emerging debate over fundamentals, which has pitted even those who believe in a "working" constitution beyond dead letter against those who have preached a "living constitution" of special interest.
(Review Data Last Updated: 2008-07-04 19:16:48 EST)
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