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Common Law Constitutional Interpretation

Author(s): David A. Strauss

Source: The University of Chicago Law Review , Summer, 1996, Vol. 63, No. 3 (Summer,
1996), pp. 877-935

Published by: The University of Chicago Law Review

Stable URL: https://www.jstor.org/stable/1600246

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The University of Chicago
Law Review

Volume 63 Summer 1996 Number 3

? 1996 by The University of Chicago

Common Law Constitutional Interpretation

David A. Strausst

The Constitution of the United States is a document drafted
in 1787, together with the amendments that have been adopted
from time to time since then. But in practice the Constitution of
the United States is much more than that, and often much
different from that. There are settled principles of constitutional
law that are difficult to square with the language of the docu-
ment, and many other settled principles that are plainly inconsis-
tent with the original understandings. More important, when
people interpret the Constitution, they rely not just on the text
but also on the elaborate body of law that has developed, mostly
through judicial decisions, over the years. In fact, in the day-to-
day practice of constitutional interpretation, in the courts and in
general public discourse, the specific words of the text play at
most a small role, compared to evolving understandings of what
the Constitution requires.

877

t Harry N. Wyatt Professor of Law, The University of Chicago. I thank Bruce
Ackerman, Douglas Baird, Richard Fallon, Charles Fried, Elizabeth Garrett, Elena

Kagan, Dan Kahan, Larry Lessig, Michael McConnell, Martha Nussbaum, Jeffrey Rosen,
Louis Michael Seidman, Geoffrey Stone, Peter Strauss, Cass Sunstein, and the partici-
pants in workshops at Columbia Law School and the University of Chicago Law School for
comments on an earlier draft, and the Russell Baker Scholars Fund, the Robert B.
Roesing Faculty Fund, and the Lee and Brena Freeman Faculty Research Fund at the
University of Chicago Law School for financial support.

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878 The University of Chicago Law Review [63:877

Despite this, the terms of debate in American constitutional
law continue to be set by the view that principles of constitution-
al law must ultimately be traced to the text of the Constitution,
and by the allied view that when the text is unclear the original
understandings must control. An air of illegitimacy surrounds
any alleged departure from the text or the original understand-
ings. In the great constitutional controversies of this century, for
example, the contestants have repeatedly charged their oppo-
nents with usurpation on the ground that they were insufficiently
attentive to the text or the original understandings. That was the
claim made by the Justices of the so-called Lochner era; it was
the claim made by Justice Black, first against the Lochner judges
and then against other opponents; it was the claim made, during
the last twenty years, by opponents of the Warren Court inno-
vations.’ And today, textualism and originalism continue to be
extraordinarily prominent on both sides of the principal debates
in constitutional law.2

1 For uses of textualism and originalism in the Lochner era (so called after Lochner v
New York, 198 US 45 (1905)), see, for example, United States v Butler, 297 US 1, 62
(1936) (“When an act of Congress is appropriately challenged in the courts as not conform-
ing to the constitutional mandate the judicial branch of the Government has only one
duty,-to lay the article of the Constitution which is invoked beside the statute which is

challenged and to decide whether the latter squares with the former.”); Home Building &
Loan Association v Blaisdell, 290 US 398, 453 (1934) (Sutherland dissenting) (The whole
aim of construction, as applied to a provision of the Constitution, is to discover the mean-
ing, to ascertain and give effect to the intent, of its framers and the people who adopted
it.”). For Justice Black’s textualism and originalism, see, for example, Adamson v Cali-
fornia, 332 US 46, 70-81 (1947) (Black dissenting); Ferguson v Skrupa, 372 US 726, 730-
31 (1963); Harper v Virginia Board of Elections, 383 US 663, 677-80 (1966) (Black dis-
senting); Griswold v Connecticut 381 US 479, 519 (1965) (Black dissenting). For sustained
attacks on the Warren Court, on originalist and textualist grounds, see, for example, Rob-
ert H. Bork, The Tempting of America: The Political Seduction of the Law 69-95, 130-32
(Free Press 1990); Edwin Meese, III, Interpreting the Constitution, in Jack N. Rakove, ed,
Interpreting the Constitution 13, 18 (Northeastern 1990); Richard S. Kay, Adherence to the
Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82
Nw U L Rev 226 (1988); Raoul Berger, Government by Judiciary: The Transformation of
the Fourteenth Amendment 283-99, 363-72 (Harvard 1977).

2 See, for example, Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale
L J 1131 (1991); Akhil Reed Amar and Neal Kumar Katyal, Executive Privileges and
Immunities: The Nixon and Clinton Cases, 108 Harv L Rev 701, 702-25 (1995).

Bruce Ackerman, 1 We the People: Foundations (BeLknap 1991), should also be
considered a form of originalism, for reasons discussed at text accompanying notes 29-30.
See also Bruce Ackerman and David Golove, Is NAFTA Constitutional?, 108 Harv L Rev
799, 808-13 (1995). Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on
Free-Form Method in Constitutional Interpretation, 108 Harv L Rev 1221, 1225 & n 9
(1995), is critical of both of these originalist approaches, but on the ground that they are
insufficiently respectful of “text, structure, and history.”

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19961 Common Law Constitutional Interpretation 879

But textualism and originalism remain inadequate models
for understanding American constitutional law. They owe their
preeminence not to their plausibility but to the lack of a coher-
ently formulated competitor. The fear is that the alternative to
some form of textualism or originalism is “anything goes”-that
constitutional law, if cut loose from text and original understand-
ings, will become nothing more than a reflection of judges’ politi-
cal views.

In fact, however, the alternative view is at hand, and has
been for many centuries, in the common law. The common law
approach restrains judges more effectively, is more justifiable in
abstract terms than textualism or originalism, and provides a far
better account of our practices. The emphasis on text, or on the
original understanding, reflects an implicit adherence to the
postulate that law must ultimately be connected to some authori-
tative source: either the Framers, or “we the people” of some
crucial era. Historically the common law has been the great
opponent of this authoritative approach. The common law tradi-
tion rejects the notion that law must be derived from some
authoritative source and finds it instead in understandings that
evolve over time. And it is the common law approach, not the
approach that connects law to an authoritative text, or an au-
thoritative decision by the Framers or by “we the people,” that
best explains, and best justifies, American constitutional law
today.

In Part I, I will outline the common law approach to consti-
tutional interpretation. I begin by identifying some puzzling
aspects of our practices of constitutional interpretation-things
that seem well settled but that so far lack a convincing theoreti-
cal justification. Then I will suggest how the common law ap-
proach can explain and justify those well settled practices. In
Part II, I will discuss the rational traditionalism that is the most
important part of common law constitutional interpretation. This
form of traditionalism, characteristic of the common law method,
calls for recognizing the value of conclusions that have been
arrived at, over time, by an evolutionary process; but it also
describes the circumstances in which such conclusions should be
rejected. In Part III, I will discuss another component of the
common law approach to constitutional interpretation, what
might be called conventionalism. Conventionalism, which is the
primary justification for the continued role of the text in constitu-
tional law, is a generalization of the familiar idea that sometimes
it is more important for a matter to be settled than for it to be

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880 The University of Chicago Law Review [63:877

settled right. In Part IV, I will consider whether common law
constitutional interpretation gives judges too much power or is
otherwise inappropriate for a democracy.

I. THE PUZZLES OF CONSTITUTIONAL INTERPRETATION

A. Noah Webster’s Problem, and Some Others

The practice of following a written constitution, increasingly
common throughout the world, is puzzling on at least two levels.
First is what might be called the central problem of written
constitutionalism. Following a written constitution means accept-
ing the judgments of people who lived centuries ago in a society
that was very different from ours. To adapt an argument that
Noah Webster made in 1787, it would be bizarre if the current
Canadian parliament asserted the power to govern the United
States on such matters as, for example, race discrimination,
criminal procedure, and religious freedom.3 But we have far
more in common-demographically, culturally, morally, and in
our historical experiences-with Canadians of the 1990s than we
do with Americans of the 1780s or 1860s. Even if we pay no at-
tention to specific intentions as revealed in the ratification de-
bates and similar sources, the words of the Constitution reflect
decisions made by those Americans. Why should we allow those
decisions to govern our politics today?

Our practice is also puzzling on a less abstract level. There
are a number of specific aspects of our practice of constitutional
interpretation that are well settled, and that lie at the core of
how constitutional law operates in our society, but that are diffi-

cult to justify under any theoretical approach now in circulation.
These puzzles concern not just how the courts interpret the Con-
stitution but how the Constitution is received in the society as a
whole.

1. Text.

Everyone agrees that the text of the Constitution matters.4

3 “[Tihe very attempt to make perpetual constitutions, is the assumption of a right to
control the opinions of future generations; and to legislate for those over whom we have
as little authority as we have over a nation in Asia.” Gordon S. Wood, The Creation of the
American Republic, 1776-1787 379 (North Carolina 1983) (quoting Webster). On the
context and significance of Webster’s argument, see Stephen Holmes, Passions and
Constraint: On the Theory of Liberal Democracy 13742 (Chicago 1995).

4 See, for example, Paul Brest, The Misconceived Quest for the Original Understand-

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19961 Common Law Constitutional Interpretation 881

Virtually everyone would agree that sometimes the text is deci-
sive.5 But some constitutional provisions are interpreted in ways

that are very difficult to reconcile with the text.6 And principles
with no clear textual source are enforced.7 If we are cavalier
with the text sometimes, why do we treat it somewhat seriously
almost all the time, and extremely seriously sometimes?

2. The Framers’ specific intentions.

Virtually everyone agrees that the specific intentions of the
Framers count for something.8 In litigation over constitutional
issues, evidence that the Framers’ specific intentions favored one
position is at least a strong argument. It is unusual for clear evi-
dence of a specific intention to be disregarded, and occasionally
specific intentions are decisive.9

But sometimes, and on important issues, the Framers’
specific intentions are overridden with only a little concern.’0
Originalists urge that specific intentions must be taken more
seriously; some critics reject the originalist position and suggest
that specific intentions should count for little or nothing.” In
the meantime a practice somewhere in between-counting
specific intentions for something but not everything-seems well
settled.’2 But that settled practice is not easy to rationalize.

ing, 60 BU L Rev 204, 205 (1980); Thomas C. Grey, Do We Have an Unwritten Constitu-
tion?, 27 Stan L Rev 703, 706 (1975).

6 See, for example, Richard H. Fallon, A Constructivist Coherence Theory of Constitu-
tional Interpretation, 100 Harv L Rev 1189, 1244 (1987); Thomas C. Grey, Origins of the
Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan L
Rev 843, 844 & n 6 (1978). But see Anthony D’Amato, Aspects of Deconstruction: The
‘Easy Case’ of the Under-Aged President, 84 Nw U L Rev 250 (1989); Gary Peller, The
Metaphysics of American Law, 73 Cal L Rev 1151 (1985).

6 See text accompanying notes 54-69.
7 See text accompanying notes 69-70.
8 See, for example, Brest, 60 BU L Rev at 236 (cited in note 4) (“[N]onoriginalist ad-

judication . . . accord[s] presumptive weight to the text and original history.”); Tribe, 108
Harv L Rev at 1242 n 66 (cited in note 2); Fallon, 100 Harv L Rev at 1198 & n 36 (cited in
note 5).

9 See, for example, Marsh v Chambers, 463 US 783, 790 (1983).
10 See Cass R. Sunstein, The Partial Constitution 97-98 (Harvard 1993) (citing exam-

ples). See also Michael J. Perry, The Constitution, the Courts, and Human Rights: An In-
quiry into the Legitimacy of Constitutional Policymaking by the Judiciary 61-69 (Yale
1982); Morton J. Horwitz, The Supreme Court, 1992 Term-Foreword: The Constitution of
Change: Legal Fundamentality Without Fundamentalism, 107 Harv L Rev 30, 66-67
(1993); Grey, 27 Stan L Rev at 710-14 (cited in note 4).

” For a defense of originalism on this point, see, for example, Bork, Tempting of
America at 155-60 (cited in note 1); Berger, Govemrnent by Judiciary at 193-220 (cited in
note 1); Kay, 82 Nw U L Rev at 258-59 (cited in note 1). For the critique, see Brest, 60 BU
L Rev at 213-17, 229-34 (cited in note 4); Grey, 27 Stan L Rev at 715-17 (cited in note 4).

12 See, for example, Philip Bobbitt, Constitutional Interpretation 12-15 (Blackwell

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882 The University of Chicago Law Review [63:877

3. The role of moral judgments.

A similar hard-to-rationalize equilibrium seems to hold on
the question whether judges and other actors interpreting the
Constitution may rely on their own judgments of right and wrong
(generally phrased as judgments of fairness or good policy). It’s
hard to see how anyone could interpret the Constitution without
relying on such judgments at least sometimes.’3 But at the same
time, the practice has an air of illegitimacy about it. It is often
condemned as usurpation.”4 And no one suggests that the
interpreter’s judgments of right and wrong are the only things
that matter.

4. The “preferred position” of some provisions.

Not all constitutional provisions are equal; some are inter-
preted more expansively than others.’5 For about the last half
century, courts have narrowly interpreted the provisions of the
Constitution that protect economic liberties, while interpreting
other provisions, such as the guarantee of free speech, broadly.’6
The legitimacy of this practice, by now well settled, has been one
of the great issues of modern constitutional law. This is the issue

1991); Fallon, 100 Harv L Rev at 1998 (cited in note 5).
13 See, for example, Sunstein, Partial Constitution at 101 (cited in note 10); Fallon,

100 Harv L Rev at 1204 & n 67 (cited in note 5); Bobbitt, Constitutional Interpretation at
20-22 (cited in note 12).

14 This charge was frequently made by Justice Black. See, for example, Harper v

Virginia Board of Elections, 383 US 663, 677 (1966) (Black dissenting) (accusing the

majority of “consulting its own notions rather than following the original meaning of the
Constitution”). See also Bork, Tempting of America at 258-59 (cited in note 1); John Hart
Ely, Democracy and Distrust: A Theory of Judicial Review 63-69 (Harvard 1980); Henry P.
Monaghan, Our Perfect Constitution, 56 NYU L Rev 353, 353-61 (1981).

15 Or at least so it is conventionally said. It is difficult to define in the abstract what
counts as a more or less expansive interpretation, or as a “narrow” or “broad” interpreta-
tion. The terms may more properly refer to a level of judicial activity, rather than to the
interpretation of the clause. Current interpretations of the Free Speech Clause entail
more judicial invalidation of statutes and other government actions than do current in-
terpretations of the Takings or Contract Clauses; in that sense the Free Speech Clause
might be said to be interpreted more broadly. On the other hand, one might say that
there is more judicial intervention only because a wide range of confiscations of property
or abrogations of contracts are unthinkable politically, and that the features of the politi-
cal culture that make them unthinkable are themselves part of the way the Takings
Clause and the Contract Clause are understood. In that sense there is no basis for saying
that those clauses are interpreted more narrowly.

6 See, for example, Chicago Board of Realtors, Inc. v City of Chicago, 819 F2d 732,
743-44 (7th Cir 1987) (Posner concurring) (“Imagine what freedom of speech would have
come to mean if the Court had interpreted the First Amendment-which is no more
absolute in its language or clearcut in its history than the contract clause-as loosely as it
now interprets the contract clause.”).

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1996] Common Law Constitutional Interpretation 883

to which the “preferred position” debate and the Carolene Prod-
ucts footnote were directed.’7 Here again there is a disjunction
between settled practice and the theoretical debate, because a
fully convincing theoretical justification for the practice still
seems elusive.

5. The priority of doctrine over text.

Although everyone agrees that the text is in some sense
controlling, in practice constitutional law generally has little to
do with the text. Most of the time, in deciding a constitutional
issue, the text plays only a nominal role. The issue is decided by
reference to “doctrine”-an elaborate structure of precedents built
up over time by the courts-and to considerations of morality and
public policy.

This point is, I think, obvious for judicial decisions. It is the
rare constitutional case in which the text plays any significant
role. Mostly the courts decide cases by looking to what the prece-
dents say.’8 But the same is true for other political actors and
for society as a whole. In public and political debates over the
First Amendment, while the text is ritually incanted (“no law”),
in fact the text matters very little (no one suggests that the First
Amendment applies only to Congress), and instead the public
debate invokes notions derived from precedents-clear and
present danger, prior restraint, obscenity, fighting words, view-
point discrimination, subsidy versus prohibition, reckless disre-
gard, incidental regulation, the centrality of political speech.
Debates over the Equal Protection Clause invoke not the words of
the Constitution but the supposed principles of Brown v Board of
Education’9 and subsequent cases. The “requirement” of a
search warrant is notoriously hard to square with the words of
the Fourth Amendment.20 Most informed nonlawyers would

17 United States v Carolene Products Co., 304 US 144, 152 n 4 (1938). On the “pre-
ferred position” debate, see, for example, Murdock v Pennsylvania, 319 US 105, 115 (1943)
(“Freedom of press, freedom of speech, freedom of religion are in a preferred position.”),
and Justice Frankfiurter’s criticism of this approach in Kovacs v Cooper, 336 US 77, 90-97
(1949) (Frankfurter concurring).

18 See, for example, Charles Fried, Constitutional Doctrine, 107 Harv L Rev 1140
(1994); Brest, 60 BU L Rev at 234 (cited in note 4); Harry W. Jones, The Brooding Omni-
presence of Constitutional Law, 4 Vt L Rev 1, 28 (1979); Henry Paul Monaghan, Stare

Decisis and Constitutional Adjudication, 88 Colum L Rev 723, 770-72 (1988).
19 347 US 483 (1954).
2 See Telford Taylor, Two Studies in Constitutional Interpretation 23-24 (Ohio State

1969); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv L Rev 757, 761

(1994).

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884 The University of Chicago Law Review [63:877

probably say that the Constitution requires “the separation of

church and state”-a principle that is by no means a necessary
implication of the words of the Establishment Clause.2′ Debates
over criminal justice invoke such ideas as reasonable doubt and
the presumption of innocence that are not found in the text.

6. The prevalence and importance of nontextual
amendments.

The Constitution has changed a great deal over time, but-to
overstate the point only slightly-the written amendments have
been a sidelight. Most of the great revolutions in American
constitutionalism have taken place without any authorizing or
triggering constitutional amendment. This is true, for example, of
the Marshall Court’s consolidation of the role of the federal gov-
ernment; the decline of property qualifications for voting and the
Jacksonian ascendance of popular democracy and political par-
ties; the Taney Court’s partial restoration of state sovereignty;
the unparalleled changes wrought by the Civil War (the war and
its aftermath, not the resulting constitutional amendments, were
the most important agents of change); the rise and fall of a con-
stitutional freedom of contract; the great twentieth-century
growth in the power of the executive (especially in foreign affairs)
and the federal government generally; the civil rights era that
began in the mid-twentieth century; the reformation of the crimi-
nal justice system during the same decades; and the movement
toward gender equality in the last few decades. In some of these
instances-notably the expansion of the congressional commerce
power and the enforcement of gender equality-amendments
bringing about the changes were actually rejected,22 but the
changes occurred anyway.

B. Common Law Constitutionalism

1. The two traditions.

There is, prominent in our legal tradition, a method-the
method of the common law-that both resolves the central puzzle

21 See, for example, Michael W. McConnell, Religious Freedom at a Crossroads, in
Geoffrey R. Stone, Richard A. Epstein, and Cass R. Sunstein, eds, The Bill of Rights in the
Modern State 115, 117-18, 168-94 (Chicago 1992).

‘ See, for example, Gerald Gunther, Constitutional Law 115 (Foundation 12th ed
1991) (child labor amendment); Jane J. Mansbridge, Why We Lost the ERA (Chicago
1986).

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19961 Common Law Constitutional Interpretation 885

of written constitutionalism and makes sense of these apparently
problematic aspects of our settled interpretive practices. The
common law method has not gained currency as a theoretical ap-
proach to constitutional interpretation because it is not an ap-
proach we usually associate with a written constitution, or in-
deed with codified law of any kind. But our written constitution
has, by now, become part of an evolutionary common law system,
and the common law-rather than any model based on the inter-
pretation of codified law-provides the best way to understand
the practices of American constitutional law.23

The currently prevailing theories of constitutional interpreta-
tion are rooted in a different tradition: implicitly or explicitly,
they rest on the view that the Constitution is binding because
someone with authority adopted it. This view derives from a
tradition-that of Austin and Bentham, and ultimately
Hobbes-that historically has been the great opponent of the
common law tradition. This authoritative tradition sees the law
as the command of a sovereign.24 Most current theories of con-
stitutional interpretation are of course vastly more refined than

23 The notion that American constitutional law is a common law system has no doubt
occurred to many, see, for example, Frederick Schauer, Is the Common Law Law?, 77 Cal
L Rev 455, 470 & n 41 (1989), but it does not seem to have received a theoretical defense,

see, for example, Brest, 60 BU L Rev at 228-29 & n 90 (cited in note 4) (identifying
“adjudication” and the “‘common law’ method” with “nonoriginalist strategies of constitu-

tional decisionmakingn). Harry H. Wellington has endorsed what he describes as a “com-
mon-law method of constitutional interpretation.” Harry H. Wellington, Interpreting the
Constitution: The Supreme Court and the Process of Adjudication 127 (Yale 1990). See also
Harry H. Wellington, Common Law Rules and Constitutional Double Standards: Some
Notes on Adjudication, 83 Yale L J 221, 265-311 (1973). But Wellington appears to under-
stand the common law method quite differently, emphasizing the role of “public” or
“conventional” morality and the text more heavily than the doctrinal structure established
by precedent. Wellington, Interpreting the Constitution at 82-88, 96-123; Wellington, 83
Yale L J at 284. See also Ely, Democracy and Distrust at 63-69, 218 n 112 (cited in note
14) (criticizing Wellington); Ackerman, 1 We the People at 17-18 (cited in note 2) (describ-
ing a “Burkean sensibility” that is “pronounced amongst practicing lawyers and judges,”
but that lacks a full theoretical justification). The “Burkean tendency” Ackerman de-
scribes-which he says is to some degree reflected in Charles Fried, The Artificial Reason
of the Law or: What Lawyers Know, 60 Tex L Rev 35 (1981), and Anthony T. Kronman,
Alexander Bickel’s Philosophy of Prudence, 94 Yale L J 1567 (1985)-seems substantially
more conservative than the common law approach I defend here, which, as I will discuss
below, allows for innovation and even sudden change. Compare Ackerman, 1 We the
People at 17-18 (cited in note 2), with text accompanying notes 40-42.

24 John Austin, The Province of Jurisprudence Determined, in John Austin, The
Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence 1
(Noonday 1954) (H.L.A. Hart, ed); Jeremy Bentham, Of Laws in General (Athlone 1970)
(H.L.A. Hart, ed); H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political
Theory (Clarendon 1982); Thomas Hobbes, Leviathan: with selected variants from the
Latin edition of 1668 172, 173 (Hackett 1994) (Edwin Curley, ed).

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886 The University of Chicago Law Review [63:877

the reference to a “command” would suggest. But they all in some
way reflect the hold of the authoritative tradition rather than the
tradition of the common law.

This point is perhaps most obvious in the case of straightfor-
ward forms of originalism. In its simplest form, originalism treats
the Framers of the Constitution (or its ratifiers) as the authorita-
tive entity, comparable to Austin’s sovereign. Originalism can, of
course, be defended on other grounds;25 but much of the intu-
itive plausibility of originalism stems from the notion that the
Framers are a super-legislature. Just as our representatives in
Congress have the power to tell us how to act, so do, in a more
indirect way, the Framers.26

The more sophisticated variants of originalism also belong to
the Austinian tradition. Some of these variants emphasize the
need to reinterpret or “translate” the Framers’ commands in
ways that take account of, for example, changes in factual knowl-
edge and social understandings that have occurred since the
Constitution was adopted.27 But the Framers’ command is still
the starting point, and still authoritative in significant ways.28
Perhaps the most important variant on originalism is what might
be called the neo-Hamiltonian view 29 according to which judges
should enforce not necessarily the intentions or understandings
of those who adopted the original constitutional provisions but
rather the decisions made by “we the people” at subsequent mo-
ments, when the population at large was intensely involved in
politics.30 This approach, too, adheres to the command model;

25 See, for example, Antonin Scalia, Originalism: The Lesser Evil, 57 U Cin L Rev
849, 862-64 (1989).

26 See Bork, Tempting of America at 143-60 (cited in note 1); Monaghan, 56 NYU L
Rev at 362-63, 396 (cited in note 14).

27 See Lawrence Lessig, Fidelity in Translation, 71 Tex L Rev 1165, 1169-82, 1263-68
(1993). Among the prominent antecedents of this view, I believe, is Alexander M. Bickel,
The Original Understanding and the Segregation Decision, 69 Harv L Rev 1(1955).

2 Lessig, for example, draws an analogy between constitutional interpretation and
(sophisticated understandings of) the relationship between principal and agent, see
Lessig, 71 Tex L Rev at 1254 (cited in note 27), and he emphasizes that “translation” is an
act of “fidelity” to the decisions of the Framers: ‘Firm within our legal culture is the
conviction that if judges have any duty it is a duty of fidelity to texts drafted by others,
whether by Congress or the Framers.” Id at 1182. The reliance on fidelity to a command
makes Lessig’s view Austinian. Lessig’s account does, however, allow for changes based on
the evolution of social understandings. See id at 1233-37. In those respects it may have
more in common with the common law view than either more straightforward originalism
or neo-Hamiltonian approaches do. See text accompanying notes 29-30.

2 After Alexander Hamilton’s famous justification of judicial review in Federalist 78,
in Clinton Rossiter, ed, The Federalist Papers 464, 466-72 (Mentor 1961).

3′ Ackerman, 1 We the People (cited in note 2), is the leading statement of the neo-

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19961 Common Law Constitutional Interpretation 887

now, the authoritative entity is not the Framers but “we the
people,” appropriately defined.3″

My argument is that no version of a command theory, how-
ever refined, can account for our constitutional practices. Consti-
tutional law in the United States today represents a flowering of
the common law tradition and an implicit rejection of any com-

mand theory.
In a sense this should not be surprising. The common law is

the most distinctive feature of our legal system and of the Eng-
lish system from which it is descended. We should expect that
the common law would be the most natural model for under-
standing something as central to our legal and political culture
as the Constitution. Other theories of constitutional interpreta-
tion struggle with the question why judges-and not historians,
philosophers, political scientists, or literary critics-are the cen-
tral actors in interpreting the American Constitution; the com-
mon law, more than any other institution, has been the province
of judges. American constitutional law is preoccupied, perhaps to
excess, with the question of how to restrain judges, while still
allowing a degree of innovation; the common law has literally

Hamiltonian view. Ackerman does call for ‘synthesis” of the judgments made at the
various times when ‘the people” have acted, see id at 86-104, an idea that has some
resemblance to the common law approach. But the emphasis in the neo-Hamiltonian view
is still crucially on discontinuous change, and changes brought about by public opinion.
The “synthesis” notion also associates Ackerman’s approach (to a limited degree) with
views that stress the need for narrative continuity in the law. Those views are at odds
with the common law approach in important ways. See text accompanying notes 40-42.
On the authoritarian nature of such views, see Frank Michelman, Law’s Republic, 97 Yale
L J 1493, 1515-24 (1988).

31 There are other nonoriginalist approaches that, while they cannot be called
Austinian, still seem to be under the sway of the command theory to some degree. The
representation-reinforcement view of Ely, Democracy and Distrust at 77-88 (cited in note
14), and others, see, for example, Michael J. KIarman, The Puzzling Resistance to Political
Process Theory, 77 Va L Rev 747, 747-48, 772-82 (1991), relies crucially on the text of the
Constitution and its implicit structure. The argument is partly that representation rein-
forcement, or improving the democratic process, is the best approach because (among oth-
er things) it assigns judges the normatively best role, Ely, Democracy and Distrust at 101-
04 (cited in note 14); but the argument is also partly that the representation-reinforce-
ment approach is implicit in the Framers’ design. See, for example, id at 88-101. This
latter aspect of the argument seems to be originalist or textualist. The “law as integrity”
theory of Ronald Dworkin, Law’s Empire (Belknap 1986), might also seem implicitly (and
unconsciously) beholden to the command theory, because it construes the law as if there
were a single intelligence behind it: the law is to be seen as the work of “the community
personified,” id at 167-75, or as a chain novel that could have been written by one person,
id at 228-38, or as an excogitation of “Hercules,” id at 238-44, 379-81. The constructed
single intelligence might be said to be the counterpart of the Austinian sovereign. A
common law approach, by contrast, does not require that the law cohere in this way.

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888 The University of Chicago Law Review [63:877

centuries of experience in the use of precedent to accomplish
precisely these ends.

Historically, the common law tradition has been burdened
with a degree of mysticism and also, at times, with excessive
conservatism.32 But neither of those features is an essential at-
tribute of the common law tradition. As I will suggest below, the
method of the common law can be understood in an entirely
rational way, free of medieval holdovers and notions of “time
immemorial.” As for the resistance of the common law to change:
at various periods in its history the common law has shown a
great capacity for innovation, and some of the greatest common
law judges-Coke, Hale, and Mansfield in Britain, and Shaw in
this country-are famous for the changes they brought about in
the common law. The same is true of, for example, Cardozo, per-
haps the greatest common law judge of this century; and
Cardozo’s The Nature of the Judicial Process,33 the leading
statement of the common law approach in this century, empha-
sizes the importance of innovation.

Properly understood, then, the common law provides the best
model for both understanding and justifying how we interpret the
Constitution. The common law approach captures the central
features of our practices as a descriptive matter. At the same
time, it justifies our current practices, in reflective equilibrium, to
anyone who considers our current practices to be generally ac-
ceptable cither as an original matter or because they are the
best practices that can be achieved for now in our society.4 The
common law approach makes sense of our current practices in
their broad outlines; but at the same time, it suggests some ways
in which our practices might be modified. It also suggests other
ways in which our practices should not be modified, for example
in the direction of a greater emphasis on original intent.

Perhaps common law constitutionalism is not the best we
could do if we were writing on a blank slate. But unless our cur-
rent practices are to be rejected wholesale, the common law mod-
el is (I suggest) the best way to understand what we are doing;
the best way to justify what we are doing; and the best guide to
resolving issues that remain open.35

3 J.GA. Pocock, The Ancient Constitution and the Feudal Law: A Study of English
Historical Thought in the Seventeenth Century 36-55 (Cambridge 1957).

3 Benjamin N. Cardozo, The Nature of the Judicial Process (Yale 1960).
4 On reflective equilibrium, see John Rawls, A Theory of Justice 20-21, 48-51

(Belknap 1971); John Rawls, Political Liberalism 8-9, 96-97 (Columbia 1993).
5 This type of approach-a combination of description and justification-has been

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19961 Common Law Constitutional Interpretation 889

2. The common law, written constitutions, and statutes.

At least two somewhat counterintuitive consequences follow
from the common law approach to constitutional interpretation.
The first is that the interpretation of the Constitution has less in
common with the interpretation of statutes than we ordinarily
suppose. Conventionally we think of legal reasoning as divided
into common law reasoning by precedent on the one hand, and
the interpretation of authoritative texts on the other. Constitu-
tional and statutory interpretation, while of course different in
many respects, are viewed as forms of the latter and fundamen-
tally different from the former.36

In fact, constitutional interpretation, as practiced today in
this country, belongs on the other side of the line. The command
view, although too simple, may make sense for many statutes: a
recent statute enacted by the people’s representatives is plausibly
an authoritative command of the sovereign that should be fol-
lowed for that reason. Of course this point must not be overstat-
ed. For many statutes, a common law approach to interpretation
may again be both the best description of our practices and the
best account of how we should proceed.37 But the usual reflex is
to associate the interpretation of statutes with the interpretation
of the Constitution, and to contrast both with the common law.
To whatever extent the contrast with the common law is true of
statutes, it is not true of an eighteenth- and nineteenth-century
constitution. Some of the puzzling aspects of our current practic-

called “interpretive.” See, for example, Dworkin, Law’s Empire at 46-68 (cited in note 31);
Fallon, 100 Harv L Rev at 1198-99 (cited in note 5). This may be a misleading term. The
idea is not to interpret our own practices-“interpretation” seems to be an idea better
applied to someone else’s practices-but to see if we can justify practices to which we are
(to some degree) committed, while leaving open the possibility of changing these practices
to some degree and providing guidance on how to decide controversial issues that arise
with these practices. The idea of justifying a practice in reflective equilibrium therefore
seems more suitable.

3 See Monaghan, 56 NYU L Rev at 392-93 (cited in note 14); Grey, 27 Stan L Rev at
703-04 (cited in note 4); Richard A. Posner, Problems of Jurisprudence 247-61 (Harvard
1990). See generally Lessig, 71 Tex L Rev at 1218-50 (cited in note 27) (applying same
analysis to statutes and the Constitution).

37 See, for example, Northwest Airlines, Inc. v Transportation Workers Union, 451 US
77, 95 (1981); National Soc’y of Professional Eng’rs v United States, 435 US 679, 688
(1978). See also Peter L. Strauss, On Resegregating the Worlds of Statute and Common
Law, 1994 S Ct Rev 429, 527-40 (1994); Guido Calabresi, A Common Law for the Age of
Statutes 101-19, 161-66 (Harvard 1982). It may be that statutory interpretation comes in
different forms, and the interpretation of certain statutes (old statutes or those with
relatively open-ended phrasing) resembles the common law more than the interpretation
of others.

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890 The University of Chicago Law Review [63:877

es of constitutional interpretation appear problematic only be-
cause of the unreflective association of constitutional and statuto-
ry interpretation. Once we understand constitutional interpreta-
tion as an outgrowth of the common law, those practices are
much less puzzling.

The second consequence of the common law approach to
constitutional interpretation is of particular significance now, in
a time of constitutional ferment in much of the world. It is that
the conventional distinction between written and unwritten con-
stitutions should be reconsidered.38 The important distinction is
not between nations with written constitutions and those with
unwritten constitutions, but rather between societies with ma-
ture, well established constitutional traditions and those with
insecure traditions. The written constitutionalism of the United
States has much more in common with the unwritten
constitutionalism of Great Britain than it does with the written
constitutionalism of a newly formed Eastern European state-or,
for that matter, than it does with the written constitutionalism
of, say, the postwar German Federal Republic or the Fifth French
Republic in its first decade.

This conclusion should not be surprising. Anyone not ante-
cedently committed to the distinction between written and un-
written constitutions would surely say that the constitutions of
the United States and Britain have more in common than those
of the United States and France, to say nothing of Poland or the
Czech Republic. The common law approach to constitutional
interpretation-an approach that reduces (although it does not
eliminate) the distinction between written and unwritten con-
stitutions- xplains why this is so in a way that other views
cannot.

3. An overview.

Common law constitutional interpretation has two compo-
nents. Each of these components provides a partial explanation
for why we should pay attention to the Constitution. Together
they provide both the best available answer to that question and,
I believe, the best account of our current practices of constitution-
al interpretation.

s For an example of the conventional argument in support of this distinction, see
Frank H. Easterbrook, Abstraction and Authority, 59 U Cbi L Rev 349, 363, 375 (1992).

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1996] Common Law Constitutional Interpretation 891

The first component is traditionalist. The central idea is that
the Constitution should be followed because its provisions reflect
judgments that have been accepted by many generations in a
variety of circumstances. The second component is
conventionalist. It emphasizes the role of constitutional provi-
sions in reducing unproductive controversy by specifying ready-
made solutions to problems that otherwise would be too costly to
resolve. The traditionalism underlying the practice of constitu-
tional interpretation is a rational traditionalism that acknowledg-
es the claims of the past but also specifies the circumstances in
which traditions must be rejected because they are unjust or
obsolete. The conventionalist component helps explain why the
text of the Constitution is important and how much flexibility
judges should have in interpreting it.

II. TRADITIONALISM IN COMMON LAW CONSTITUTIONAL
INTERPRETATION

A. Rational Traditionalism

Traditionalism in some realms of life is a matter of adhering
to the practices of the past just because of their age. The tradi-
tionalist component of common law constitutional interpretation
is different because it has a more rational basis. Its central no-
tion is not reverence for the past either for its own sake or be-
cause the past is somehow constitutive of one’s own or one’s
nation’s “identity.”39 Instead, the traditionalism that is central
to common law constitutionalism is based on humility and, relat-
ed, a distrust of the capacity of people to make abstract judg-
ments not grounded in experience.

The central traditionalist idea is that one should be very
careful about rejecting judgments made by people who were act-
ing reflectively and in good faith, especially when those judg-
ments have been reaffirmed or at least accepted over time. Judg-
ments of this kind embody not just serious thought by one group

3 For versions of these other forms of traditionalism in a legal context, see Fried, 107
Harv L Rev at 1140-41, 1144-57 (cited in note 18); Anthony T. Kronman, Precedent and
Tradition, 99 Yale L J 1029, 1046, 1066 (1990); Anthony T. Kronman, The Lost Lawyer:
Failing Ideals of the Legal Profession 215 (Belknap 1993). See Rebecca L. Brown, Tradi-
tion and Insight, 103 Yale L J 177, especially 212-13 (1993), and David Luban, Legal
Traditionalism, 43 Stan L Rev 1035, 1040-42 (1991), for criticisms of this form of tradi-
tionalism. Each endorses an approach that, while not called traditionalist, seems compati-
ble with the rational traditionalism I outline here. See, for example, Brown, 103 Yale L J
at 213-22; Luban, 43 Stan L Rev at 1055-57.

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892 The University of Chicago Law Review [63:877

of people, or even one generation, but the accumulated wisdom of
many generations. They also reflect a kind of rough empiricism:
they do not rest just on theoretical premises; rather, they have
been tested over time, in a variety of circumstances, and have
been found to be at least good enough.

Because, in this view of traditionalism, the age of a practice
alone does not warrant its value, relatively new practices that
have slowly evolved over time from earlier practices deserve
acceptance more than practices that are older but that have not
been subject to testing over time. That is why this form of tradi-
tionalism is associated with the common law and a system of
precedent. New precedents, at least to the extent that they reflect
a reaffirmation and evolution of the old, count for more than old
precedents that have not been reconsidered.’

The traditionalist argument for obeying the Constitution is
that the Constitution reflects judgments that should be taken
seriously for these reasons. As I will discuss later, traditionalism
does not provide a completely solid justification for adhering to
the text of the Constitution, but it is a start. The Framers do not
have any right to rule us today, but their judgments were the
judgments of people (the Framers and ratifiers) acting on the ba-
sis of serious deliberation. Moreover, the parts of the Constitu-
tion that have not been amended (the traditionalist argument
says) have obtained at least the acquiescence, and sometimes the
enthusiastic reaffirmation, of many subsequent generations.
Consequently, these judgments should not be swept aside lightly.
They should be changed only if there is very good reason to think
them mistaken, or if they fail persistently.

Understood in this way, traditionalism is counsel of humility:
no single individual or group of individuals should think that
they are so much more able than previous generations. This form
of traditionalism also subsumes the common-sense notion that
one reason for following precedent is that it is simply too time
consuming and difficult to reexamine everything from the ground
up. The premise of that common-sense notion is that any radical
reexamination of existing ways of doing things is likely to discard

4 See, for example, Planned Parenthood v Casey, 505 US 833, 864-70 (1992) (plurali-
ty opinion). See generally Michael J. Gerheardt, The Role of Precedent in Constitutional
Decisionmaking and Theory, 60 Geo Wash L Rev 68, 109-10 (1991); Rupert Cross and
J.W. Harris, Precedent in English Law 125-64 (Clarendon 4th ed 1991); Melvin Aron
Eisenberg, The Nature of the Common Law 50-76 (Harvard 1988).

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1996] Common Law Constitutional Interpretation 893

good practices, perhaps because it misunderstands them, and is
unlikely to find very many better ones.

These are familiar ideas, perhaps most commonly associated
with Burke. But they are also the underpinnings of the common
law approach to precedent. Before Burke wrote, this form of tra-
ditionalism was developed by Hale, Blackstone, and Coke, the
great ideologists of the common law.4″ Indeed, Burke wrote at a
time when the common law approach was a mainstay of English

41 See, for example, Calvin’s Case:

[W]e are but of yesterday, (and therefore had need of the wisdom of those that were
before us) and had been ignorant (if we had not received light and knowledge from
our forefathers) and our days upon the earth are but as a shadow in respect of the
old ancient days and times past, wherein the laws have been by the wisdom of the
most excellent men, in many successions of ages, by long and continual experience,
(the trial of right and truth) fined and refined, which no one man, (being of so short a
time) albeit he had in his head the wisdom of all the men in the world, in any one
age could ever have effected or attained unto.

77 Eng Rep 377, 381 (KB 1608). See also Matthew Hale, Reflections by the Lrd. Cheife
Justice Hale on Mr. Hobbes His Dialogue of the Lawe, reprinted in William Holdsworth, A
History of English Common Law 504 (Little, Brown 1937) (spelling and capitalization
updated):

[I]t is a reason for me to prefer a law by which a kingdom has been happily governed
four or five hundred years than to adventure the happiness and peace of a kingdom
upon some new theory of my own though I am better acquainted with the reason-
ableness of my own theory than with that law. Again I have reason to assure myself
that long experience makes more discoveries touching conveniences or inconveniences
of laws than is possible for the wisest council of men at first to foresee. And that
those amendments and supplements that through the various experiences of wise
and knowing men have been applied to any law must needs be better suited to the
convenience of laws, than the best invention of the most pregnant wits not aided by
such a series and tract of experience.

Compare Edmund Burke, Reflections on the Revolution in France 58-59 (Dent 1940):

The science of constructing a commonwealth, or renovating it, or reforming it, is, like
every other experimental science, not to be taught a priori…. The science of govern-
ment being therefore so practical in itself, and intended for such practical purposes, a
matter which requires experience, and even more experience than any person can
gain in his whole life, however sagacious and observing he may be, it is with infinite
caution that any man ought to venture upon pulling down an edifice, which has an-
swered in any tolerable degree for ages the common purposes of society.

Compare also id at 84:

We are afraid to put men to live and trade each on his own private stock of reason;
because we suspect that this stock in each man is small, and that the individuals
would do better to avail themselves of the general bank and capital of nations and of
ages.

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894 The University of Chicago Law Review [63:877

political culture, and he may have drawn more or less consciously
on the common law approach as his model for how society should
change.42 The common law ideology often had, in addition, a
mystical component, with its appeal to “time out of mind” and
the ineffable spirit of the English people.’ But traditionalism
need not have-and as I have defined it does not have any such
mystical aspect. It can be placed on an entirely rational footing.

In modern terms one might say that traditionalism is a rec-
ognition of bounded rationality.” Humans are not perfect com-
puting machines. People do not have the resources, intellectual
and otherwise, to consider every question anew with any hope of
consistently reaching the right result. Given the limits of human
capacities, it is often rational to use heuristic devices or rules of
thumb that have been worked out by others over time-to draw
on the common stock of wisdom, in Burke’s terms.45 The precise
extent to which this is true, and exactly where we should look for
heuristic aids, are matters of dispute; the common law reliance
on precedent is only one possible approach. But the core ideas of
common law traditionalism-humility, the limits of human rea-
son, and distrust of abstract argument-are plausible and not at
all parochial or mystical.

B. Innovation and Morally Unacceptable Traditions

Any traditionalist view must address the question of when a
tradition should be rejected on the ground that it is morally
wrong. Some of the most celebrated accomplishments of Ameri-
can constitutional law in this century have overturned estab-
lished doctrine-notably the New Deal abandonment of freedom
of contract and expansion of federal legislative power; the War-
ren Court’s many innovations, especially Brown, the most famous
case involving a morally unacceptable tradition; and more recent
innovations in the law of gender equality. It might be thought

42 See J.GA Pocock, Burke and the Ancient Constitution: A Problem in the History of
Ideas, in J.GA Pocock, ed, Politics, Language, and Time: Essays on Political Thought and
History 206-32 (Chicago 1989).

4 See, for example, Pocock, The Ancient Constitution and the Feudal Law at 33-34
(cited in note 32), quoting John Davies’s unpaginated preface to Les Reports des Cases &

Matters en Ley, Resolves & Adjudges en les Courts del Roy en Ireland (Atkyns 1674).
i The origin of this notion is in Herbert A. Simon, A Behavioral Model of Rational

Choice, 69 Q J Econ 99, 99-101 (1955). See generally Herbert A. Simon, Models of Man:
Social and Rational: Mathematical Essays on Rational Human Behavior in a Social
Setting (Wiley 1957).

‘ Burke, Reflections on the Revolution in France at 84 (cited in note 41). See also
Hale, Reflections at 505 (cited in note 41).

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1996] Common Law Constitutional Interpretation 895

that common law constitutionalism, with its emphasis on tradi-
tion and precedent, would be too receptive to pernicious tradi-
tions and would have a difficult time justifying dramatic innova-
tions like these.

But when common law traditionalism is placed on a rational
basis, it is not the iron rule that traditionalism is sometimes
thought to be. Traditionalism need not mean that all traditions
are sacrosanct or that abstract argument is never to be accepted.
If one has a great deal of confidence in an abstraction, it can
override the presumption normally given to things that have
worked well enough for a long time. But that is the structure of
the controversy: are we sufficiently confident in the abstract or
theoretical argument to justify casting aside the work of genera-
tions? Even if we are, we should prefer evolutionary to revolu-
tionary change. But revolutionary change remains possible, and
tradition is not to be venerated beyond the point where the rea-
sons for venerating it apply.

Traditionalism, once it is understood in this rational way,
answers the concern about morally unacceptable traditions. That
concern has greater force when traditionalism is justified in less
rationalistic terms, for example as establishing a quasi-religious
bond with the past or as maintaining a national identity. The
question then becomes what to do when the past, or the nation’s
identity, is bound up with a practice that one considers morally
wrong. But a rationalistic account of traditionalism just estab-
lishes a requirement that one give the benefit of the doubt to
past practices. If one is quite confident that a practice is
wrong-or if one believes, even with less certainty, that it is
terribly wrong-this conception of traditionalism permits the
practice to be eroded or even discarded.

In fact it is a great strength of the common law approach,
compared to other views, that it gives relatively clear guidance
about how we are to weigh the claims of tradition against our
current assessment of the justice or appropriateness of a legal
rule. Everyone recognizes that law, including constitutional law,
is in substantial part about following precedent and otherwise
maintaining continuity with the past. Nearly everyone also recog-
nizes that sometimes we must depart from the teachings of the
past because we think they are not just or do not serve human
needs. Everyone also knows that it is not possible to specify an
algorithm for deciding when such a departure is warranted. The
challenge is to give as illuminating an account as we can of how
that decision is to be made: to specify what we should take into

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896 The University of Chicago Law Review [63:877

account and how we should think about the problem of reconcil-
ing the claims of the past with those of morality or fairness.

Other approaches are either less plausible or much less help-
ful in this respect than a common law theory based on rational
traditionalism. Consider in this connection approaches that em-
phasize the need for the law to maintain some form of narrative
continuity, or the theory of “law as integrity”-that maintaining
continuity with the past is a requirement of “integrity” even
when we would now regard the past decisions as wrong.’ “In-
tegrity” in this sense is to be balanced against the requirements
of “justice and fairness.” As others have argued, this view seems
not fully to come to grips with how extraordinary, and problem-
atic, it is to perpetuate judgments that we now believe, all things
considered, to be morally wrong.47 It is odd to say that “integri-
ty” or “fairness” or any other recognized virtue requires us (even
ceteris paribus) to continue to do things that are wrong, just be-
cause we have done them before.’ Without a clear understand-
ing of why we should not simply repudiate what are, by hypothe-
sis, wrong judgments, it is difficult to know when we should
discard them, or even how to think about that question.

The common law approach, as I have characterized it, es-
capes this predicament. It does not suppose that there is some
independent value in adhering to past judgments that are by
hypothesis wrong, which is to be compared to the value of mak-
ing the right judgment. The idea of rational traditionalism is
simply that we should think twice about our judgments of right
and wrong when they are inconsistent with what has gone be-
fore. We adhere to past practices not despite their wrongness, but

46 “Law as integrity” is the theory developed in Dworkin, Law’s Empire (cited in note
31). See also the discussion in Michelman, 97 Yale L J at 1513-14 (cited in note 30). The
account offered in Fried, 107 Harv L Rev at 1156-57 & n 55 (cited in note 18) (citing
Dworkin with approval, but arguing that his “chain novel” analogy “suggests too little by
way of constraint”), is similar, although it appears to have a more strongly traditionalist
component. Neil MacCormick, Legal Reasoning and Legal Theory 229-74 (Oxford 1978),
although critical of several elements of Dworkin’s approach, offers a similar argument.

41 See in particular the discussion in Joseph Raz, The Relevance of Coherence, 72 BU
L Rev 273, 297-309, 321 (1992).

‘ See the ironic comment of Jonathan Swift, Gulliver’s Travels 309 (Oxford 1960):

It is a maxim among [our] lawyers that whatever has been done before may legally
be done again, and therefore they take special care to record all the decisions former-
ly made against common justice and the general reason of mankind. These, under
the name of precedents, they produce as authorities to justify the most iniquitous
opinions, and the judges never fail of directing accordingly.

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1996] Common Law Constitutional Interpretation 897

because we might be mistaken to think them wrong. It follows
that if, on reflection, we are sufficiently confident that we are
right, and if the stakes are high enough, then we can reject even
a longstanding tradition.

In short, the danger is not that an action that we are con-
vinced is otherwise morally right will affront “integrity” because
it is inconsistent with some previous action. Rather, the dangers
are recognizable human frailties-arrogance, vision limited to
one’s own circumstances, excessive trust in one’s own rational
powers, ignorance of the complexity of the situation. If we think
we are justified in running those risks, we may move away from,
and even break with, any tradition.

C. The Problems of Traditionalism and the Text

Although traditionalist ideas descend from the common law,
to some degree they apply to the textual provisions of the Consti-
tution as well. Except for the most recent amendments, the text
of the Constitution has, by now, been validated by tradition.
Subsequent generations have acquiesced in the judgments re-
flected in the provisions of the Constitution: they have not
amended them, rebelled against them, insisted on judges who
would refuse to enforce them, or repeatedly taken political ac-
tions that ignored them.49

At the same time, however, as the association with the com-
mon law suggests, traditionalism is not unequivocal in its sup-
port for the text. The judgments to which deference is due are
not just those embodied in the text. Nor is deference due to all
the judgments in the text equally. If practices have grown up
alongside the text, or as a matter of interpreting the text, or even
in contradiction of the text, those practices too are entitled to
deference if they have worked well for an extended time. An old
precedent that has been accepted by subsequent generations is,
under the traditionalist component of the common law approach,
on a par with the text.

Marbury v Madison50 and McCulloch v Maryland5″ are ex-
amples. Neither decision has a particularly clear textual basis.

a The persistence of a provision does not necessarily show that people generally
approve of it or even acquiesce in it, of course; it might just show that powerful groups or
actors are in a position to prevent it from being changed. But the longer a provision has
survived, the more likely it is that people generally at least find it minimally acceptable.

6 5 US (1 Cranch) 137 (1803).

61 17 US (4 Wheat) 316 (1819).

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898 The University of Chicago Law Review [63:877

They are simply extremely well established precedents. But there
is no sense in denying that both are every bit as much a part of
the Constitution as the most explicit textual provision. The same
is true of a well established practice that is neither explicit in the
text nor embodied in a judicial precedent, such as the rule that a
majority vote of the members of each house of Congress is neces-
sary and sufficient to constitute “pass[age]” of a bill under Article
I, Section 7.52 So far as traditionalism is concerned, provisions of
the text are no more entitled to obedience than any other long-
standing practice.

By the same token, not every textual judgment is entitled to
equal deference. All are perhaps entitled to a degree of respect,
since they represent serious, good-faith efforts to address prob-
lems. But if some textual judgments have worked better than
others, they are entitled to greater support. And, perhaps more
strikingly, under the traditionalist view there is nothing wrong
with sometimes deciding (in exceptional cases, to be sure) that a
textual provision should be discarded-just as precedents can be
overruled. In that respect traditionalism is quite clearly not con-
sistent with our practices and must be modified in ways I will
discuss below.

Traditionalism in this form provides at least a colorable
answer to Noah Webster’s question. We follow judgments made
long ago by people living in a different society for two rea-
sons-serious judgments made in good faith merit some defer-
ence; and, more important, those judgments have worked, at
least well enough to enjoy continued acceptance in many subse-
quent, different circumstances. There is no need to apotheosize
the Framers of the Constitution-only to recognize their serious-
ness and their good faith, and the fact that many of their ar-
rangements have been at least reasonably successful for genera-
tions.

D. Traditionalism and the Puzzles

Traditionalism also provides a partial explanation of some of
the puzzling aspects of our current practices.

52 See, on this subject, Bruce Ackerman, et al, An Open Letter to Congressman
Gingrich, 104 Yale L J 1539, 154143 (1995). Whatever the scope of congressional power
to impose supermajority rules, the tradition that a majority vote is sufficient (at least in
the absence of such rules) has grown up without any specific textual support, or for that
matter any awareness of the kind of support identified in id.

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1996] Common Law Constitutional Interpretation 899

1. Text.

The least satisfactory aspect of traditionalism, as an explana-
tion for the basis of American constitutional law, is the way it
accounts for the use of the text. But even here traditionalism at
least points in the right direction. Unlike some competing views,
traditionalism is able to explain why the text matters; but unlike
others, it does not sanctify the text. On a traditionalist approach,
as I have said, the text should count for something but not every-
thing. In rough terms, that is our practice.

The problem with traditionalism is that, taken alone, it
would justify much sharper departures from the text than our
current practices allow. It would treat a textual provision as no
more binding than a common law precedent. But it is no part of
our practice ever to “overrule” a textual provision. Even if a pro-
vision is read very narrowly, even to the point of being in fact a
dead letter, it is not acceptable explicitly to say (as one can say
about a precedent) that a textual provision is no longer good law
because it has outlived its usefulness. This is one reason that
traditionalism must be supplemented by a conventionalist ac-
count.

2. The Framers’ specific intentions.

Traditionalism also explains why the specific intentions of
the Framers matter, but matter less than the text and can be
disregarded more freely. Those intentions reflect judgments made
with care at times when the Framers, and in some cases the
entire society, were seriously addressing an issue. Consequently,
on Burkean grounds, those intentions are entitled to some re-
spect. This is especially true when subsequent generations have
accepted those judgments.

At the same time, however, judgments not embodied in the
text are likely to be less well considered than judgments that are.
Moreover, while the fact that a provision has not been amended
does suggest that subsequent generations have acquiesced in the
judgments expressed in the text (however limited those might
be), it does not necessarily suggest that they have acquiesced in
the specific views of those who drafted or adopted the text.

In fact, in determining the significance of the Framers’ inten-
tions, the method of the common law seems to apply quite direct-
ly to constitutional interpretation. The text of the Constitution is
analogous to the holding of an earlier case; the Framers’ specific
intentions (assuming they can be ascertained) are analogous to

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900 The University of Chicago Law Review [63:877

the earlier court’s reasoning. The reasoning counts for something.
It cannot be brushed aside. But it definitely does not count for as
much as the holding. Moreover, a later judge can be faithful to
the precedent so long as she follows the holding, even if she dis-
regards the specific reasoning. Likewise, in constitutional inter-
pretation, the Framers’ intentions should not be ignored, but
sometimes one can be faithful to the obligation to follow the text
even while acting in direct contradiction of the Framers’ inten-
tions. There is a good Burkean reason for this (rough) parallel:
the language adopted by the Framers, like the holding of a case,
represents the most fully considered judgment of the earlier deci-
sion maker. The Framers’ explanations of why they adopted that
language, like judges’ elaborations of their reasons for a holding,
are likely to be the product of less careful consideration, and may
even be post hoc rationalization, self-justification, or political
posturing.53

3. The role of moral judgments.

The traditionalist component of the common law model also
explains the role of moral judgments in constitutional interpreta-
tion. Moral judgments-judgments about fairness, good policy, or
social utility-have always played a role in the common law, and
have generally been recognized as a legitimate part of common
law judging.’ At the same time, it has always been a part of
the common law that judges are not free to do whatever they
think is right. Precedent limits them in significant ways.

This is essentially what the practice is in constitutional in-
terpretation. Some matters are settled by the text; no policy ar-

guments, however sound, could justify the conclusion that Con-
gress may by majority vote elect the President.55 Other matters

See, for example, Cardozo, Nature of the Judicial Process at 29-30 (cited in note 33)
(MI own that it is a good deal of a mystery to me how judges, of all persons in the world,
should put their faith in dicta. A brief experience on the bench was enough to reveal to
me all sorts of cracks and crevices and loopholes in my own opinions when picked up a
few months after delivery, and reread with due contrition.”).

4 The leading modern statement of the common law approach, Cardozo’s Nature of
the Judicial Process (cited in note 33), repeatedly asserts the importance of moral judg-
ments. (Cardozo does not use that term, referring instead to “sociology” or “the welfare of
society,” but it is clear that he means moral judgments.) See, for example, id at 94-97. For
the role of morality in the views of the classic common law theorists, see Gerald J.
Postema, Bentham and the Common Law Tradition 60-77 (Oxford 1986). For the role of
morality in the common law generally, see Eisenberg, Nature of the Common Law at 14-
26 (cited in note 40); A.W.B. Simpson, The Common Law and Legal Theory, in A.W.B.
Simpson, ed, Oxford Essays on Jurisprudence 79, 80-88 (Clarendon 2d series 1973).

The original understanding is actually less clear. The Framers may have envi-

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1996] Common Law Constitutional Interpretation 901

are settled by precedent. But within the boundaries set by the
text and precedent, judgments of fairness and policy are appro-
priate. For substantive reasons, judges interpreting the Constitu-
tion should be less willing to make such judgments, or more
willing to defer to the other branches, because a constitutional
decision, unlike a common law decision, cannot be overturned by
the legislature.56 But this is a substantive principle about the
proper scope of judicial review. The legitimacy of moral judg-
ments should not be any more questionable in constitutional
interpretation than it is in the common law.

Even though moral judgments are an inescapable part of
constitutional interpretation, there are repeated suggestions that
it is somehow illegitimate for such judgments to play a role,57
and those who deny their illegitimacy are often defensive about
using them. Part of the reason for this, I believe, is the continu-
ing hold of some version of the command theory: those who deny
the legitimacy of moral judgments are, on some level, agreeing
with Hobbes’s dictum that “[i]t is not Wisdom, but Authority that
makes a Law.”58 If constitutional interpretation is a matter of
faithfully carrying out authoritative decisions made by others,
then it is indeed problematic-potentially a usurpation-for the
interpreter to rely on her own moral judgments.59 Sometimes, of
course, the proper interpretation of a command is that the inter-
preter should do what is best by the interpreter’s own lights. But
in a command theory, moral judgments will properly have at
most only that kind of limited and derivative role. That is the
role we instinctively believe that moral or policy judgments
should play in statutory interpretation.

But in constitutional interpretation as we practice it, the role
of such judgments is more central. There is some moral (or poli-
cy, or fairness) component to many unsettled constitutional is-

sioned that the House (voting by states) would routinely elect the President, because
before the development of the party system the leading candidate would seldom have a
majority. James Ceaser, Presidential Selection: Theory and Development 45-46 (Princeton
1979).

5 See text accompanying notes 109-15.
67 See, for example, Bork, Tempting of America at 16-18, 241-50 (cited in note 1).
6 Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common

Laws of England 55 (Chicago 1971) (Joseph Cropsey, ed).
6 See Monaghan, 56 NYU L Rev at 353 (cited in note 14); Michael W. McConnell,

The Role of Democratic Politics in Transforming Moral Convictions into Law, 98 Yale L J
1501, 1527 (1989), reviewing Michael J. Perry, Morality, Politics, and Law (Oxford 1988).
See McConnell, 98 Yale L J at 1535-38, for additional arguments to the effect that judges
in particular should not be trusted to make moral judgments.

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902 The University of Chicago Law Review [63:877

sues. Traditionalism, and the analogy to the common law, ex-
plain why this is so. The reason for adhering to judgments made
in the past is the counsel of humility and the value of experience.
Moral or policy arguments can be sufficiently strong to outweigh
those traditionalist concerns to some degree, and to the extent
they do, traditionalism must give way.

Similarly, if the tradition is weak, equivocal, or unsettled,
moral judgments play a correspondingly greater role. Many of the
Supreme Court decisions that seem most clearly to break with
tradition-the New Deal decisions overthrowing freedom of con-
tract; Brown and other decisions striking down state-enforced
racial segregation; and more recent decisions enforcing gender
equality-have this character. Perhaps the moral imperative was
sufficiently great that those decisions would have been justified
even if the traditions had been stronger.60 But those lines of pre-
cedent were beginning to fray before the Supreme Court discard-
ed them, and that made it easier to overrule them.6″ This is the
method of the common law, and-with the qualification, men-

6′ In the case of freedom of contract, in particular, the moral question is somewhat
cloudy. See the discussion in Robert G. McCloskey, Economic Due Process and the Su-
preme Court: An Exhumation and Reburial, 1962 S Ct Rev 34, 40-54 (1962) (discussing
other possible explanations). See also Jerry L. Mashaw, Constitutional Deregulation: Notes
Toward a Public, Public Law, 54 Tulane L Rev 849, 849-60 (1980). The rejection of a
constitutional freedom of contract might be understood as the result of a process that dis-
closed that a doctrine with some virtue was unworkable in practice-a process typical of
common law development. See, for example, Edward H. Levi, An Introduction to Legal
Reasoning 9-25 (Chicago 1963).

61 The constitutionality of race discrimination had not been reaffirmed by the Su-
preme Court for decades before Brown. See, for example, Cumming v Board of Education,
175 US 528 (1899). Also, some pre-Brown decisions were hard to square with the contin-
ued existence of any form of “separate but equal.” See, for example, Gaines v Canada, 305
US 337 (1938); Sipuel v Board of Regents, 332 US 631 (1948); McLaurin v Oklahoma
State Regents, 339 US 637 (1950); Sweatt v Painter, 339 US 629 (1950). See also Louis
Michael Seidman, Brown and Miranda, 80 Cal L Rev 673, 708 (1992) (‘Given what came
before, the real question is why Brown needed to be decided at all.”). See generally
Seidman’s discussion, id at 699-708, tracing the disintegration of state-enforced racial
segregation to McCabe v Atchison, Topeka & Santa Fe Railway, 235 US 151 (1914). See
also Geoffrey R. Stone, et al, Constitutional Law 497 (Little, Brown 2d ed 1991) (“After
Sweatt and McLaurin, was there anything left for the Court to decide in Brown?”). The
Court had reaffirmed the constitutional freedom of contract not long before the New Deal
shift, see New State Ice Co. v Liebmann, 285 US 262 (1932); Louis K Liggett Co. v
Baldridge, 278 US 105 (1928); Adkins v Children’s Hospital, 261 US 525 (1923). The shift
is generally taken to have begun with Nebbia v New York, 291 US 502 (1934), but the line
of precedent was studded with inconsistencies. See David P. Currie, The Constitution in
the Supreeme Court: The Second Century, 1888-1986 210 (Chicago 1990). At the time of the
change in the law of gender discrimination, which dates to Reed v Reed, 404 US 71 (1971),
no gender-based classification had been upheld for ten years, see, for example, Hoyt v
Florida, 368 US 57 (1961), but perhaps more important were the developments in the law
of race discrimination, which drew gender classifications into question.

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1996] Common Law Constitutional Interpretation 903

tioned but not yet explained, for the binding force of the
text-this is our constitutional practice, too.

4. Preferred position.

Prima facie it seems questionable to interpret some provi-
sions of the Constitution broadly and some narrowly. Even
among those who think this practice is justified, many view it as
one of the central puzzles of modern constitutional law.62 In the
background is the sense that the real reason for interpreting (for
example) the First Amendment more broadly than the Contract
Clause is that we think the First Amendment is better, or more
important, as a matter of policy or justice and that this is not a
legitimate reason for treating provisions differently.

As a result, some theories try to devise other explanations
for treating different provisions differently. Justice Black tried to
address this issue by urging that all rights explicitly stated in
the text-both the First Amendment and the Contract
Clause-should be treated the same way, and that rights that do
not have an explicit textual source should not be recognized at
all.63 Others have suggested that rights that are integral to the
protection of the democratic process should be interpreted more
expansively than those that are not.64 But the problems with
both of these theoretical approaches have been well cata-
logued,65 and neither describes our practices very well.

Once constitutional interpretation is seen as a process akin
to the common law, instead of as a matter of fidelity to an au-
thoritative direction, the existing, settled practice becomes much
less problematic. The interpretation of constitutional provisions
parallels the interpretation of precedents. Not all precedents are
treated the same, and the differences are (or legitimately can be)
explicitly based on whether the precedent is a good idea as a
matter of morality or social policy.66 Some precedents and provi-

‘ See, for example, Ely, Democracy and Distrust especially chs 2, 3 (cited in note 14);
Archibald Cox, The Court and the Constitution 196-97 (Houghton Mifflin 1987); Laurence
H. Tribe, American Constitutional Law 769-72 (Foundation 2d ed 1988) (describing this

and kindred issues as the basic problem of post-1937 constitutional law).

3 Compare, for example, City of El Paso v Simmons, 379 US 497, 517 n 1 (Black
dissenting), with Griswold v Connecticut, 381 US 479, 508-18, 520-25 (1965) (Black
dissenting).

6′ See, for example, Ely, Democracy and Distrust at 86-88 (cited in note 14). See also
Klarman, 77 Va L Rev at 768-82 (cited in note 31).

‘ Ely, Democracy and Distrust at 11-41 (cited in note 14); Laurence H. Tribe, The
Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L J 1063 (1980);
Paul Brest, The Substance of Process, 42 Ohio St L J 131 (1981).

f See KN. Llewellyn, The Bramble Bush: On Our Law and Its Study 74-75 (Oceana

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904 The University of Chicago Law Review [63:877

sions are read broadly, in the sense that they are taken to stand
for an important principle that must be vindicated even at
significant cost to other interests. Those precedents or provisions
are treated as the foundation for an elaborate and far reaching
doctrinal structure. The First Amendment is an example. Other
precedents or provisions are ‘limited to their facts”-they are not
overruled or ignored, but they are confined to a very narrow
range of applications. The Contract Clause has been “limited to
its facts” in this way. Roughly speaking, it is interpreted to reach
the narrowest range of cases that it could reach without being
effectively read out of the Constitution.

5. The priority of doctrine over text.

Here the superiority of the common law theory, as an ac-
count of existing practice, is apparent. In practice constitutional
law is, mostly, common law. What matters to most constitutional
debates, in and out of court, is the doctrine the courts have creat-
ed, not the text.67 Of course the text matters to some degree
and, as I have said, it matters in ways that traditionalism alone
cannot explain. But traditionalism, and the common law method,
account for the largest part of constitutional practice.

In this connection, common law constitutional interpretation,
with its traditionalist explanation for why we care about what
the Constitution says, captures an aspect of our practice that
differs from the usual rhetoric. The rhetoric habitually extols the
exceptional wisdom and foresight of the Founding generation.
There is reason for crediting the Framers with exceptional fore-
sight, as I will explain below, if explanation is needed. But the
notion that the Founding generation was uniquely wise (as the
rhetoric sometimes suggests) is not borne out by our practice.”
The great achievements of American constitutional law today are
the product not just of the Framers and their generation but of
Marshall and Story, of the generation that fought the Civil War
and initiated Reconstruction, of Brandeis and Holmes, of the New
Deal generation, of the Warren Court, and of many other people
(not just judges) along the way.

1960); Cardozo, Nature of the Judicial Process at 149-52 (cited in note 33).
67 See text accompanying notes 18-21.
‘ See Holmes’s remark in Missouri v Holland: “The case before us must be consid-

ered in light of our whole experience and not merely in that of what was said a hundred
years ago.” 252 US 416, 433 (1920).

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1996] Common Law Constitutional Interpretation 905

It is by no means clear-in fact it seems quite mistaken to
say-that the Founding generation is the dominant or even the
most important influence in American constitutional law today.
The common law approach explains this. The vision of the com-
mon law is precisely that the law is the product not of a few
exceptional lawgivers (or one lawgiving generation), but of many
generations of lawyers and judges.69 That is our practice.

6. Extratextual amendments.

The common law approach also explains this apparently
settled aspect of our practice. The most important changes to the
Constitution-many of them, at least-have not come about
through changes to the text. They have come about either
through changes in judicial decisions, or through deeper changes
in politics or in society.

Moreover, contrary to the neo-Hamiltonian approach, many
of these changes evolved over time instead of occurring all at
once. To consider just this century, the following changes in the
Constitution-they must be regarded as that-are neither trace-
able to a textual amendment nor the product of a sudden shift,
but rather are the products of evolutionary growth: the accretion
of federal power, roughly in the first half of this century; the ac-
cretion of executive power, principally in the middle third of this
century; the growth of a federal regulatory state in ways difficult
to square with previous understandings of the separation of pow-
ers; the development of extensive protections for freedom of ex-
pression; the development of constitutional protections for wom-
en; and the federalization of criminal procedure. Other important
changes in this century are somewhat-only somewhat-less
evolutionary, but again cannot be traced to any textual amend-
ment. The demise of a constitutional freedom of contract and the
growth of constitutional protection for racial minorities are exam-
ples.

In all of these instances, the development of constitutional
law followed, more or less closely, a common law model. Changes
occurred only after the groundwork was laid: either the old doc-
trine proved unstable on its own terms, or changes in society
made it seem wrong. The changes were based on considerations
of policy and social justice, and, to some extent, on earlier deci-

69 See Coke’s observation from Calvin’s Case in note 41. See also Michelman, 97 Yale
L J at 1498 (cited in note 30).

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906 The University of Chicago Law Review [63:877

sions. The changes were evolutionary: there was no single, au-
thoritative act that marked any of these changes. (The most
prominent arguable exception-Brown-was the culmination of
both an elaborate legal campaign and an evolution in social atti-
tudes.70) In at least two instances-the Child Labor Amendment
and the Equal Rights Amendment-the change in the law came
about even though it was rejected, or at least not accepted, by
“we the people” in the textual amendment process. These are

very important parts of American constitutional law, and the
common law approach seems to explain them best. Traditional-
ism-the cornerstone of the historic common law meth-
od-therefore provides both a plausible answer to the fundamen-
tal problems of written constitutionalism and a justification of
some of the otherwise puzzling settled practices.

III. CONVENTIONALISM AND THE COMMON LAW METHOD

A. Conventionalism and the Text

1. The conventionalist justification for adhering to the text.

Traditionalism does fall short in at least one important re-
spect: it cannot account for the deference that is given to the text.
A strictly traditionalist approach would occasionally “overrule”
textual provisions. But it is not acceptable, in our practice, to
declare that a provision of the Constitution (for example, the
provision requiring that the President be a natural-born citizen)
has outlived its usefulness and therefore is no longer the law.
Explicitly declaring that a provision was no longer part of the
Constitution would be an act of civil disobedience or, if the provi-
sion were very important, revolution. In some way or another,
however creative the interpretation, the text must be respected.

Moreover, where the text is relatively clear, it is often fol-
lowed exactly. Simply as a descriptive matter, no one seriously
suggests that the age limits specified in the Constitution for
Presidents and members of Congress should be interpreted to
refer to other than chronological (earth) years because life expec-
tancies now are longer, that a President’s term should be more

70 See generally Mark V. Tushnet, The NAACPs Legal Strategy against Segregated
Education, 1925-1950 (North Carolina 1987). See also Michael J. Klarman, Brown, Racial
Change, and the Civil Rights Movement, 80 Va L Rev 7, 13-75 (1994) (“The reason the
Supreme Court could nnmously invalidate public school desegregation in 1954 … was
that deep-seated social, political, and economic forces had already begun to undermine
traditional American racial attitudes.’).

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1996] Common Law Constitutional Interpretation 907

than four years because a more complicated world requires great-
er continuity in office, or that states should have different num-
bers of Senators because they are no longer the distinctive sover-
eign entities they once were.7′ The text is not always treated in
this way: “Congress” in the First Amendment is taken, without
controversy, to mean the entire federal government, even though
elsewhere “Congress” certainly does not include the courts or the
President. But sometimes the text is treated this way, and the
traditionalist, Burkean account cannot explain why specific provi-
sions are taken as seriously as they are, as often as they are.

Conventionalism, the second component of common law con-
stitutional interpretation, takes care of this deficiency. Conven-
tionalism is a generalization of the notion that it is more impor-
tant that some things be settled than that they be settled right.
The text of the Constitution is accepted (to adapt a term used in
a related way by its originator) by an “overlapping consensus”:
whatever their disagreements, people can agree that the text of
the Constitution is to be respected.72

Left to their own devices, people disagree sharply about
various questions, large and small, related to how the govern-
ment should be organized and operated. In some cases, the text
of the Constitution provides answers; in many other cases, the
text limits the set of acceptable answers. People who disagree
will often find that although few or none of them think the an-
swer provided by the text of the Constitution–either the specific
answer or the limit on the set of acceptable answers-is optimal,
all of them can live with that answer. Moreover, not accepting

7 See, for example, Sanford Levinson, Accounting for Constitutional Change (Or,
How Many Times Has the United States Constitution Been Amended? (a) <26; (b) 26; (c) >26; (d) all of the above), in Sanford Levinson, ed, Responding to Imperfection: The Theory
and Practice of Constitutional Amendment 13, 18 (Princeton 1995).

72 On the notion of an overlapping consensus, see Rawls, Political Liberalism at 133-
72 (cited in note 34). Rawls uses the term to refer to agreement on a “political concep-
tion”-a set of principles to govern the basic structure of society-which agreement is
reached among people who have differing ‘comprehensive” views. See id at 134-40. Com-
prehensive views govern moral questions generally and therefore go far beyond the
political. See id at 174-76.

It is crucial to Rawls’s idea that the political conception is willingly affirmed by the
holders of different comprehensive views, as fully consistent with their comprehensive
views. See id at 171. An overlapping consensus is therefore different from a modus viven-
di, which is the product of a compromise and a coincidence of self-interest among compet-
ing parties. A modus vivendi exists when people settle on a certain set of principles as a
necessary evil, even though those principles do not follow from their comprehensive views.
See id at 147. It is unclear to what extent conventionalism, as I have defined it, should be
seen as describing an overlapping consensus as opposed to a modus vivendi, but in any
case the metaphor of an overlapping consensus seems useful in describing it.

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908 The University of Chicago Law Review [63:877

that answer has costs-in time and energy spent on further dis-
putation, in social division, and in the risk of a decision that
(from the point of view of any given actor) will be even worse
than the constitutional decision. In these circumstances, everyone
might agree that the best course overall is to follow the admitted-
ly less-than-perfect constitutional judgment.

In addition, conventionalism can be justified on the ground
that it is a way for people to express respect for their fellow citi-
zens. Even among people who disagree about an issue, it is a
sign of respect to seek to justify one’s position by referring to
premises that are shared by the others. Moral argument in gen-
eral has this structure (at least according to most modem concep-
tions). But appealing simply to shared abstract moral conceptions
(such as a common abstract belief in human dignity) does less to
establish bonds of mutual respect than appealing to more con-
crete notions that do more to narrow the range of disagree-
ment-such as the appropriateness of adhering to the text of the
Constitution.

These conventionalist ideas are, of course, not novel. They
date to Aristotle and were expounded by Hume. More recently a
number of people have offered various forms of conventionalist
justifications for legal rules.73 Conventionalist arguments of this
form are an important part of the common law tradition. The
common lawyers did not justify adherence to precedent simply on
traditionalist grounds. They also insisted, plausibly in at least
some cases, that it was important to have certain matters settled
because the costs of further controversy were too great.74 This

73 Aristotle, The Nichomachean Ethics 1134b18-35 (Harvard 1926) (H. Rackham,

trans); David Hume, A Treatise of Human Nature 489-90 (Oxford 2d ed 1978) (L.A. Selby-
Bigge, ed); David Hume, An Inquiry Concerning the Principles of Morals 125 (Bobbs-
Merrill 1957) (Charles W. Hendel, ed). See also David Gauthier, David Hume,
Contractarian, 88 Phil Rev 3, 22-24 (1979); Postema, Bentham and the Common Law
Tradition at 11043 (cited in note 54). See also the discussions in David K Lewis, Con-

vention: A Philosophical Study 3-4, 36-42 (Harvard 1977); Gerald J. Postema, Coordina-
tion and Convention at the Foundations of Law, 11 J Legal Stud 165, 182-97 (1982).
Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Mean-

ing, 1990 S Ct Rev 231, 253-56, draws the specific connection between conventionalism
and reliance on the language of an authoritative text.

7 For instance, Hale wrote:

[There is] instability, uncertainty and variety in the judgments and opinions of men
touching right and wrong when they come to particulars . . . to avoid that great un-
certainty in the application of reason by particular persons to particular instances;
and the end that men might understand by what rule and measure to live and pos-
sess; and might not be under the unknown arbitrary, uncertain judgment of the un-
certain reason of particular persons, has been the prime reason, that the wiser sort

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1996] Common Law Constitutional Interpretation 909

aspect of the common law approach is sometimes overlooked
when the common law is identified with an encompassing case-
by-case method that emphasizes analogy, context, and “situation
sense.”75 In fact, rules, as well as case-by-case decision making,
are an important part of the common law.76 It may be that con-
ventionalism is a less celebrated aspect of the common law meth-
od than traditionalism because it is-in conception at least-a
more uncontroversial, commonsensical idea. Some people will
viscerally reject traditionalist arguments, but no one denies that,
for some set of issues, it is better to have well settled answers
even if they are less than perfect.

But although conventionalism is important to the common
law and conventionalism itself is a familiar idea, the
conventionalist approach to constitutional interpretation is at
odds with many current understandings. Under the
conventionalist account the text should be followed just because
it is there, so to speak. There is nothing special about the fact
that it was adopted, or the process by which it was adopted, or
the people who adopted it. Adhering to the text of the Constitu-
tion, on this account, “has nothing to do with ancestor wor-
ship.”77

Two analogies may be useful. First, on the conventionalist
account, our practice of adhering to our eighteenth- and nine-

of the world have in all ages agreed upon some certain laws and rules. . . and these
to be as particular and certain as could be well thought of.

Hale, Reflections at 503 (cited in note 41). On Hale’s relationship to the common law tra-
dition, see the discussion in Postema, Bentham and the Common Law Tradition at 77-80
(cited in note 54). For a summary of Hume’s similar views, see F.A. Hayek, The Legal and
Political Philosophy of David Hume (1711-1776), reprinted in W.W. Bartley, III and Ste-
phen Kresge, eds, 3 The Collected Works of F.A. Hayek: The Trend of Economic Thinking:
Essays on Political Economists and Economic History 101, 107-17 (Chicago 1991).

76 This aspect of the common law features prominently, for example, in the criticism
of common law constitutionalism in Bruce Ackerman, The Common Law Constitution of
John Marshall Harlan, 36 NY L Sch L Rev 5, 26-29 (1991).

76 For example, the Statute of Frauds, the Rule in Shelley’s Case, the Rule Against
Perpetuities, and other similar rules are rule-like parts of the common law. Many of the
rules governing estates in land also have the structure of a law. See Richard A. Posner, A
Theory of Negligence, 1 J Legal Stud 29, 52-73 (1972) (surveying courts’ behavior in
railroad collision cases and concluding that, at least in the area in question, “the tendency
of the common law is to become more certain and to precipitate specific rules of conduct
from general principles”). See also Stephen G. Gilles, Rule-Based Negligence and the
Regulation of Activity Levels, 21 J Legal Stud 319 (1992).

77 See Holmes, Passions and Constraint at 10 (cited in note 3) (“[D]emocratic commit-
ment to rules of the game that are difficult to change has nothing to do with ancestor wor-
ship. The present generation accepts some of the decisions of the past because, on bal-
ance, they are good decisions, . . . making present problems easier, not harder, to solve.”).

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910 The University of Chicago Law Review [63:877

teenth-century Constitution is comparable to the reception of
Roman law in Continental Europe. Roman law became the stan-
dard in the late Middle Ages because it was an accessible, widely
known, comprehensive, and basically acceptable set of rules. The
reason Roman law was widely accepted was not that its promul-
gators had a claim to obedience. Nor was the reason that the
provisions of Roman law were the best that could be devised as
an original matter. It was simply that Roman law was a coherent
body of law that was at hand, and its adoption avoided the costly
process of reinvention.78 Conventionalism such as this is not the
whole explanation for why we should obey the Constitution; there
is the traditionalist component too. But it is part of the explana-
tion of why the Constitution should be followed.

The second analogy is to “focal points” in game theory.79 In
a cooperative game with multiple equilibria, the solution will
often depend on social conventions or other psychological facts. A
simple example would be deciding whether traffic should keep to
the left or the right, or who should call back if a telephone call is
disconnected. These are games of pure cooperation, but even
when there is some conflict of interest a “focal point”-a solution
that, for cultural or psychological reasons, is more “salient” and
therefore seems more natural-might be decisive.80 For example,
some disputes in society have roughly the structure of the so-
called “battle of the sexes” game: each side would prefer its own
first choice, but both are willing to give up their own first choices
if necessary to avoid conflict.8″ Similarly, in many disputes in
society, although each faction has a different preferred outcome,

78 On the reception of Roman law in Europe, see Paul Vinogradoff, Roman Law in
Medieval Europe (Barnes & Noble 1968); Harold J. Berman, Law and Revolution: The
Formation of the Western Legal Tradition especially ch 3 (Harvard 1983).

7 The classic discussion of focal points is Thomas C. Schelling, The Strategy of Con-
flict 58-80 (Oxford 1969). See also Eric Rasmusen, Games and Information: An Introduc-
tion to Game Theory 34-37 (Basil Blackwell 1989); David M. Kreps, Game Theory and
Economic Modelling 170-74 (Clarendon 1990); Douglas G. Baird, Robert H. Gertner, and
Randal C. Picker, Game Theory and the Law 39-46 (Harvard 1994).

‘ See, for example, Schelling, Strategy of Conflict at 57-58 (cited in note 79); Lewis,
Convention at 35-38 (cited in note 73); Kreps, Game Theory and Economic Modelling at
34-35, 101-02, 172-74 (cited in note 79); Rasmusen, Games and Information at 35 (cited in

note 79). Gauthier says that Hume invoked this notion of salience in his account of legal
rules. See Gauthier, 88 Phil Rev at 23-24 (cited in note 73).

81 In the traditional statement of the “battle of the sexes” game, A wants to go to the
ballet; B wants to go to a boxing match; but each would prefer to sacrifice his or her
preference in order to be with the other. The game apparently originated in R. Duncan
Luce and Howard Raiffa, Games and Decisions: introduction and critical survey 90-94
(Wiley 1967).

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1996] Common Law Constitutional Interpretation 911

all might prefer an expeditious resolution to prolonged conflict.82
The outcome of such a game can be determined by social conven-
tions that may make one solution stand out as more natural or
appropriate.83 On the conventionalist account, the Constitution
is a focal point of this kind: our culture has given it a salience
that makes it the natural choice when cooperation is valuable.
But its salience and general acceptability, rather than its author-
ity or optimality, are the most important reasons for accepting it.

Conventionalism, understood in this way-as an allegiance
to the text of the Constitution, justified as a way of avoiding
costly and risky disputes and of expressing respect for fellow
citizens-helps explain the deference given to the text more fully
than traditionalism standing alone. We do not “overrule” the text
because any such overruling would jeopardize the ability of the
text to serve as a generally accepted focal point. Once one textual
provision was explicitly disregarded, others could be disregarded
too, and the benefits of having a focus of agreement-imperfect
but “there” and “good enough”-would be diminished. Conven-
tionalism thus accounts for a prominent feature of our practices
and provides the rest of the answer to the question of why we
adhere to the text of the Constitution.

2. Conventionalism and interpretation.

It may seem that this account of conventionalism assumes
that the “text alone” provides answers to a significant range of
constitutional issues. In fact the opposite is more nearly true. A
conventionalist account not only accepts the need to interpret the
text but gives relatively specific guidance about how to interpret
the text. In any event, of course, the claim is not about the “text
alone” at all, if that means the text read in isolation from any
background understandings or presuppositions. Whatever guid-
ance the text of the Constitution (or any other text) gives, it gives
because of a complicated set of background understandings
shared in the culture (both the legal culture and the popular cul-
ture).8′ The premise of conventionalism is only that the text,

‘ Of course the game only roughly models the social controversy; among other
things, in the game there is no communication. Still, the rough parallel seems illuminat-
ing.

9 See, for example, the argument in Kreps, Game Theory and Economic Modelling at
102, 143-44 (cited in note 79).

4 In the literature on interpretation generally this point is common ground among
widely divergent views. Compare, for example, Hans-Georg Gadamer, Truth and Method
284 (Seabury 1975), with E.D. Hirsch, Jr., Validity in Interpretation 4-5, 87-88 (Yale

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912 The University of Chicago Law Review [63:877

combined with a set of generally accepted background assump-
tions (that are difficult to specify but need not be specified for
current purposes), occasionally provides answers and more often
limits the set of acceptable answers.

That is, conventionalism does not presuppose that the Con-
stitution provides specific answers to a wide range of questions.
It only presupposes that the Constitution (interpreted according
to various background understandings) says something signifi-
cant. In some instances, such as age limits, what it says is rela-
tively precise. But even when the text is not precise, it still
serves to limit the range of disagreement.85 For example, people
disagree greatly over how to treat criminal defendants, and the
text of the Constitution leaves many questions unanswered. But
the text still narrows the range of disagreement. There are
significant benefits in using the provisions of the Constitution as
a starting point-however imperfect they are from everyone’s
point of view-and great potential costs in starting from scratch.
Even when the constitutional provisions are quite open-ended, as
in the case of the Religion Clauses for example, having the text
of the clauses as the shared starting point at least narrows the
range of disagreement, and is valuable for that reason. So even
when the text does not come close to providing an answer, con-
ventionalism still explains why the text is a shared starting
point.

This is how conventionalism can guide the interpretation of
the text. Conventionalism suggests that, other things equal, the
text should be interpreted in the way best calculated to provide a
focal point of agreement and to avoid the costs of reopening every
question. In a sense there is nothing “inherent” in the text, what-
ever that might mean, that tells us that the President’s “Term of
four Years” means four years on the Gregorian calendar. But
interpreting it that way is most likely to settle the issue once and
for all without further controversy. The same is true when the
text only narrows the range of disagreement instead of specifying
an answer. The reason we do not engage in fancy forms of in-
terpretation that would permit us to question the length of the

1967). For a discussion of this point in the legal context, see, for example, Cass R.
Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 113-17 (Harvard
1990); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-
Based Decision-Making in Law and Life 38-76 (Oxford 1991).

M See, for example, Fallon, 100 Harv L Rev at 1196 (cited in note 5); Frederick
Schauer, An Essay on Constitutional Language, 29 UCLA L Rev 797, 802-12, 824-31
(1982).

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1996] Common Law Constitutional Interpretation 913

President’s term, or the citizenship qualification, or other “textu-
al” resolutions of issues, is not because we have an obligation to
be faithful to the Framers’ decisions as revealed by the text. We
break faith with the Framers (if that is the right term) on issues
that are far more important. Rather, it is because the leading
function of the text is to provide a ready-made solution that is
acceptable to everyone. That function would be subverted by
interpretations of the text that struck most people as contrived.

3. Why the text?

The conventionalist justification need not be limited to ad-
herence to the text. There are familiar conventionalist arguments
for adhering to precedent: the precedent may be wrong, but it is
established, and it is not worth the cost and risk of reopening the
issue.86 As I said, conventionalism of this form is prominent in
the common law tradition. The adherence to precedent in consti-
tutional law rests on conventionalist grounds as well as tradi-
tionalist grounds: the demands of stare decisis exceed the
Burkean justification. That is, often it will be an exaggeration to
say that a prior decision represents the kind of time-tested judg-
ment that should be honored out of humility and a sense of one’s
own limitations. Rather, the practice of following precedent is a
focal point. Everyone can agree, relatively easily, that precedent
should generally be followed, and potentially disruptive disagree-
ments on the underlying substantive issues can then be bracket-
ed.

Undoubtedly the adherence to the Framers’ original inten-
tions is, in part, conventionalist, for the same reasons that con-
ventionalism explains adherence to the text. Some practices that
have grown up without clear textual warrant-such as judicial
review itself-can claim a conventionalist, as well as a tradition-
alist, justification. Judicial review might be the best system for
our society, but our acceptance of it outruns our belief that it is
theoretically best: we are much more certain that we are going to
retain judicial review than we are that it is the best system. One

86 Hume gives this conventionalist justification for precedent. See Hume, An Inquiry
Concemning the Principles of Morals at 125 (cited in note 73) (“When natural reason [ I
points out no fixed view of public utility by which a controversy of property can be decid-
ed, positive laws are often framed to supply its place and direct the procedure of all courts
of judicature. Where these two fail, as often happens, precedents are called for; and a
former decision, though given itself without any sufficient reason, justly becomes a suffi-
cient reason for a new decision.”).

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914 The University of Chicago Law Review [63:877

reason is that it works well enough, and it would be too costly
and risky to reopen the question whether, abstractly considered,
it is the best possible arrangement.

It might be objected, however, that conventionalism does not
fully explain the status of the text, which was the deficiency in
the traditionalist account that conventionalism was supposed to
remedy. In a particular instance, we might think that the range
of solutions consistent with the text is not good enough-that is,
that the gains from deviating from the text would outweigh the
losses. On a conventionalist account, it might be said, we should
unapologetically reject the text in such a case. But it is not part
of our practice to reject the text in such an explicit way. Why
does our overlapping consensus seem to have settled so heavily
on the text? The answer to this important question is multifac-
eted, but two things seem especially important. One is the
specific way in which the Constitution was drafted; the other is
the special status that the Constitution has in the American
political culture.

One reason we do not explicitly disavow the text may be that
the text seldom forces truly unacceptable actions on us. This is
where the “genius” of the Constitution-that it consists of provi-
sions that are sufficiently broad and flexible, yet not vacu-
ous-becomes manifest. Many of the provisions are worded in
terms broad enough to permit a course that we think is morally
acceptable. We therefore seldom have strong reasons to reject the
text overtly; instead we can reinterpret it, within the boundaries
of ordinary linguistic understandings, to reach a morally accept-
able conclusion. At the same time, the costs of disavowing the
text, in terms of the ability of the text to serve as a focal point,
are likely to be great. It is valuable to society that people who
disagree sharply on important issues can have, as common
ground, an acceptance of the text. Again there is perhaps an
analogy to Roman law. Roman law provided a framework for
resolving concrete legal disputes; but it was sufficiently open-
ended that different societies could adapt it in different ways,
without losing the advantages of having a ready-made, good-
enough body of law that reduced the need to reopen issues and
revisit first principles.

The text of the Constitution-interpreted, as always, in the
way I described before, according to certain background assump-
tions-is far from wholly manipulable. As a result, the common
ground it establishes is more than nominal. On all but very im-
portant issues, if you can make a good textual argument to me, I

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1996] Common Law Constitutional Interpretation 915

will accede, even if the result seems morally wrong to me. That
maintains stability and bonds of mutual respect as well as a
culture in which disputes are resolved by appeals to common
premises.

At the same time, the acceptance of the Constitution is not
the product strictly of calculation, or of an entirely rational pro-
cess. At first glance conventionalism might seem to be an overly
rationalistic explanation that drains notions of national identity
and heritage from constitutional interpretation and denies that
the Constitution should be revered or accorded a scriptural sta-
tus. In fact, on a conventionalist account, it is not that the Con-
stitution is important just because of a rational calculation; rath-
er, the calculations come out as they do because of the cultural
importance of the Constitution. For a variety of complex rea-
sons-rooted in patriotic impulses and narratives, in American
exceptionalism, in Protestantism,87 and in other sources of na-
tional culture-the Constitution has been a central unifying sym-
bol for Americans.88 That is why the Constitution, and not some
other document or source of law, can serve so well as the focal
point of agreement. This is one way to understand Madison’s
famous answer, in Federalist 49, to Jefferson’s suggestions that
constitutions should be easy to change:

[Als every appeal to the people would carry an implication of
some defect in the government, frequent appeals would, in
great measure, deprive the government of that veneration
which time bestows on everything, and without which per-
haps the wisest and freest governments would not possess
the requisite stability. If it be true that all governments rest
on opinion, it is no less true that the strength of opinion in
each individual, and its practical influence on his conduct,
depend much on the number which he supposes to have
entertained the same opinion…. When the examples which
fortify opinion are ancient as well as numerous, they are
known to have a double effect…. [Tihe most rational gov-

87 See, for example, Sanford Levinson, Constitutional Faith 11-12 (Princeton 1988); H.
Jefferson Powell, The Original Understanding of Original Intent, 98 Harv L Rev 885, 889-
94 (1985).

‘ See, for example, Michael Kammen, A Machine that Would Go of Itself The Consti-
tution in American Culture (Knopf 1986); Levinson, Constitutional Faith at 11-17 (cited in
note 87); Max Lerner, Constitution and Court as Symbols, 46 Yale L J 1290 (1937). See
also Monaghan, 56 NYU L Rev at 356 (cited in note 14) (“The practice of ‘constitution
worship’ has been quite solidly ingrained in our political culture from the beginning of our
constitutional history.”).

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916 The University of Chicago Law Review [63:877

erinent will not find it a superfluous advantage to have the
prejudices of the community on its side.89

Societies hold together not just by virtue of rational calcula-
tion but also because of shared symbols, and there is little doubt
that the Constitution is such a symbol for the United States. It is
because of this special status of the Constitution that its text has
become the focal point of agreement.90

B. Conventionalism and the Puzzles of Constitutional
Interpretation

The principal argument for conventionalism is that it an-
swers the last bit of Noah Webster’s question left unanswered by
traditionalist arguments: why we treat the text as sacrosanct. In
addition, however, conventionalism sheds light on some other
puzzling aspects of our practices-practices that, under compet-
ing theories of constitutional interpretation, seem hard to justify.

1. The text matters most for the least important questions.

That the text matters most for the least important questions
is a relatively little noticed but persistent, and puzzling, aspect of
our practices. The common law approach I have outlined explains
it; other approaches seem very difficult to reconcile with it. For
the most part we interpret the Constitution formalistically in just
the circumstances that conventionalism would predict-when the
stakes are relatively low but it is important that a matter be
settled one way or another. Under the usual textualist or
originalist understandings, this seems backward. If the text is
important because of the authority of those who adopted it, then
it should be more important when the issues are more important.
But that is not our practice. Our practice is more consistent with
conventionalism.

e Federalist 49 (Madison), in Rossiter, ed, Federalist Papers at 314-15 (cited in note
29).

9 Incidentally this may also justify classifying the agreement on the Constitution as
something akin to an overlapping consensus, as distinguished from a modus vivendi.
People are loyal, not just to liberal principles (as Rawls describes), but to specific national
institutions (such as a particular form of democratic government, and perhaps even a par-

ticular governing text). They follow these particular institutional forms not because it is
the best that can be done under the circumstances (that would be a modus vivendi) but
because of a belief in the institutions that derives from their own moral views. That is,
the explanation of why these institutions are a focal point is perhaps richer and more in-
teresting than the rationalistic game theoretic account suggests.

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1996] Common Law Constitutional Interpretation 917

The most striking example is the separation of powers. In
the last decade or so there has been much litigation about the
allocation of power between the executive and Congress. Much of
the resulting law is notoriously formalistic, in the sense that the
courts (as well as the broader legal and even popular cultures)
emphasize the text and the original understanding far more in
these cases than they do in addressing issues like equality and
reproductive freedom.9″

Sometimes it is suggested that the reason for this is that
separation of powers is in the end more important than the guar-
antees of rights.92 But that argument seems forced and overstat-
ed. Certain aspects of the separation of powers, such as an inde-
pendent judiciary and the requirement that the executive follow
the law, are of the first importance. But many controversial sepa-
ration of powers issues concern matters about which well gov-
erned democratic societies might differ, such as the legislative
veto and the question of who shall appoint which officials.93
Those are the issues that we resolve formalistically. And the
reason for formalism in dealing with separation of powers is
precisely that specific separation of powers issues are, relatively
speaking, often not particularly charged, as a matter of morality
or public policy. Few people have passionate convictions about
whether the legislative veto is good or bad for society, or about
which classes of officials the President must appoint. In fact few
people (if they thought about the issue as an original matter)
would be certain that our society would be, on balance, much
worse off even if we made much more dramatic changes in the al-
location of power between Congress and the President-perhaps
even if we had a parliamentary system.

9′ See, for example, Freytag v Commissioner of Internal Revenue, 501 US 868 (1991);
Bowsher v Synar, 478 US 714 (1986); INS v Chadha, 462 US 919 (1983); Buckley v Valeo,
424 US 1 (1976). This point has been made by Rebecca L. Brown, Separated Powers and
Ordered Liberty, 139 U Pa L Rev 1513 (1991), and Peter L. Strauss, Formal and Function-
al Approaches to Separation-of-Powers Questions-A Foolish Inconsistency?, 72 Cornell L
Rev 488 (1987).

9 Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation
of Powers, 17 Suffolk U L Rev 881, 894-97 (1983).

93 Sometimes, of course, questions arising under the Appointments Clause might be
of considerable significance, especially when they concern the power to discharge officials.
But so far, in its formalistic decisions, the Supreme Court has confined itself to relatively
insignificant applications. See, for example, Freytag, 501 US at 880-92; Bowsher, 478 US
at 722-27; Buckley, 424 US at 109-43. In fact one might question whether the Court will
continue on the course set by its formalistic decisions if the stakes in future cases are
higher. The conventionalist approach suggests that the Court would not. (I am grateful to
Peter Strauss for clarification on this point.)

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918 The University of Chicago Law Review [63:877

Issues of equality and reproductive freedom, by contrast,
elicit strong reactions. In these contexts, people are less likely to
accept a solution just for the sake of having the matter resolved
with minimal friction. They are willing to live with controversy
as the price of trying to resolve the issue in the way they think is
right. They are therefore much more likely to force the issue by
directly addressing the moral rights and wrongs. But in dealing
with separation of powers issues it is more important that the
issue be settled than that it be settled just right-so that we
know which acts are valid, which political actor must make
which decision, and so on. Consequently our practices are more
formalistic. That is what conventionalism predicts, and that is
our practice. The more important the provision, the less formal-
istic its interpretation.94

9 See, in this connection, the discussion in Monaghan, 56 NYU L Rev at 361-63

(cited in note 14) (summarizing the “two-clause theory” and acknowledging that “[it pro-
vides at least a general account of what the supreme court has been doing”). Justice
Frankfurter made a similar point in his opinions in United States v Lovett, 328 US 303,
321 (1946) (concurring), and National Mutual Insurance Co. v Tidewater Transfer Co., 337

US 582, 646-47 (1949) (dissenting).
In dissent in National Mutual, Justice Frankfurrter stated:

No provisions of the Constitution, barring only those that draw on arithmetic, as in
prescribing the qualifying age for a President and members of a Congress or the
length of their tenure of office, are more explicit and specific than those pertaining to

courts established under Article III…. The precision which characterizes these
portions of Article III is in striking contrast to the imprecision of so many other pro-
visions of the Constitution dealing with other very vital aspects of government. This
was not due to chance or ineptitude on the part of the Framers. The differences in
subject-matter account for the drastic differences in treatment. Great concepts like

“Commerce … among the several States,” “due process of law,” “liberty,” “property”
were purposely left to gather meaning from experience. For they relate to the whole

domain of social and economic fact, and the statesmen who founded this Nation knew
too well that only a stagnant society remains unchanged. But when the Constitution
in turn gives strict definition of power or specific limitations upon it we cannot ex-

tend the definition or remove the limitation. Precisely because “it is a constitution we

are expounding,” [citing McCulloch] we ought not to take liberties with it.

337 US at 64647.
This discussion is notable because the interpretation of Article III has not proven to

be governed by the text to the extent that Justice Frankfiurter urged (his opinion was,
after all, a dissent). See, for example, Commodity Futures Trading Commission v Schor,
478 US 833 (1986); Thomas v Union Carbide Agricultural Products Co., 473 US 568
(1985); Crowell v Benson, 285 US 22 (1932). That is because questions about the scope
and limits on federal judicial power also “relate to the whole domain of social and econom-
ic fact” and must “gather meaning from experience.” But the general point-that the spe-
cific provisions of the Constitution are interpreted in a more formalistic way than the
more general provisions, the meaning of which should evolve over time-has to a signifi-
cant degree been borne out in the way separation of powers law has developed.

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1996] Common Law Constitutional Interpretation 919

There are, of course, important provisions that are interpret-
ed formalistically. The provision that each state have two Sena-
tors is an example, although in times of the greatest stress, such
as Reconstruction, this provision was disregarded. Although this
is an important provision, the reason for adhering to it remains
conventionalist. It is a clear provision, and any violation of it
would be highly salient. Consequently, violating it would greatly
increase the risk that the valuable consensus on the text will
dissolve generally, increasing the potential for disruption and for
outcomes that are, even to those who dislike the textual solution,
worse still.

2. The relative importance of text and intentions.

Conventionalism also explains what would otherwise be a
very puzzling feature of constitutional interpretation-our will-
ingness to depart from the intentions of the Framers much more
dramatically than we would depart from the text. Originalism
(defined as strict adherence to the specific intentions of the
drafters of the Constitution) is subject to a variety of well known
objections.95 Even its purported adherents accept many depar-
tures from what originalism would dictate.96

But adherence to the text differs only in degree from adher-
ence to the Framers’ specific intentions. If we accept the judg-
ments unequivocally reflected in the text, why should we not
accept the other judgments the drafters thought they were adopt-
ing? Yet judgments reflected in the text are accepted almost cate-
gorically, in the sense that one can never simply disregard the
text, while the understandings the drafters had when they adopt-
ed the text are accepted much less frequently.

One especially dramatic illustration of this paradox is that in
some areas, the law has developed in a way that can be squared
fairly easily with the text but is plainly at odds with the
Framers’ intentions. The interpretation of the right to counsel in
the Sixth Amendment is an example. The Sixth Amendment
gives a criminal defendant the right “to have the assistance of
counsel for his defence.”97 There is little doubt that the original

” See, for example, the discussions in Daniel A. Farber, The Originalism Debate: A
Guide for the Perplexed, 49 Ohio St L J 1085 (1989); Brest, 60 BU L Rev 204 (cited in note

4).
” See, for example, the qualifications in Bork, Tempting of America at 161-85 (cited

in note 1), and Scalia, 57 U Cin L Rev at 856-57, 861-62 (cited in note 25).
” US Const, Amend VI.

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920 The University of Chicago Law Review [63:877

understanding of this provision was that the govermnent may not
forbid a defendant from having the assistance of retained coun-
sel.98 Today, of course, Gideon v Wainwright99 and subsequent
decisions have established that in serious criminal prosecutions
the government must provide counsel even for defendants who
cannot afford it. That rule fits comfortably with the language,
and the language has been used to support it.

But in fact it is just a coincidence almost a matter of
homonymy-that the modern right to counsel is supported by the
language of the Sixth Amendment. The drafters of the Sixth
Amendment might have used some other language to express
their intentions, language that would have made it more difficult
to find support for the modern right (for example, that the ac-
cused shall have the right “to retain counsel for his defense”l).1Y?
At first glance it seems odd to use the language of the Sixth
Amendment to support Gideon when it is only a coincidence that
it does so.

Originalist views of the Constitution seem quite unable to
account for this aspect of our practice. But conventionalism can.
It is important to show that Gideon is consistent with the text
because that helps preserve the overlapping consensus. So long
as a judge can show that her interpretation of the Constitution
can be reconciled with some plausible ordinary meaning of the
text-so long as she can plausibly say that she, too, honors the
text-she has maintained some common ground with her fellow
citizens who might disagree vehemently about the morality or
prudence of her decision. But once a judge or other actor asserts
the power to act in ways inconsistent with the text, the overlap-
ping consensus is weakened. If there is one unequivocal depar-
ture from the text, there can be others. Society’s ability to use
the text as common ground-to provide a basis of agreement or a
limit on disagreement-will be eroded. That is why the text must
be preserved, even though the Framers’ intentions need not be.

There are other examples, less clear-cut than Gideon, of this
aspect of our practice. The Establishment Clause is interpreted to
forbid state establishments, although both the text and the origi-

9 See William M. Beaney, The Right to Counsel in American Courts 8-33 (Greenwood
1955); Bute v Illinois, 333 US 640, 660-66 (1948).

9 372 US 335 (1963).

” See, for example, Md Declaration of Rights, Art 21 (“to be allowed counsel”); NH
Const, Part First, Art 15 (“to be fully heard in his defense, by himself, and counsel”); SC
Const, Art 1, ? 14 (“to be fully heard in his defense by himself or by his counsel or by
both”).

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19961 Common Law Constitutional Interpretation 921

nal understanding say something more like the opposite (that
Congress was forbidden from prohibiting state estab-
lishments).”‘1 The Warrant Clause is taken to require warrants,
although it says nothing of the kind. The Equal Protection
Clause is treated as a general constitutional injunction of “equali-
ty,” despite the narrower wording and fairly clear evidence that
the original understanding of the clause was different.’02 Of
course, some of these interpretations may be incorrect (although
they all seem well established). The point is that these interpre-
tations gain strength from the presence, in the text, of some
words that support them-even though the original understand-
ing of the words is at odds with that interpretation. The question
is why this significant aspect of our practices is not a weird form
of verbal fetishism. The answer is that the words themselves
provide a focal point, something on which people can agree, what-
ever their moral or policy disagreements.

Perhaps the most impressive example of this aspect of our
practices is the application of the Bill of Rights to the states
through the Fourteenth Amendment, the so-called incorporation
doctrine. The Bill of Rights originally applied only to the federal
government. In a series of decisions, mostly in the 1960s, the
Supreme Court applied to the states essentially all of the provi-
sions of the Bill of Rights that protect criminal defendants. The
effect was to bring about a large-scale reform of the criminal
justice systems of the states. These decisions were the culmina-
tion of a protracted argument, mostly between Justices Black and
Frankfurer (and their respective followers outside the Court),
over the appropriateness of incorporation.103

Three things seem clear about the incorporation issue. First,
it went from being a subject of intense controversy-probably the
most controversial issue in constitutional law between the mid-
1940s and mid-1950s, and one of the most controversial for a
decade or more thereafter-to being a completely settled issue.

101 Wallace v Jaffree, 472 US 38, 91-99 (1985) (Rehnquist dissenting); Robert L. Cord,
Separation of Church and State: Historical Fact and Current Fiction 14-15 (Lambeth
1982).

“‘s See David P. Currie, The Constitution in the Supreme Court: The First Hundred
Years, 1789-1888 342-51 (Chicago 1985); John Harrison, Reconstructing the Privileges or

Immunities Clause, 101 Yale L J 1385, 1433-51 (1992). Harrison concludes that “during
Reconstruction the interpretation of the Equal Protection Clause that is today accepted
had a competitor which limited the clause to the protective functions of government,” and
that this view was “widespread among Republicans.” Id at 1438, 1440.

103 See, for example, Adamson v California, 332 US 46, 59 (1946) (Frankfurter concur-
ring); id at 68 (Black dissenting).

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922 The University of Chicago Law Review [63:877

The incorporation controversy involved the most divisive mat-
ters-criminal justice, federalism, and, implicitly, race. But by
the mid-1980s, even the most severe critics of the Warren Court
accepted incorporation, and some of them aggressively embraced
it.104

Second, incorporation came to be a settled issue even though
it was not widely accepted that incorporation was consistent with
the intentions of the Framers of the Fourteenth Amendment.
During the time that incorporation took hold in the legal culture,
the received wisdom was that the Framers of the Fourteenth
Amendment did not intend incorporation.105 We now recognize
that that received wisdom was at least too simple. But what the
incorporation controversy and its denouement reveal about our
practices is that-so far as the acceptance of incorporation in the
legal culture is concerned-the Framers’ intentions were essen-
tially beside the point.

Third, and most striking, despite the fact that there are
certain notorious textual difficulties with incorporation,106 the
widespread acceptance of incorporation has something to do with
its use of the text. It helped enormously that the Court was re-
forming state criminal justice systems on the basis of conceptions
that had some link to the text of the Bill of Rights. It seems very
unlikely that incorporation would have succeeded in the way it
did if the Court-instead of invoking the text of the Bill of Rights
to aid its campaign to reform state criminal justice systems-had
simply devised a new set of rules for the states to follow, however
sensible those rules might have been.

Since there is no general belief that the Framers (of either
the Bill of Rights or the Fourteenth Amendment) contemplated
that the text would be viewed in this way, and since the text
itself doesn’t immediately lend itself to that interpretation, why
should the textual basis of incorporation matter so much? If we

104 See, for example, Bork, Tempting of America at 94 (cited in note 1) (“[A]s a matter
of judicial practice the issue is settled.”); Albright v Oliver, 114 US 807, 814 (1994) (Scalia
concurring) (‘[Incorporation is] an extension I accept because it is both long established
and narrowly limited.”).

105 See, for example, Alexander M. Bickel, The Least Dangerous Branch: The Supreme
Court at the Bar of Politics 101-02 (Yale 1986) (observing that the “weight of opinion
among disinterested observers” is against a historical basis for incorporation). See also the
discussion of this consensus in Amar, 100 Yale L J 1131 (cited in note 2) (attacking the
consensus).

106 For example, incorporation makes the Due Process Clause of the Fourteenth
Amendment redundant, since the incorporated Fifth Amendment already contains a Due
Process Clause.

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1996] Common Law Constitutional Interpretation 923

don’t care about what the Framers thought they were doing, why
do we care so much about the words they wrote? Conventional-
ism provides an answer to this question. By tying reforms of
state criminal justice systems to the text of the Bill of Rights, the
incorporation doctrine invoked the overlapping consensus. That
is, in the face of widespread disagreement about criminal justice,
the Court could take advantage of the fact that everyone thinks
the words of the Constitution should count for something. The
link to the text legitimated incorporation by connecting it to
something everyone believed in. People who might have dis-
agreed vigorously about the merits of various reforms of the crim-
inal justice system could all treat the specific rights acknowl-
edged in the Bill of Rights as common ground that would limit
the scope of their disagreement. A reform program that had a
plausible connection to the text of the Bill of Rights was therefore
more likely to be accepted than one that did not.

It is in this sense that incorporation is “consistent with the
Constitution” in a way that a nontextual program of criminal law
reform would not be. The point is not that the Framers, or “we
the people,” commanded the reforms that the Court undertook.
The Court undertook those reforms, and the reforms lasted, be-
cause they made moral and practical sense, and because, by
virtue of their connection to the text, society could reach agree-
ment (or at least narrow the range of disagreement) on a legal
outcome even in the face of deep moral disagreement. That is
why the text matters even if the Framers’ intentions were to the
contrary.

3. Formalism and new written constitutions.

It is customary, especially in this country, to distinguish
between written and unwritten constitutions. Perhaps that is
because it was important to the Framers of our Constitution that
it was written, unlike Britain’s.’07 But there is something unre-
alistic about supposing that today there is a great difference
between written American constitutionalism and unwritten Brit-
ish constitutionalism. There are differences, of course, but they
seem minimal when compared to the differences among nations
with written constitutions-not just between, say, the United
States and the nations of Eastern Europe, but also between the

107 See, for example, Wood, Creation of the American Republic, 1776-1787 at 259-305
(cited in note 3).

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924 The University of Chicago Law Review [63:877

United States and even postwar Western European nations with
new written constitutions, especially in the earlier years of those
constitutions. Intuitively (and to most nonlawyers obviously) the
important distinction is between nations that have well estab-
lished liberal traditions and those that do not. That distinction
does not track the one between written and unwritten constitu-
tions.

Conventionalism helps account for this intuition, undermin-
ing the distinction between written and unwritten constitutions.
When a nation does not have well established traditions, the
words of its constitution are correspondingly more important in
providing something on which people can agree. When a nation is
just starting, it is important for political actors to be able to point
to the text of the constitution to justify their actions. Creative
interpretations of that text will breed distrust and make it more
likely that whatever consensus exists will dissipate. Once people
think that their political opponents are playing fast and loose
with the text, all consensus is more likely to break down because
there is so little to fall back on. Only by staying very close to the
text-being as formalistic as possible-can political actors in an
immature regime convince others that they are acting in good
faith. By contrast, once a society develops political traditions,
political actors can be more confident that their opponents, even
if arguably departing from the text, will operate within the tradi-
tions, or will be reined in by other forces in society if they do not
do so. In both Britain and the United States, the traditions and
precedents are the dominant features of constitutional law, even
though the United States has a text; in less mature societies, any
written text will be more important.

We should, therefore, expect to find more formalism, and
more emphasis on the “writtenness” of constitutions, in new
constitutional regimes. This may explain why the written charac-
ter of the American Constitution was so important to the Fram-
ers: with its traditions discarded, or in an uncertain state, the
society was held together, to a greater degree than today, by its
Constitution. But the longer a constitutional regime endures, the
more it develops constitutional traditions, and the more stable
the patterns of cooperation become in society. The text becomes
less important, and the distinction between written and unwrit-
ten constitutions blurs. Therefore the fact that the Framers at-
tached so much importance to the written character of our Con-
stitution, as distinguished from the British constitution, does not
mean that we should do so today.

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19961 Common Law Constitutional Interpretation 925

IV. JUDICiAL RESTRAINT AND DEMOCRACY

Judges are not the only ones who interpret a constitution, of
course. One virtue of common law constitutionalism is that de-
spite initial appearances, it is not tied to judicial interpreta-
tion.108 To the contrary, the common law can serve as a model
for incremental change in society as a whole, as it did for Burke.
As I suggested earlier, legislators and even ordinary citizens, in
their encounters with the Constitution, act in ways consistent
with the common law approach. In particular, glosses on the
Constitution (by judicial decision and otherwise), when validated
by tradition, operate in public discourse on a par with the specific
provisions of the Constitution. In this respect, common law con-
stitutional interpretation is actually less vulnerable than some of
its competitors to the criticism that it is court centered. Certain
justifications for originalism and textualism emphasize the need
to limit judges’ discretion and prevent abuses. But the common
law approach does not necessarily link constitutional interpreta-
tion to particular capacities of judges and courts.

Nonetheless, any approach to constitutional interpretation
must explain how it restrains the officials responsible for imple-
menting the Constitution and prevents them from imposing their
own will. A theory of constitutional interpretation for our society
also ought to be able to explain how the institution of judicial
review-judicial enforcement of the Constitution against the acts
of popularly elected bodies-can be reconciled with democracy. It
might be argued, in particular, that a theory of common law
constitutional interpretation overlooks the crucial difference that
common law judges can be overruled by the legislature but judg-
es interpreting a constitution ordinarily cannot.109

Neither the concern with judicial restraint nor the concern
with democracy, however, undermines the justification of com-
mon law constitutionalism. If anything, with respect to both

108 In addition, a common law approach is more consistent with the fact that the lower
courts, federal and state-not just the Supreme Court-are centrally involved in constitu-
tional interpretation. Those courts are, as a practical matter, the courts of last resort for
most citizens. But for those courts, constitutional law consists almost exclusively of
Supreme Court precedent. The intent of the Framers, and even the text, are of very
limited importance to their work. See, for this important point, Sanford Levinson, On
Positivism and Potted Plants: ‘Inferior” Judges and the Task of Constitutional Interpreta-
tion, 25 Conn L Rev 843 (1993).

109 See, for example, Ackerman, 36 NY L Sch L Rev at 29-32 (cited in note 75); Rich-
ard H. Fallon, Jr., Common Law Court or Council of Revision?, 101 Yale L J 949, 961
(1992) (“How much like a common law court could a Court with such nearly ultimate
powers be?”); Monaghan, 56 NYU L Rev at 355-58 (cited in note 14).

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926 The University of Chicago Law Review [63:877

concerns, common law constitutionalism is superior to its compet-
itors.

A. Judicial Restraint

Textualism and originalism are sometimes defended as the
best way of restraining judges and preventing them from abusing
their authority.-” On the surface this may seem to be at least a
plausible claim. But on closer examination I believe that it owes
all of its plausibility to the unspoken assumption that some ver-
sion of the common law approach to constitutional interpretation
is operating in the background.

A judge who conscientiously tries to follow precedent is sig-
nificantly limited in what she can do. But a judge who acknowl-
edges only the text of the Constitution as a limit can, so to speak,
go to town. The text of the Equal Protection Clause, taken alone,
would allow a judge to rule that the Constitution requires mas-
sive redistributions of wealth (reasoning that “equal protection of
the laws” includes “equal protection” against the vicissitudes of
the market); the text of the Contract and Just Compensation
Clauses, taken alone, would allow a judge to invalidate a wide
range of welfare and regulatory legislation.”‘ The text of the
Due Process and Cruel and Unusual Punishment Clauses, taken
alone without reference to the precedents interpreting them,
could justify a thorough overhaul of the criminal justice system.
And so on.

The notion that the text of the Constitution is an effective
limit on judges is plausible only if one assumes a background of
highly developed precedent. Within the limits set by precedent,
paying more attention to text might indeed limit judges’ discre-
tion. The appeal of textualism as a limit on judges-as the argu-
ment was made, most famously for example, by Justice
Black”2-stems entirely from the assumption that the text will
be used to resolve disputes within the gaps left by precedent. If
we assume that the various clauses of the Constitution are to be
interpreted in something like the current fashion, then judges
may indeed be more “restrained” if they insist on some relatively
explicit textual source for any constitutional right. But that is

110 See, for example, Scalia, 57 U Cin L Rev at 862-64 (cited in note 25); Bork, Tempt-
ing of America at 146-47 (cited in note 1).

… As is argued in Richard A. Epstein, Takings: Private Property and the Power of
Eminent Domain 327-29 (Harvard 1985).

112 See note 1.

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1996] Common Law Constitutional Interpretation 927

primarily a demonstration of the restraining effect of precedent,
not of text; the bulk of the restraint by far is provided by prece-
dent.

For similar reasons, it is implausible to say that adherence
to the Framers’ intentions, by itself (or together with adherence
to text), limits judges more than precedent. The familiar prob-
lems-uncertainty about who counts as “the Framers,” unclarity
in the historical record (or no relevant record at all), difficulty in
defining the level of generality on which to identify the intention,
changing circumstances”13-all make the historical record a
poor restraint on judges. In fact the strongest advocates of adher-
ence to the Framers’ intentions are often, at the same time, em-
broiled in controversies over what the Framers of particular
provisions actually did intend. The existence of controversy in
applying a method does not invalidate the method, of course, but
it does mean that that method is a less sure way of preventing a
judge from “finding” her own moral or political views in the Con-
stitution.

By contrast, the common law method has a centuries-long
record of restraining judges. Needless to say, precedents can be
treated disingenuously, and judges can abuse the freedom that
the common law approach gives them to make moral judgments
about the way the law should develop. But no system is immune
from abuse. A conscientious judge will find substantial guidance
in a well developed body of precedent, like that interpreting the
Constitution. Judges who might be tempted to overreach, but
who are susceptible to criticism (by others or by themselves), can
be evaluated by fairly well developed standards under the com-
mon law method. None of the competing views seems superior on
this score, and most-including the various forms of
originalism-seem decidedly worse.

Finally, common law constitutionalism has the advantage of
confronting the question of judicial restraint-that is, the ques-
tion of how concerned we should be about the danger that judges
will implement their own moral and political views under the
guise of following the law-more directly and candidly than other
theories do.”4 Under common law constitutionalism, the ten-
sion is between, on the one hand, the demands of tradition and

113 See, for example, Brest, 60 BU L Rev at 229-37 (cited in note 4).
114 For a suggestion that the extent to which judges should be so restrained is perhaps

a more difficult question than has generally been acknowledged, see Frederick Schauer,
The Calculus of Distrust, 77 Va L Rev 653 (1991).

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928 The University of Chicago Law Review [63:877

the need to maintain the text as common ground, and, on the
other hand, the perceived requirements of fairness, justice, and
good policy. By facing that tension, the judge is forced to decide
how restrained she should be. Approaches that emphasize the
text or the Framers’ intentions, by contrast, ordinarily insist on
the supposed absolute priority of the text or the Framers’ inten-
tions over the judge’s moral views. Those approaches have a
tendency to suggest that it is a usurpation for a judge ever to
consider the fairness or justice of the action she is being asked to
take.115 In this way those approaches do not confront the issue
of just how restrained a judge should be. Disputes that in fact
concern matters of morality or policy masquerade as hermeneutic
disputes about the “meaning” of the text, or historians’ disputes
about what the Framers did. By contrast, in common law con-
stitutional interpretation, the difficult questions are on the sur-
face and must be confronted forthrightly.

B. Democracy

A crucial part of the argument for textualist or originalist
approaches is not just that they restrain judges but that they are
more consistent with democracy. The objective of constitutional
interpretation, on these accounts, is to uncover and enforce the
will of “we the people” as expressed in the Constitution. By con-
trast, the argument goes, common law approaches that rely on
precedent exalt the views of “Judge & Co.,” an elite segment of
the population.

So far as the argument from democracy is concerned, the
more simplistic forms of textualism and originalism are, of
course, subject to Noah Webster’s objection. It is difficult to un-
derstand why democracy requires us to enforce decisions made by
people with whom the current population has so little in com-
mon. It is true that the Framers were Americans, and we are
Americans. But it does not follow that adherence to their deci-
sions is democratic self-rule in any remotely recognizable sense.
The originalist notion that the decisions of the eighteenth-centu-
ry Framers somehow reflect the views of a continuous “we the
people” extending since that time is as mystical and implausible
as the most remote reaches of the common law ideology.”16

“1 See text accompanying notes 13-14. See also Harper v Virginia Board of Elections,
383 US 663, 676 (1966) (Black dissenting); Bork, Tempting of America at 251-59 (cited in
note 1).

116 This problem is not cured by allowing “we the people” to amend the Constitution

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1996] Common Law Constitutional Interpretation 929

Neo-Hamiltonian views are less vulnerable to this objection.
According to those views, judges are to enforce the decisions
made by “we the people” at subsequent moments rather than
those reflected in the original constitutional provisions. These
approaches mitigate the objection that the dead hand of the past
is governing the present. And at first glance it might seem that
such views, whatever else one might say about them, are more
suitable for a democratic, self-governing society than a common
law approach. In particular, the common law approach seems
elitist by comparison-a reflection of the guild interest of law-
yers.117

This argument can be answered on several levels. To begin
with, it is not obvious what should count as an appropriately
“democratic” approach to constitutional interpretation. The most
straightforward definition of democracy-rule by a current major-
ity-is obviously not a good basis for constitutional interpreta-
tion. Constitutions are supposed to provide some protection
against the current majority.

In addition, common law constitutionalism is democratic in
an important sense: the principles developed through the com-
mon law method are not likely to stay out of line for long with
views that are widely and durably held in the society. Indeed, by
this standard the common law approach can plausibly claim to be
as democratic as any of its competitors. Consider the most impor-
tant principles that have emerged from constitutional common
law in this century: expansive federal power; expansive presiden-
tial power, particularly in foreign affairs; the current contours of
freedom of expression; the federalization of criminal procedure; a
conception of racial equality that disapproves de jure distinctions
and intentional discrimination; the rule of one person, one vote; a
(somewhat formal) principle of gender equality; and reproductive
freedom protected against criminalization. None of these impor-
tant principles can be said to be rooted in original intent, and
none has particularly strong textual roots. For most of them, it is
hard to identify any “moment” at which a strong popular consen-
sus crystallized behind them.

by some suitable vote. See Akhil Reed Amar, The Consent of the Governed: Constitutional
Amendment Outside Article V, 94 Colum L Rev 457, 499-503 (1994); Akhil Reed Amar,
Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U Chi L Rev 1043
(1988). The question remains why, in the absence of such an extraordinary action by “the
people,” decisions made generations ago should govern.

11 This charge is powerfully presented in Ackerman, 36 NY L Sch L Rev at 5 (cited in
note 75).

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930 The University of Chicago Law Review [63:877

Instead, all of these principles were developed essentially by
common law methods-the evolution of doctrine in response to
the perceived demands of justice and the needs of society. All of
these principles were once highly controversial. But it is plausi-
ble to say that all of them now rest on a broad democratic con-
sensus. They are evidence that the common law approach is at
least broadly consistent with the demands of democracy.

In two ways, the common law approach does seem distinctly
less democratic than neo-Hamiltonian views; but these are not
obviously ways in which the common law approach is deficient.
First, according to the common law approach, judges do not need
to accept changes in popular sentiment, however profound, as
ipso facto authoritative. Longstanding traditions have claims to
acceptance, for Burkean reasons. But a sudden change in popular
opinion, however strongly felt, does not by itself control the inter-
pretation of the Constitution. If the judges are convinced that the
popular sentiments are wrong, they may reject them. The aban-
donment of Reconstruction, and certain of the “national security”
excesses of the Cold War era, may be examples of profound and
long-lasting changes in popular sentiment that judges should
have rejected.”8 Neo-Hamiltonian views, by contrast, would ap-
parently obligate judges to follow genuinely democratic decisions,
even if those decisions were deeply morally wrong.”9 Judges
could of course engage in the equivalent of civil disobedience, but
that raises other issues.

The common law approach is in a sense less democratic in
this respect. The idea behind common law constitutionalism is
that sometimes Burkean incrementalism, implemented by judges,
is a good counterweight to the potential excesses of democracy.
This is, for example, the way the doctrinal protections of freedom
of expression are supposed to function.’20 There are two sides to
this question: there is certainly a danger that judges will resist
justified democratic imperatives for too long. The Lochner era can
be seen in such terms. Ultimately the matter depends in large
measure on an empirical assessment of the propensities of judges
and popular majorities, and the answer will probably differ from
one area of law to another. But simply to insist on the more

118 On the former, see Michael W. McConnell, The Forgotten Constitutional Moment,
11 Const Comm 115 (1994).

119 See Bruce Ackerman, Rooted Cosmopolitanism, 104 Ethics 516 (1994).
120 See Vincent Blasi, The Checking Value in First Amendnent Theory, 1977 Am Bar

Found Res J 521, 53844; Vincent Blasi, The Pathological Perspective and the First
Amendment, 85 Colum L Rev 449, 449-52 (1985).

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1996] Common Law Constitutional Interpretation 931

“democratic” approach across the board-a greater response to
changes in popular opinion-is not necessarily warranted.

The second way in which the common law approach can be
said to be less democratic than the neo-Hamiltonian view is that
judges, on the common law approach, are not limited to purport-
ed shifts in general popular sentiment when they decide whether
the law should change. They may look to the work of previous
judges and lawyers as well, as they did, in this century, in devel-
oping the law of freedom of expression and in taking at least the
first steps toward racial and gender equality. But here again it is
not clear that this is a problem. One of the premises of the neo-
Hamiltonian view is that between constitutional “moments,” the
people are not engaged in constitutional politics. It follows that
no decision made during that time including a decision to ad-
here to the status quo ante-can be fully democratic. Seen in
that light, a common law approach-judicial decisions that de-
part from the status quo by continuing evolutionary trends that
have been generally accepted, even if they have not been ratified
by a “constitutional moment”-may be as democratic a decision
as we can hope for.

Finally, it is fair to say that the common law approach to
constitutional interpretation does give a very prominent role to
characteristic lawyers’ methods of reasoning and to the profes-
sional training of lawyers. The elite and guild tenor of the com-
mon law ideologists was unmistakable. The ancient truths of the
common law, they held, were accessible only to those with the
proper (legal) training, not to kings, much less to hoi polloi.”‘
But in this sense all interpretive methods-originalism, text-
ualism, neo-Hamiltonianism, and legal process approaches-are
elitist. They all require specialized capacities that only certain
groups in society will have. Neo-Hamiltonian views (and some
forms of textualism and originalism) claim to be democratic on
the ground that they are trying to determine what “the people”
decided. But it takes highly specialized training, and a great deal
of sophisticated argumentation, to do that. Originalism requires
highly refined historian’s (and lawyer’s) skills.122 Textual inter-

121 See Hale, Reflections at 505 (cited in note 41); Prohibitions Del Roy, 77 Eng Rep
1342, 1342-43 (KB 1608); Simpson, Common Law and Legal Theory at 94 (cited in note

54).
122 See, for example, Michael W. McConnell, Originalism and the Desegregation

Decisions, 81 Va L Rev 947 (1995); Michael J. Iarman, Brown, Originalism and Constitu-
tional Theory: A Response to Professor McConnell, 81 Va L Rev 1881 (1995); Michael W.
McConnell, The Originalist Justification for Brown: A Reply to Professor Klarman, 81 Va

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932 The University of Chicago Law Review [63:877

pretation is not plausibly a matter of just reading the text in the
way that an ordinary citizen would. Particularly if a textual
approach draws “structural” inferences (as it probably must to be
plausible), textual interpretation is a high legal art form. As for
neo-Hamiltonian views, one can accept that “we the people” de-
termined many important things at the time of, for example, the
Civil War or the New Deal, but showing how those determina-
tions bear on today’s contested constitutional issues requires
enormous interpretive skill and originality.

In fact, one great advantage of the common law approach is
that it explains why trained lawyers-not historians, literary
critics, philosophers, or political scientists-should play such a
large role in constitutional interpretation.’23 It is not clear
what, exactly, the distinctive lawyers’ skills are, but the abilities
required by the common law method-proficiency in a form of
moral casuistry (distinguishing cases, recognizing significant
particular facts, and so on), a rough understanding of social sci-
ence, and skill at certain kinds of textual interpretation-are
good candidates. It is less clear why lawyers should be thought to
have the abilities required by the other approaches, such as the
historian’s skills required by originalism, the sophisticated skills
of historical interpretation required for neo-Hamiltonian views,
or the philosopher’s skills required by other approaches.

C. Democratic Substance versus Democratic Method

This last point suggests the final answer to the charge that
the common law approach is undemocratic: it may be a mistake
to suppose that a method of constitutional interpretation should
be democratic, at least when the courts have important responsi-
bility for implementing it. Judicial review necessarily has a guild
character in a sense, because by definition judges do it, and inev-
itably lawyers’ norms will heavily influence it. This means that

L Rev 1937 (1995). Although the Court in Brown conducted an extremely detailed exami-
nation of the original intent of the Fourteenth Amendment-the Court ordered rebriefing
specifically on that question, 345 US 972 (1952), and reargument was devoted principally
to that issue, see 347 US 483, 489 (1957)-the Court essentially conceded that the original
understanding did not support its decision. See 347 US at 489-90. Even if Professor
McConnell is right, and there is an originalist defense of Brown, it is surely a major
difficulty with originalism as an approach to constitutional interpretation that no one was
able to discover that defense for forty years-even though the advocates (and the Justices
and law clerks) at the time of Brown had the strongest incentives to do so.

123 See McConnell, 98 Yale L J at 1502 (cited in note 59); Fried, 60 Tex L Rev at 38
(cited in note 23).

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1996] Common Law Constitutional Interpretation 933

we have to address the tensions between democracy and judicial
review on the level of substance, not on the level of method. That
is, we should not try to find-because we cannot find-a wholly
democratic method of constitutional interpretation. Instead, we
should determine, as a matter of substantive constitutional law,
when judges in a constitutional democracy must accept the deci-
sions of the political branches and when the judges should oppose
the political branches.

The conceit shared by originalist and neo-Hamiltonian views
is that when judges oppose the political branches they do so in
the name of some other version of “the people.” This conceit
seems, falsely, to make it unnecessary to face the difficult sub-
stantive question of when, exactly, judges should be willing to
overturn the decisions of the political branches. Common law
constitutionalism can also claim a democratic basis, as I said
above. But it may be more illuminating to recognize that judicial
review, however practiced, has strongly undemocratic elements.
The solution is to decide as a substantive matter when the demo-
cratic process should prevail and when it should be questioned.
Common law constitutionalism focuses this question and forces
us to answer it in the design of substantive doctrines. The other
approaches (and the more mystical versions of the common law)
obscure it by pretending that the method is sufficiently democrat-
ic to make it unnecessary to ask this question.

The objection that traditional common law decisions can be
overruled by the legislature and that the common law is there-
fore an inappropriate model for constitutional interpretation-can
be met in the same fashion. This is, of course, an important dif-
ference between constitutional adjudication and common law
adjudication, but it does not invalidate the common law model for
constitutional interpretation. Instead it is a reason to adopt sub-
stantive principles of constitutional law that assign judges their
proper role in constitutional adjudication. So, for example, we
have adopted a principle that requires judges interpreting the
Constitution to be deferential to legislative decisions in most
circumstances. Similarly, the authority of constitutional judges to
adopt innovative policies is much more sharply limited than that
of traditional common law judges.

These principles themselves are excellent examples of princi-
ples that have developed by the common law method, rather than
by any command. There is no specific textual warrant for them.
Nothing in the text of the Constitution says that judges shall
presume the validity of statutes, for example. No textualist

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934 The University of Chicago Law Review [63:877

should feel comfortable referring to the “countermajoritarian
difficulty” or kindred notions: the text does not say that the deci-
sions of our government should presumptively be made by major-
ities. (Also, of course, the evidence that the Framers were
majoritarians is problematic, to say the least.) The need to be
appropriately deferential to popular majorities-like, for that
matter, all the rest of the institution of judicial review-has
evolved over time, by the common law method.

The principles that require unelected judges to be appropri-
ately deferential to majorities are principles that any plausible
theory of constitutional interpretation should adopt, in any de-
mocracy, whether it has our Constitution or any constitution.
They are valid principles not because the text or the Framers or
the people commanded them, but because they are sensible ways
of reconciling judicial review with democracy. The common law
method acknowledges that judicial review accommodates itself to
democracy by adopting such principles-not by attempting to
explain judicial constitutional interpretation in a way that makes
it appear to be more democratic than it is.

CONCLUSION

Our legal system is distinctive, perhaps unique, for the
prominence it gives to judges. The distinctiveness is manifested
in two practices in particular: judicial interpretation of the Con-
stitution, and the common law. I have suggested that these two
practices have much in common, and that American
constitutionalism, over the years, has increasingly, and justifi-
ably, taken on the character of a common law system. We some-
times say that the written Constitution is another distinctive
aspect of our legal order. The written text does play a crucial role
as a focal point for the conventionalism that is important to any
political order. There are powerful reasons not to interpret the
text in a way that would seem too contrived. But the Constitu-
tion is much more, and much richer, than the written document.
When we apotheosize the Framers we understate the importance
of the many subsequent generations of lawyers and judges, and
nonlawyers and nonjudges, who have helped develop the princi-
ples of American constitutional law.

Today it is those principles, not just the document, that
make up our Constitution. Originalist and textualist approaches
often find themselves in the position of making exceptions for, or
apologizing for, or simply being unable to account for, some of the
most prominent features of our constitutional order. The common

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1996] Common Law Constitutional Interpretation 935

law approach greatly reduces the need to do any of that. It forth-
rightly accepts, without apology, that we depart from past under-
standings, and that we are often creative in interpreting the text.
These practices, which are common and well settled, need not be
carried on covertly or with a sense that they are somehow inap-
propriate. They are important parts of our system, and they can
be justified on the basis of one of the oldest legal institutions, the
common law.

Perhaps the most serious charge against the common law
approach is that it is resistant to change. To some degree that is
true. But properly understood the common law method does not
immunize the past from sharp, critical challenges. Gradual inno-
vation, in the hope of improvement, has always been a part of
the common law tradition, as it has been a part of American
constitutionalism. Even sudden changes are possible. They re-
quire a stronger justification, but the common law approach, un-
like some other methods, allows judges to make them. Perhaps
most important, the common law method identifies what is truly
at stake: whether the arguments for change, in order to make the
law fairer or more just, overcome the presumption that should
operate in favor of the work of generations. Since we cannot
avoid that question, we are perhaps better off with an approach
that forces us to answer it.

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• Contents

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• Issue Table of Contents

The University of Chicago Law Review, Vol. 63, No. 3 (Summer, 1996) pp. 877-1374
Front Matter
Common Law Constitutional Interpretation [pp. 877-935]
On Educating Children: A Parentalist Manifesto [pp. 937-1034]
Essay
Fertility and Coercion [pp. 1035-1061]
Comments
Derivative Actions by Policyholders on Behalf of Mutual Insurance Companies [pp. 1063-1097]
Courts, Contracts, and the Appropriate Discount Rate: A Quick Fix for the Legal Lottery [pp. 1099-1137]
Agreements within Government Entities and Conspiracies under Section 1985(3): A New Exception to the Intracorporate Conspiracy Doctrine? [pp. 1139-1174]
A Public Trust Exception to the Rule of Lenity [pp. 1175-1210]
Exposing the Stealth Candidate: Disclosure Statutes after McIntyre v Ohio Elections Commission [pp. 1211-1241]
When Imitation Is the Sincerest Form of Flattery: Private Label Products and the Role of Intention in Determining Trade Dress Infringement [pp. 1243-1276]
Recklessly False Statements in the Public-Employment Context [pp. 1277-1309]
The Standard of Review for the Voluntariness of a Confession on Direct Appeal in Federal Court [pp. 1311-1345]
Review
Understanding Justice Sutherland as He Understood Himself [pp. 1347-1374]
Back Matter