Joshua Macey (Yale University – Law School), Ketan Ramakrishnan (Yale University – Law School), & Brian Richardson (Cornell University – Law School) have posted Against General Law Constitutionalism (University of Chicago Law Review (forthcoming)) on SSRN. Here is the abstract:
This Article considers when and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution, such as the First and Second Amendments and the Fourteenth Amendment’s Privileges or Immunities Clause, incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent. For these reasons, a general law revival would entail a radical reconfiguration of our constitutional system, and it would do so on the basis of complex and often indeterminate historical evidence. No such reconfiguration is likely to happen, of course. But without it, a modern general law constitutionalism would-rather than curtailing judicial discretion, empowering democratic bodies, or promoting experimentation-mire the federal judiciary in a moralized and largely discretionary form of common law-like decision-making that is vulnerable to the characteristic pitfalls of more familiar forms of common law constitutionalism without sharing in their characteristic attractions. This is true regardless of whether unwritten bodies of law like the general law are made (as modern legal commentators often suppose) or found (as the general law constitutionalists maintain). General law constitutionalists might seek to avoid these difficulties by treating the relevant constitutional provisions as static incorporations of the general law, which froze it in time at the moment it was incorporated. But the historical case for static rather than dynamic incorporation has not been made—and making it will be difficult, given that other bodies of general law (such as the law of equity and the common law) have by and large been incorporated by statutes in a dynamic matter. For this reason, among others, we doubt the historical record supplies any ready escape valve for the conceptual and normative difficulties that would attend any thorough attempt to revive putatively constitutionalized and now moribund bodies of general law.
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