Nina Varsava (University of Wisconsin Law School) & Bill Watson (University of Illinois College of Law) have posted Originalism’s General-Law Turn on SSRN. Here is the abstract:
Originalists are increasingly turning to a general-law theory of constitutional rights. Under this theory, constitutional enactment declared but did not create constitutional rights. The content of those rights was, and remains, a question of general law—a species of unwritten law, commonly employed at the Founding, that transcends jurisdictional boundaries. This preoccupation with general law has precipitated a wave of scholarship developing general-law accounts of various constitutional rights. Yet the nature of general law itself remains poorly understood.
This Article offers a theory of general law. Using philosophical methods to reexamine early American cases and recent work in legal history, the Article finds that general law depended on morality. To the extent that constitutional law consists of general law, identifying constitutional law calls for moral reasoning. This is not pure moral reasoning employed from an armchair but rather applied moral reasoning that accounts for customs, legal texts, institutional roles, and other social facts, all filtered through lawyers’ specialized training and experience.
The implications for originalism are striking. First, the general-law theory of constitutional rights requires reconceiving the core originalist principles of fixation and constraint, as general law satisfies those principles only in the sense and to the extent that morality does. Second, applying general law can be seen as either finding or making law; the distinction turns on one’s view of the nature of law and is of no consequence for adjudication. Third, the theory supports an approach to adjudication that centers on moral reasoning and is consistent with a range of nonoriginalist approaches.
Highly recommended. My take on the “state of play” is that a very small number of originalists have endorsed the idea that the general law of the founding has the same status as the constitutional text.