Common-Law Liberty

Rethinking American Constitutionalism

James R. Stoner, Jr.

James Stoners first book, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism, was hailed as forceful and wise . . . powerful and convincing by the American Historical Review and a stunning achievement by the Journal of Politics. In that work, which provided historical background to the Founding era, he focused on the common law almost exclusively as a mode of legal thought. He now amplifies and extends his thinking on this subject with a study that transcends such formalistic limits and reveals how constitutional law has developed since the Founding.

Common-Law Liberty is a rediscovery and reassertion of the common laws central contributions to and enduring impact on American constitutional law. Stoner illuminates the common laws ties to an entire way of life, inextricably linked to the Founding and American constitutionalism, influenced by Christianity, closely connected to the development of free enterprise, and open to the influences of modern science and democracy.

“Stoner is trained as a political theorist rather than a lawyer, and this has miraculously enabled him to write about complex legal topics in a manner accessible to laymen. Nevertheless, in his encyclopedic grasp of private and public legal doctrine he puts many law school academics to shame, and his book ought to be required reading for all first-year law students—and their professors. . . . Stoner’s book is a model of what can be done by an analyst who has mastered both political philosophy and law, an expose of how impoverished current judicial practice is, and a demonstration of how we lawyers might still recover a glorious heritage.

—Claremont Review of Books

“It was the peculiar virtue of the common law that it could embrace and accommodate both permanence and change. Those who remain open to the possibility of gleaning from its distilled wisdom will find no better point of beginning than with the work of Professor Stoner.

—Georgetown Journal of Law and Public Policy
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Stoner delineates two common laws: one understood by the Founders and rooted in British traditions of jurisprudence and one that, thanks to jurists like Holmes and Cardozo, corrupted the first by redefining common law as mere judge-made law or judicial process, dangerously disconnected from the values and norms of the communities it serves. The latter, for Stoner, has been a disastrous development, shrouding the common laws original meaning and vitality, replacing its spirited liberty with personal license, giving far too much discretion to judges who wish to depart from tradition and precedent, and, thus, undermining our constitutional system of checks-and-balances.

In an era as morally confused as ours, Stoner argues, we at least ought to know what weve abandoned or suppressed in the name of judicial activism and the modern rights-oriented Constitution. Having lost our way, perhaps the common law, in its original sense, provides a way back, a viable alternative to the debilitating relativism of our current age.

Drawing upon themes from his first book, as well as numerous articles, papers, and lectures produced during the past decade, Stoner crystallizes and reintegrates this body of work. By applying and contrasting both understandings of the common law to specific cases—including free speech, abortion, and religious liberty—he hopes to reclaim essential principles long buried but, in his view, desperately needed to preserve the integrity of our nations polity and its hold on our moral imagination.