In my last post, I noted that there has been a growing acceptance of the general common law among originalists.  One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.

Let me explore a number of cases where the common law has been recognized as legitimate by some originalists.  Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction.  The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.

But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law.  Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law.  He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.”  It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.

But the general law in diversity cases became more problematic over time.  Over time, the federal courts extended Swift to other areas where it is less clear there was a general common law and where the states may not have thought of themselves as following that law.  Thus, Erie may have been correct to eliminate the general law in many areas, even if Swift was correct as of the time it was decided.

While diversity cases involve law that the states could control if they chose to do so, there are other sources of general law that involve areas where the states are preempted by either federal constitutional or statutory law.  One of the strongest arguments against using general common law in areas where the state has applicable law is that the state law should take priority – since the state has authority to legislate in the area.  Thus, if a state clearly indicates that commercial law should be governed by state law (and Congress does not preempt that decision to the extent it has authority to do so), then state law applies.  But if the state does not have authority in an area, because either the Constitution or federal statutes have preempted its authority, then the general law might apply.

In my view, an example of this sort, where general law governs, is precedent concerning the U.S. Constitution.  This argument, with certain variations, was first made by John Harrison.  The basic argument is that there is no other source of law for such precedent (the precedent rules cannot be plausibly found in the Constitution) and that the precedent rules had the characteristics of general law.  Moreover, either the Constitution or federal statute (or both) render the state law of precedent to be invalid as applied to federal constitutional law in federal court.  (Precedent applied in state court as to federal constitutional cases is a more complicated matter.)

A new area where people attempt to argue for a common law rule is liquidation.  James Madison argued that an unclear law did not have its meaning liquidated until a series of decision had fixed its meaning.  This liquidation appears not to have been restricted to judicial decisions, but to have extended to executive and legislative decisions.  It is possible that Madion’s notion of liquidation constituted a common law rule at the time of the Framing.  In that event, it is possible that this common law – if it has not changed in the meantime – would require constitutional issues that have been applied in a series of decisions to be followed.

The difficulty with this argument, however, is fitting it into the Constitution’s system for the common law.  More specifically, the Constitution allows the general law when either the Constitution or federal law preempts state law.  But it is not clear how state law is preempted as to constitutional issues involving liquidation.