The significance of James Stoner’s Forum essay on the common law, with the two responses by Hadley Arkes and John McGinnis, is made even clearer by recent events. Commentary on the sad passing of Judge Robert Bork and three reviews of Akhil Amar’s new book, America’s Unwritten Constitution, by Robert George, Jeremy Rabkin (link no longer available), and Lino Graglia provoke further reflections on the place of law and the courts within constitutional government. At the heart of the dispute is the extent to which legal interpretation, including of course constitutional jurisprudence, can exist apart from political philosophy. And this no mere academic dispute raises the profoundest questions of how we might defend and expand our fading freedoms.
Stoner’s concern for common law is an essential historical inquiry but as well part of a broader attempt to recover the meaning of the American founding for both theory and contemporary practice. Professor McGinnis finds troubling the potentially expanding and arbitrary power in the content of contemporary common law, while Professor Arkes would further develop Stoner’s argument, to embrace specific consequences of natural law reasoning. Among them, and the work of other scholars, they bring out major schools of interpretation put forth by conservative legal scholars.