The common law theory is based on ‘what the law is’ in a certain situation that is followed as a rule in later decisions by the court involving similar material facts through the doctrine of precedent also known as stare decisis.
The first point of discussion I would like to point out is whether judges make law through interpretation. In the common law system, the judge’s task is to discover and find the law, meaning judges should verify facts, locate relevant statutes and regulations, and develop general rules from precedent in order to apply them to future cases. But what happens if the subject is not regulated by a “clear precedent”? Although we’re heading towards an increase of case law (which itself makes harder for judges to extract a single general rule) and this kind of situation might be very few these days, judges commonly turn to a principle of justice which express moral, social and political considerations, meaning reason plays an important role. And what is “just” and “fair” is never very unanimous, is it?
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For this matter I think that a good example is Thomas v. Winchester and the McPherson v. Buick Motor Co cases. In the first case the Court held that the manufacturer of the negligently made product is liable only to the party whom he is in privity with, unless the product is a dangerous instrument that is likely to cause death or serious bodily injury like poison. Judge Cardozo in the latter case reformulated the issue. The Judge turns from ‘whether a product is imminently dangerous’ to ‘whether a product is dangerous if negligently made’. The Judge extends the principle not only to things which in their nature are calculated to do harm like poisons and weapons but also to things that their nature is such that it is reasonably certain that when negligently made may cause death or serious bodily injury which makes them a thing of danger, like the scaffold in Devlin v. Smith and the coffee urn in Statler v. Ray Mfg Co. And this is one example of the many where judges have “made law”.
Concerning Constitutional common law, I think first it is important to make clear that the Constitution is subject to evolution. It is not static. It evolves in order to address social changes. The question is how it evolves. And the answer might be through interpretation. Judicial interpretation. The judges not only determine the meaning of the constitutional provisions with respect for the intent of the Founders of the Constitution, but also use their imagination and creativity. A good example is Lochner v. New York1. A New York law required that bakery employees hours had to be under 10h a day and 60h a week. The Supreme Court held that this law violated the 14th’s Amendment’s Due Process Clause_, which in its view contained the right of “freedom of contract” or an employer’s right to make a contract with his employee without governmental interference. Although nowhere in the Constitution this “freedom of contract” is mentioned.
The Court further argued that this clause is not only a procedural guarantee that limit the means by which the State may deprive a person of their life, liberty or property but also a substantive limitation to the types of activities and rights that the government may regulate by assuming them to be fundamental - Substantive Due Process Clause. After this case the Court would strike down laws regulating wages, hours and other conditions of employment under Lochner’s conception of the 14th Amendment. Sixty eight years later the freedom of contract gives place to another right that is nowhere mentioned in the Constitution - the right to privacy. Let’s see Roe v. Wade2.
The issue here is the constitutionality of laws that criminalized or restricted abortions. The Court held that abortion was a fundamental right protected by the 14th Amendment Due Process Clause which contained the right to privacy. While the Court recognized that a woman’s right to choose whether or not to terminate her pregnancy is protected, it also recognized the competing interests of protecting a woman’s health and the “potentiality of human life”, which is the government duty to protect their citizens. But does the fetus qualify for a person to fall under constitutional protection? To answer this question the Court created the trimester framework. During the first trimester, when abortion was considered a safer procedure than childbirth, the Court left the decision to abort exclusively to the mother and her physician. For the second trimester, the Court decided that the state could regulate abortion only in order to protect the mother’s health. And finally, during the third trimester, when the fetus was considered “viable”, meaning that could survive on its own outside the mother’s womb, the state could regulate abortion and even forbid abortion, except when it would be necessary to protect the woman’s health.
To make my point I think it is important to refer the dissenting opinion of Justice White on this case: “I find nothing in the language or history of the Constitution to support the Court’s judgement. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its actions, invests that right with sufficient substance to override most existing state abortion statutes”.
The second point of discussion is how judges actually do this process of interpretation.
In common law, judges follow the precedent rule. But how? Eisenberg in his book3 points two different approaches - the adopted rule approach and the result based approach. In his words, “under the adopted rule approach, the rule for which a precedent stands is the rule the precedent explicitly adopted(…) and “under the result based approach, the rule for which a precedent stands is whatever rule that was strictly necessary, on the facts of the decision, to reach the result”. One example of the “result based” approach would be the decision in MacPherson v. Buick Motor Co - Judge Cardozo instead of overruling the precedent in Thomas v. Winchester, reformulated the rule.
The creativity I mentioned before in constitutional common law interpretation is reflected by the development of different levels of scrutiny - rational basis, intermediate and strict. Each level of scrutiny has its own methods to assess the constitutionality of the law in question.
According to the minimal scrutiny or rational-basis scrutiny the law will be struck down unless there can be a reasonable connection between the ends and means of the law. On the opposite, in the strict scrutiny method the law will be struck down unless the government can prove that the legislation is tailored to achieve a compelling state interest.
And at last the intermediate scrutiny lies in between both.
To give examples: in Lawrence v. Texas4 the Court held sodomy law unconstitutional on the grounds of substantive Due Process Clause, making same sex sexual activity legal. The Court not once describes homosexual sodomy as a “fundamental right”, meaning it did not apply the strict scrutiny standard. Instead, Justice Scalia states that the majority applied an “unheard-of form of rational basis review”. The Court in this case didn’t specify the scrutiny applied and lower courts have read the case differently on the question of scrutiny.
One example of clear strict scrutiny would be Griswold v. Connecticut5. This case involved a Connecticut law that criminalized the use of “any drug, medical article or instrument for the purpose of preventing contraception”. The Court held the statute to be unconstitutional on the grounds that it violated the “right to marital privacy” and could not be enforced against married couples. This right in the Court’s opinion falls under the right to privacy protected by the 14th Amendment’s Due Process Clause.
Because a married couple’s use of contraception constitutes a “fundamental” right, meaning it cannot be denied without violating principles of justice and liberty, Connecticut must prove to the Court its law is “compelling” and “absolutely necessary” to overcome that right. Not being able to do this, the law is struck down.
The third and last point I want to refer is in what way common law and constitutional common law connect. To give an example, if judges adopt the precedent rule approach for constitutional adjudication, the decision in Dred Scott v. Sandford6 - Dred Scott was a slave who sought his freedom through the American legal system. The United States Supreme Court denied his plea, determining that no Negro was or could ever be considered a citizen - should have been followed and racial segregation reality. And that is not what happened, since Brown v. Board of Education followed.
Sometimes the precedent rule method or also a group of precedents are not enough for the judge’s decision.
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