CONSTITUTIONAL COMMON LAW

"Constitutional common law" refers to a theory about the lawmaking competence of the federal courts. The theory postulates that much of what passes as constitutional adjudication is best understood as a judicially fashioned common law authorized and inspired, but not compelled, by the constitutional text and structure. Unlike the "true" constitutional law exemplified by marbury v. madison (1803), constitutional common law is ultimately amenable to control and revision by Congress. The theory originated in an effort to explain how the Supreme Court could legitimately insist upon application of the exclusionary rule in state criminal proceedings, once the Court had recast the exclusionary rule as simply a judicially fashioned remedy designed to deter future unlawful police conduct rather than as part and parcel of a criminal defendant's underlying constitutional rights or a necessary remedy for the violation thereof. On this view of the exclusionary rule, why does the state court have a constitutional obligation to do more than provide an "adequate" remedy for the underlying constitutional violation, such as an action for damages ? The source of the Supreme Court's authority to insist that the state courts follow any rule not required by the constitution or authorized by some federal statute is not evident. erie railroad v. tompkins (1938) makes plain that the federal courts have no power to create a general federal common law. This limitation exists not simply because of Congress's express statutory command, applicable to civil cases in the federal district courts, but because of the perception that there is no general federal judicial power to displace state law. To the contrary, the courts must point to some authoritative source—a statute, a treaty, a constitutional provision—as explicitly or implicitly authorizing judicial creation of substantive federal law. That federal statutes can constitute such authority has long been clear, and the result has been in many areas judicial creation of a federal common law designed to implement federal statutory policies. There is no a priori reason to suppose that the Constitution itself should differ from statutes in providing a basis for the generation of an interstitial federal common law. Not surprisingly, therefore, a significant body of federal common law has been developed on the basis of constitutional provisions. For example, the Supreme Court has developed bodies of federal substantive law on the basis of the constitutional (and statutory) grants of jurisdiction to hear cases in admiralty, as well as cases involving disputes among the states or implicating foreign affairs. Because the Court's decisions are ultimately reversible by Congress, its decisions holding statutes to be invalid burdens upon interstate commerce are also best understood as federal common law created by the Court on the authority of the commerce clause.

In the foregoing examples, constitutional common law has been created to govern situations where state interests are subordinated to interests of special concern to the national government, and thus come within the reach of the plenary national legislative power. They are federalism cases, in that the federal common law implements and fills out the authority that has been committed to the national government by the constitutional text and structure. Thus, the principle of these cases arguably is limited to the generation of federal constitutional common law in support of national legislative competence. These "federalism" cases do not by themselves establish that the Court may fashion a common law based solely upon constitutional provisions framed as limitations on governmental power in order to vindicate civil liberties, such as those protected by the first amendment and fourth amendment. Such a judicial rule-making authority—which seeks to create federal rules in areas of primary state concern—intersects with federalism concerns in ways that sets these cases apart from the federalism cases. Moreover, at the national level judicial creation of common law implicates separation of powers considerations. Nonetheless, the Court's constitutionally based common law decisions in areas of plenary national legislative authority at least invite inquiry whether the specific constitutional guarantees of individual liberty might also authorize the creation of a substructure of judicially fashioned rules to carry out the purposes and policies of those guarantees. Several commentators have, directly or indirectly, argued for acceptance of judicial power to fashion such a subconstitutional law of civil liberties. They argue that recognition of such a power is the most satisfactory way to rationalize a large and steadily growing body of judicial decision, not only in the criminal procedure area but also with many of the Court's administrative due process cases, while at the same time recognizing a coordinate and controlling authority in Congress. There has, however, been no significant judicial consideration of this theory apart from the decision in Turpin v. Mailet (2d Cir., en banc, 1978–1979).

Whatever its perceived advantages, a theory that posits a competence in the courts to fashion a constitutionally inspired constitutional common law of civil liberties must deal adequately with a series of objections: that development of such a body of law is inconsistent with the original intent of the Framers; that the line between true constitutional interpretation and constitutional common law is too indeterminate to be useful; and that the existence of such judicial power is inconsistent with the autonomy of the executive department in enforcing law as well as the rightful independence of the states in the federal system. The theory of constitutional common law bears a family resemblance to the views of those commentators who hold that the Court may legitimately engage in "noninterpretive" review—that is, the Court may properly impose values on the political branches not fairly inferrable from the constitutional text or the structure it creates—but who insist that Congress may control those decisions by regulating the jurisdiction of the Supreme Court. Other differences aside, the constitutional common law view would permit Congress to overrule the noninterpretive decisions directly, bypassing the awkward theoretical and political problems associated with congressional attempts to manipulate jurisdiction for substantive ends.

Henry P. Monaghan
(1986)

Bibliography

Monaghan, Henry P. 1975 The Supreme Court, 1974 Term—Foreword: Constitutional Common Law. Harvard Law Review 89:1–45.

Schrock, Thomas S. and Welsh, Robert C. 1978 Reconsidering the Constitutional Common Law. Harvard Law Review 91:1117–1176.