Common-Law Constitutionalism and the Limits of Reason

Abstract

In recent years, the central claim of common-law constitutionalism has been that precedent and tradition embody some form of latent wisdom. Judges will generally do best by deferring to the wisdom embodied in precedent and tradition, rather than trusting to their unaided reason. In what follows, I offer a critical analysis of this family of claims. Drawing throughout on Jeremy Bentham's critique of the subconstitutional common law, I conclude that the constitutional common law is not plausibly seen as a repository of latent wisdom, at least not to any greater extent than statutes and other nonjudicial sources of law. The mechanisms advanced by common-law constitutionalists suffer from infirmities of internal logic and from a failure to make the necessary institutional comparisons between and among precedent and tradition, on the one hand, and the outputs of legislatures, executive officials, and constitutional framers on the other.