Common Law Liberty: Rethinking American Constitutionalism by James R.
(University Press of Kansas) James
Stoner's first book,
Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American
was hailed as forceful and wise . . . powerful and convincing by the American
Historical Review and a stunning achievement by the Journal of Politics.
In that work, which provided historical background to the Founding era, he
focused on the common law almost exclusively as a mode of legal thought. He now
amplifies and extends his thinking on this subject with a study that transcends
such formalistic limits and reveals how constitutional law has developed since
Common Law Liberty is
a rediscovery and reassertion of the common law's central contributions to and
enduring impact on American constitutional law. Stoner illuminates the common
law's ties to an entire way of life, inextricably linked to the Founding and
American constitutionalism, influenced by Christianity, closely connected to the
development of free enterprise, and open to the influences of modern science and
Stoner delineates two common laws: one understood by the Founders and rooted in
British traditions of jurisprudence and one that, thanks to jurists like Holmes
and Cardozo, corrupted the first by redefining common law as mere judge-made law
or judicial process, dangerously disconnected from the values and norms of the
communities it serves. The latter, for Stoner, has been a disastrous
development, shrouding the common law's original meaning and vitality, replacing
its spirited liberty with personal license, giving far too much discretion to
judges who wish to depart from tradition and precedent, and, thus, undermining
our constitutional system of checks-and-balances.
In an era as morally confused as ours, Stoner argues, we at least ought to know
what we've abandoned or suppressed in the name of judicial activism and the
modern rights-oriented Constitution. Having lost our way, perhaps the common
law, in its original sense, provides a way back, a viable alternative to the
debilitating relativism of our current age.
Drawing upon themes from his first book, as well as numerous articles, papers,
and lectures produced during the past decade, Stoner crystallizes and
reintegrates this body of work. By applying and contrasting both understandings
of the common law to specific cases--including free speech, abortion, and
religious liberty--he hopes to reclaim essential principles long buried but, in
his view, desperately needed to preserve the integrity of our nation's polity
and its hold on our moral imagination.
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