We discuss the common law and originalism with law, literature, and history scholar Bernadette Meyler. Some of today’s most intense constitutional controversies revolve around the proper sources of interpretive tools. Some forms of originalism, believing judging is legitimate only if it foregoes political choice and instead adopts the choices made by democratically accountable institutions, attempt to locate the sole meanings that constitutional text, whether “natural born citizen,” “habeas corpus,” or “ex post facto,” had in the common law at the time of its adoption. Bernie’s research reveals that the common law itself, rather than speaking with one voice, exhibited some of the same diversity of interpretation and opinion that we see in debates about meaning today. Nonetheless, she believes that interpretation that gives weight to those original debates, rather than non-existent singular meanings, is better justified than unmoored living constitutionalism. She calls this method “common law originalism.”

This show’s links:

• About Bernadette Meyler and her writing
• Follow-up from Matthew Butterick, in which he reminds us that the podcast app we mentioned last week, Overcast, uses his typeface, Concourse
• Ed Mazza, Nearly 1,000 Chickens Killed (a story of animal victimization related to our conversation with Matthew Liebman)
• Background on the common law
• About Sir Edward Coke and his Law Reports, which can be browsed here
• Calvin’s Case as reported by Coke
• About Dr. Bonham’s Case
• Background on originalism; see also here
• Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws (upon which he expands in A Matter of Interpretation
• Lawrence Solum, Semantic Originalism (an originalist theory that includes “the idea of the division of linguistic labor”)
• Bernadette Meyler, Accepting Contested Meanings
• Bernadette Meyler, Defoe and the Written Constitution (compare with Andrew Coan, The Irrelevance of Writtenness in Constitutional Interpretation)
• Walt Whitman, Song of Myself
• Oliver Wendell Holmes: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner (1918)
• Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It