My objective in this lecture is to take seriously the observation that constitutional law in the United States, as expounded by its Supreme Court, bears far more resemblance to common law than to textual interpretation. We live under a written Constitution. But the main body of that Constitution, including the first ten amendments we call the Bill of Rights, is very old, having been adopted nearly 230 years ago. As time marches on, judicial interpretations of this venerable text have piled up. Constitutional disputes today are almost always resolved by the courts applying this growing body of precedent. Constitutional law consists of interpretations of interpretations, and the norms that govern this process are largely those which govern the system of stare decisis, or following precedent. Constitutional theorists may engage in ever-more arcane disputes about whether the Constitution must be interpreted in accordance with its original intent or meaning, and if so, what this means. In the meantime, constitutional law — as practiced by the courts — continues to evolve in the fashion of a common law system.
Common Law | Constitutional Law | Law
Thomas W. Merrill,
The Supreme Court's Regulatory Takings Doctrine and the Perils of Common Law Constitutionalism,
J. Land Use & Env't L.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4022