The Democracy
of the Dead:
The Relevance of Legal
History in Modern
Litigation
(2013 Norfolk-Portsmouth
Bench-Bar Conference)
“Tradition means giving votes to
the most obscure of all classes,
our ancestors. It is the democracy
of the dead. Tradition refuses to
submit to the small and arrogant
oligarchy of those who merely
happen to be walking around.”
G.K. Chesterton, Orthodoxy, ch. 4, The Ethics of Elfland (1909)
“The Constitution’s text does
not alone resolve this case.”
Crawford v. Washington, 541 U.S. 36, 42 (2004)
Then, what does?
Judicial Decisional Models
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Egocentric Oracle Model – what the judge personally
thinks the text should mean
Elite Culture/Platonic Guardian Model – what the
favored elite opinion makers think the text should
mean
Popular Culture/Snapshot Demos Model – what the
present majority consensus thinks the text should
mean today
Historic Tradition/Generational Demos Model – what
those of the past (both founders and later
interpreters) thought the text actually meant
“. . . we have no longer a
Constitution . . .”
“Political reasons have not the requisite certainty to afford rules of
[judicial] interpretation. They are different in different men. They
are different in the same men at different times. And when a strict
interpretation of the Constitution, according to the fixed rules
which govern the interpretation of laws, is abandoned, and the
theoretical opinions of individuals are allowed to control its
meaning, we have no longer a Constitution; we are under the
government of individual men, who for the time being have power
to declare what the Constitution is, according to their own views of
what it ought to mean.”
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 620-21 (1857) (Curtis, J., dissenting).
“Neither FORCE nor WILL”
“WE PROCEED now to an examination of the
judiciary department of the proposed government.
. . . It may truly be said to have neither FORCE nor
WILL, but merely judgment” and would bound by
“strict rules and precedents, which serve to define
and point out their duty in every particular case
that comes before them.”
Alexander Hamilton, Federalist Paper No. 78 (1789) (capitalization in original)
The Subjectivity of Language & Law
“All new laws, though penned with the greatest
technical skill, and passed on the fullest and most
mature deliberation, are considered as more or
less obscure and equivocal . . . . The use of words
is to express ideas. . . . But no language is so
copious as to supply words and phrases for every
complex idea, or so correct as not to include
many equivocally denoting different ideas.”
Federalist No. 37 (Jan. 11, 1788) (James Madison)
“the legitimate Constitution”
“I entirely concur in the propriety of resorting to the
sense in which the Constitution was accepted and
ratified by the nation. In that sense alone it is the
legitimate Constitution. . . . If the meaning of the
text be sought in the changeable meaning of the
words composing it, it is evident that the shape and
attributes of the Government must partake of the
changes to which the words and phrases of all living
languages are constantly subject . . . .”
3 Letters & Other Writings of James Madison 442-43 (Madison Letter to Henry Lee, June 25, 1824); see also 5 Documentary History
of the Constitution 332-34 (Madison Letter to Andrew Stevenson) (March 25, 1826)
Metamorphosis
“What a metamorphosis would be produced in
the code of law if all its ancient phraseology
were to be taken in its modern sense. And that
the language of our Constitution is already
undergoing interpretations unknown to its
founders, will I believe appear to all unbiased
Enquirers into the history of its origin and
adoption.”
3 Letters & Other Writings of James Madison 442-43 (Madison Letter to Henry Lee, June 25, 1824); see also 5 Documentary History of the
Constitution 332-34 (Madison Letter to Andrew Stevenson) (March 25, 1826)
The “Probable” Meaning
“On every question of construction [of the
Constitution] let us carry ourselves back to the
time when the Constitution was adopted,
recollect the spirit manifested in the debates,
and instead of trying what meaning may be
squeezed out of the text, or intended against it,
conform to the probable one in which it was
passed.”
Thomas Jefferson Letter to Justice William Johnson (June 12, 1823)
“to repeat what has been already said”
“To say that the intention of the [Constitution] must
prevail; that this intention must be collected from
its words; that its words are to be understood in
that sense in which they are generally used by
those for whom the instrument was intended; that
its provisions are neither to be restricted into
insignificance, nor extended to objects not
comprehended in them, nor contemplated by its
framers -- is to repeat what has been already said
more at large, and is all that can be necessary.”
Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.,dissenting)
Resurgent Role of Legal
History in U.S. Supreme
Court Opinions
• Confrontation Clause: Crawford v. Washington (2004)
• Right to Keep & Bear Arms: District of Columbia v. Heller (2008)
• Applying Bill of Rights to the States: McDonald v. Chicago (2010) (concurrence)
• Guantanamo Bay Detainees: Boumediene v. Bush (2008)
• Legislative Terms Limits: U.S. Term Limits, Inc. v. Thornton (1995)
• Sentencing : Apprendi v. New Jersey (2000) & Blakely v. Washington (2004)
• Patent Law – Business Practices: Bilski v. Kappos (2010) (concurrence)
• ADA in Church School: Hosanna-Tabor, etc. v. EEOC (2012)
• Fourth Amendment searches: U.S. v. Jones (2012) & Florida v. Jardines (2013)
Constitutional “Common law”
“That the Constitution is predicated on the
existence of the Common Law cannot be
questioned; because it borrows therefrom
terms which must be explained by
Com[mon] Law authorities . . . .”
James Madison Letter to Peter S. Duponceau (Aug. 1824), 9 The Writings of James
Madison 200 (Gailard Hunt ed. 1910)
English Common Law
Relevant in Virginia?
“The common law of England, insofar as it is
not repugnant to the principles of the Bill of
Rights and Constitution of this Commonwealth, shall continue in full force within the
same, and be the rule of decision, except as
altered by the General Assembly.”
Va. Code § 1-200 (first enacted 1776)
Common Law circa 1607
“[O]ur adoption of English common law . . . ends
in 1607 upon the establishment of the first
permanent English settlement in America,
Jamestown. From that time forward, the common
law we recognize is that which has been
developed in Virginia.”
Commonwealth v. Morris, 281 Va. 70 (2011)
Common Law Jurist qua Judge-Legislator?
“On appeal, Taylor concedes she has no legal authority for asserting
common law courts had the power to acquit a guilty defendant. . . .
Undeterred by this admission, however, Taylor contends we should
simply declare by ipse dixit that the power is within our common law
authority. The assumption underlying this request, however,
presupposes the common law is not merely a library of discrete legal
principles honed over centuries of judicial application — but is
instead a metaphor of judicial lawmaking power, one which we
may rely upon to enact improvements in the unwritten law or to
justify innovations on topics not specifically addressed by statutes.
We do not share this view of the common law.”
Taylor v. Commonwealth, 58 Va. App. 435, 445-47 (2011)
Common Law Jurist qua Judge-Legislator?
“In his 1803 edition of Blackstone's Commentaries, St. George Tucker
acknowledged a certain elasticity in the incorporation of English common
law into the corpus of our law at the time of the 1776 Virginia Constitutional
Convention. English common law, Tucker explained, governed Virginians
only ‘so far as the same were applicable to the nature of their situation and
circumstances . . . .’ As heirs of this tradition, Virginia jurists are free to trim
off or excise altogether those aspects of English common law which ‘are
repugnant to the nature and character of our political system, or which
the different and varied circumstances of our country render inapplicable to
us,’ as those aspects ‘are either not in force here, or must be so modified in
their application as to adapt them to our condition,’ id.”
Taylor v. Commonwealth, 58 Va. App. 435, 445-47 (2011) (citation
omitted)
Interpreting
Statutes
“Absent a clearly expressed legislative intent
otherwise, statutes should not be construed to
displace long-established common law principles.
‘Abrogation of the common law requires that the
General Assembly plainly manifest an intent to do
so.’”
Newman v. Newman, 42 Va. App. 557, 566-67 (2004) (en banc) (citation omitted)
Interpreting
Statutes
“The ‘best construction’ of a statute codifying common law
principles is the one ‘most near to the reason of the common
law . . . . The statute must therefore be read along with the
provisions of the common law, and the latter will be read
into the statute unless it clearly appears from express
language or by necessary implication that the purpose of the
statute was to change the common law.’”
Moses v. Commonwealth, 45 Va. App. 357, 375 (2005) (en banc) (citation omitted).
Tortious Interference with Parental Relations
Wyatt v. McDermott, 283 Va. 685 (2012)
► 4/3 opinion: recognized a new theory of liability for tortious
interference of parental relations (fraudulent adoption).
“The recognition of tortious interference with parental rights
finds precedent in our common law. We have previously
stated that our adoption of English common law . . . ends in
1607 upon the establishment of the first permanent English
settlement in America, Jamestown. From that time forward,
the common law we recognize is that which has been
developed in Virginia. Prior to 1607, a comparable cause of
action did lie in England, providing a father with recourse for
the abduction of his heir or sons rendering services.”
Tortious Interference with Parental Relations
Wyatt v. McDermott, 283 Va. 685 (2012)
► Majority relied heavily on William Blackstone’s Commentaries (circa
1760), which discussed the common law “writ of ravishment” and the
action of “trespass vi et armis, de filio,vel filia, rapto vel abducto.”
► Dissent also engaged in a common law analysis but came to a different
conclusion, relying on King’s Bench cases from 1599 and 1825:
“Accordingly, since English common law as it existed in 1607 did
not protect the parental relationship but only protected the
property rights of a father in his heir's marriage, and since Virginia
common law from that time forward has not recognized a cause of
action for interference with parental rights, I cannot conclude that
the cause of action asserted by Wyatt currently exists in Virginia.”
Tort Liability For Tree Falling on Public Highway
Cline v. Dunlora South, LLC, 284 Va. 102 (2012)
► Split 4/3 opinion: No tort liability for dead tree falling on motorist.
► Majority relied on “common law of England,” citing only Prosser on
Torts and Giles v. Walker, 24 Q.B. 656 (1890). “[N]o such duty existed
under relevant English common law.”
► Dissent ignored English common law (doesn’t mention Code § 1-200),
made policy arguments, and cited instead to modern Restatements.
► Plaintiff’s brief failed to mention English common law. So no one
knew that Giles was effectively overruled by Leakey v. Nat. Trust
[1980] 1 All ER 17, Q.B. 485 (Ct. App.). Nor did anyone apparently
know that Giles was a pretty thin reed.
Dram Shop Liability
Williamson v. The Old Brogue, 232 Va. 350 (1986)
► Held that a bar liquoring up a driver isn’t liable for his drunk driving.
“The reason for this is that the courts in Virginia operate under a
statutory mandate which provides that the common law of England .
. . continues in full force and effect within the State . . . .”
► Cited no English common law sources, only two Md. Cases & an
A.L.R. article (which also failed to analyze English common law)
► Recognized that “a large number of jurisdictions have abrogated by
judicial decree the common-law rule.” “Nevertheless, we will apply
the law as it now exists, because we believe that a decision whether
to abrogate such a fundamental rule as the one under consideration is
the function of the legislative, not judicial, branch of government.”
Tort Liability for Landlord’s Failure to Repair
Isbell v. Commercial Inv. Assocs., 273 Va. 605 (2007)
► Refused to recognize tort liability for landlord’s failure to repair
premises under tenant’s control as required by the Residential
Landlord Tenant Act, Code § 55-248.13.
► A “matter of first impression.” No remedy at common law. But there
were no English statutes imposing a statutory duty either.
► “Statutes in derogation of the common law are to be strictly
construed and not to be enlarged in their operation by construction
beyond their express terms. . . . When an enactment does not
encompass the entire subject covered by the common law, it
abrogates the common-law rule only to the extent that its terms are
directly and irreconcilably opposed to the rule.”
No Appeal of a Refusal to Find Civil Contempt
Jenkins v. Mehra, 281 Va. 37 (2011)
► “We begin our analysis by noting that ‘[t]he right of appellate
review from a finding of contempt or a refusal to find contempt
did not exist at all at common law.’”
► Code § 19.2-318 only abrogated the common law to permit
appeals of a judgment “for” contempt.
► Code § 8.01-670, allowing appeal from “any” final judgment
doesn’t plainly manifest “an intent to eliminate the ‘great
bulwark established by the common law . . . .’”
Correcting Mistakes in Appellate Filings
Whitt v. Comm., ___ Va. App. ___ (Mar. 26, 2013)
► Criminal defendant’s petition for appeal violated Rule 5A:12’s
requirement of a specific assignment of error.
► Commonwealth argued Virginia Supreme Court case, Davis v.
Commonwealth (2011), required dismissal.
► Section A(1) of En Banc CAV opinion begins, “the common law
continues in full force. Code § 1-200,” and concludes – citing
Chief Justice Marshall – that the common law invested all courts,
including appellate courts, with the power to grant leave to
amend pleadings.
Acquittal of a Guilty Defendant
Taylor v. Commonwealth, 58 Va. App. 435 (2011)
► Refused to recognize power of trial court to acquit a defendant
after the evidence found defendant guilty beyond a reasonable
doubt.
► “Nowhere in his four-volume work does Blackstone describe
any common law judicial power to acquit the guilty. To the
contrary, the common law does ‘not permit, that in criminal
cases a power should be lodged in any judge, to construe the
law otherwise than according to the letter.’”
► “Under English common law, only the crown had the
prerogative power of pardon. There simply was no such thing
as a judicial pardon.”
Common Law Writ Audita Querela
Commonwealth v. Morris, 281 Va. 70 (2011)
► Criminal defendant plead guilty and was given 12 month
sentence. One year sentence triggered INS deportation. Long
after the 21 day deadline, trial court reduced sentence by 1 day.
► Defendant argued on appeal the common law writ of audita
querela authorized the reduction in sentence. Other courts (Fla.
& Kent.) agreed.
► 7/0 SCV reversed: “However, neither this Court nor any English
court prior to the writ's adoption in this Commonwealth [in 1776]
has ever applied the writ of audita querela in this manner. We
will not do so now.” Id. at 83.
Stranger Rule
Shirley v. Shirley, 259 Va. 513 (2000)
► Refused to modify common law “stranger rule,” which
prevented a grantor from reserving an interest in real property
for the benefit of stranger to the deed – despite the modern
trend allowing this practice.
► SCV applies Tucker’s Commentaries on Blackstone — that
English common law applies except when it is repugnant to
“the nature and character of our political system”
► “[W]e find nothing in the nature, character, and circumstances
of either our political system or country that vitiates the
underlying reason for the common law ‘stranger rule.’”
Application of Abatement Doctrine
Bevel v. Commonwealth, 282 Va. 468 (2011)
► Refused to apply abatement doctrine when convicted
defendant died while his appeal was pending.
► “[T]o the extent that such authority might derive from the
common law of England . . . we find no support for the notion
that a criminal proceeding necessarily would abate following
conviction if the defendant were to die while he might yet have
obtained relief through a writ of error or some other process
equivalent to a direct appeal.”
► The majority opinion cites Blackstone, Hawkins, and a case
from the Queen’s Bench to point out that the defendant’s
executor or heirs could have pursued a writ of error.
Citizen’s Arrest
Hudson v. Commonwealth, 266 Va. 371 (2003)
► Recognized that common law permitted a citizen’s arrest by an
off-duty police officer for a breach of the peace committed in
his presence.
► Majority opinion cited Halsbury’s Laws of England and
Blackstone to establish the common law principles for citizens’
arrests and breaches of the peace.
► “Although he lacked statutory authority as a police officer to
detain Hudson, Officer Wills was lawfully entitled to effect a
citizen's arrest for the breach of the peace by Hudson
committed in his presence.”
Quiet Title
State of Maine v. Adams, 277 Va. 230 (2009)
► Refused to recognize a print of the Declaration of Independence,
purchased by a Virginian, was a “public record” owned by a town
in Maine.
► The opinion turned on the common law presumption of
ownership based on possession and the common law definition
of “public record,” which required the written memorial to be
produced by a public officer.
► Since the print was produced by a private printer and not a public
officer, the Maine could not produce evidence of superior title to
overcome the presumption of ownership based on possession.
Obscene Display or Exposure
Moses v. Commonwealth, 45 Va. App. 357 (2005)
► Split 6/3 en banc opinion refused to recognize “display” as
synonymous with “exposure” and affirmed the defendant’s
conviction for public masturbation while fully clothed.
► The majority opinion cited Blackstone to show that the lewd
nature of the offense was the main element not nudity or near
nudity.
► “Unless the word ‘display’ is superfluous, it must mean
something different from ‘exposure.’ If ‘exposure’ can only
mean some degree of nudity, then ‘display’ necessarily means
something different. And so it does.”
Conclusions
The Democracy of the Dead means “giving votes to the most obscure of all
classes, our ancestors,” and refusing to submit to the “small and arrogant
oligarch of those who merely happen to be walking around.”
Our law has always intuited this truth, both with the doctrine of stare
decisis and in the traditional method of judicial interpretation of legal texts
– two points the Founders insisted upon.
Legal History is making a comeback at the USSC on many issues of
constitutional law. And Virginia courts continue to apply legal history as
the baseline for Virginia common law and as a guide to statutory
interpretation.
Like it or not, legal history is resurgent in modern judicial decisionmaking.
Litigators should incorporate legal history into their advocacy. Judges
need to become more skilled in understanding its proper role.
Legal Historical Sources for
Virginia Lawyers