St. Mary's Law Journal


Most American lawyers take for granted that the common law established almost all the ordinary causes of action we know today. As Joseph Story’s Commentaries acknowledged, the common law is the basis of the entire U.S. system of law. Common law struggled with feudal and canon forms and eventually transformed them for the benefit of ordinary people even in the face of the most heinous travesties of the English and American past.

The Witch Judges of Salem, Massachusetts and the Parliament of Saints in England did not prevail through despotic radicalism to demolish the common law through codification. Legal positivism always seemed to spatter large amounts of human blood across the countries that adopted it. There is no rational reason for the people of the United States to re-adopt legal positivism to administer rigid formalities that the common law exists to relieve.

Due process under the common law is not confusing. It is simply due process under the written law according to the common sense rules for statutory construction that are confirmed by the test of time. But the common law requires that when rights are taken away, it is not done in secret, by a dependent political body, or without a jury trial. According to common law if a positive law fails to mention the requirements of due process, a legitimate court may imply them into the law.

The founders gave us many clues and shortcuts to apply the common law, including numerous references to it in the Bill of Rights and United States Constitution. These short cuts are so easy for Americans, that even our brightest jurists take them for granted and often forget their origin. These jurists are prone to follow the legal realism and positivism of Justice Scalia in the project of rejecting the very common law that brought our courts into being.

The Mathews framework for due process especially appeals to these jurists. But as this Article shows, where Mathews is taken to its final end, it will consume itself and potentially destroy the very shortcuts to the common law that made its ruling possible. Perhaps it will take losing these common law shortcuts through Mathews’ self-destruction for American jurists to realize what is actually at stake in our debates over what process is due.

One of the most ironic and absurd characteristics of legal positivists from Justice Oliver Wendell Holmes, Jr. to Justice Antonin Scalia, is that they never quite figured out how to quit the common law. Every so often they unwittingly embraced a common law rule despite themselves. This fact emphasizes the holes in legal positivist theory, including that it cannot work but as a parasite upon the common law, because the common law is a complete fabric of law.

The common law always seemed to find the cracks in feudal and canon laws to replant itself like a rose growing from concrete, even if by sheer human imagination. Let us, therefore, not despair. Rather, let us water the cracks in the concrete and scatter seeds in unlikely places as well, because something new may be formulating in the darkness below, preparing to break into the light, to give new life to the law in America.

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St. Mary's University School of Law


Brent. A. Bauer

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