Common Law Constitutionalism

While Textualism is associated with Antonin Scalia, the Common Law approach is connected most clearly to Sandra Day O’Connor. She joined the Supreme Court in 1981 and served for a quarter of a century. Most of that time was with Scalia, who joined the bench five years after O’Connor. The two maintained a philosophical rivalry that occasionally broke into open criticism in the written decisions of the Court. The core dispute was whether consistency or principle creates the greatest degree of legitimacy in reading the Constitution. Justice O’Connor famously argued that “Liberty finds no refuge in a jurisprudence of doubt.” ⁵³ This is the opening line of Planned Parenthood v. Casey (1992), a ruling upholding many of the abortion regulations instituted by the state of Pennsylvania, but more importantly upholding the essential framework of Roe from 1973. The phrase means that consistency in our understanding of the Constitution is of the greatest importance. We must follow precedent and make only minor alterations as events demand because only in this way can citizens have a clear set of expectations about the law. Scalia countered in his dissent in Casey that “Reason finds no refuge in this jurisprudence of confusion.” ⁵⁴ This phrase means that a principled approach to reading the Constitution may require us to overturn wrong-headed precedents; we should be consistent with reason rather than with past decisions. The dispute between the two Justices illustrates the core of a Common Law approach: respect for precedent and the adaptation to new circumstances through the incremental addition of new rules.