Constitutional Common Law

Mr. Justice Powell has publicly characterized the 1974 Term of the Supreme. Court as a dull one. Whatever the accuracy of that description, the 1974 Term was, in the public eye, a quiet one. When, late in the Term, the Court ordered the death penalty case held over for reargument, it ensured that the 1974 Term would generate few front-page testimonials to the supreme authority of the Supreme Court. But neither a dull nor a quiet Term can obscure the current reality that the Court\u27s claim to be the ultimate interpreter of the Constitution appears to command more nearly universal respect today than at any time since Chief Justice Marshall invoked that document to deny Mr. Marbury the commission to which he was legally entitled. After a history of far more struggle than is generally remembered, it is now settled that (absent a constitutional amendment) the Court has the last say, and in that sense its constitutional interpretations are both authoritative and final. The Court\u27s great prestige has, however, tended to deflect careful inquiry into the limits beyond which its decisions, although authoritative, are not final. Even as the Justices have developed the habit of writing constitutional opinions that look like detailed legislative codes, the Court\u27s great prestige has fostered the impression that every detailed rule laid down has the same dignity as the constitutional text itself. This impression should be understood as the illusion it is. Indeed, a wide variety of Supreme Court pronouncements are subject to modification and even reversal through ordinary political processes. For example, Congress may validate a state law previously invalidated by the Court as an unreasonable burden upon commerce. Similarly, in Miranda v. Arizona, the Court explicitly recognized that its Miranda warnings might be modified by Congress and, perhaps, even by the states. Were our understandings of judicial review not affected by the mystique surrounding Marbury v. Madison, it might be more readily recognized that a surprising amount of what passes as authoritative constitutional interpretation is best understood as something of a quite different order – a substructure of substantive, procedural, and remedial rules drawing their inspiration and authority from, but not required by, various constitutional provisions; in short, a constitutional common law subject to amendment, modification, or even reversal by Congress. I hope to demonstrate that a theory of such a constitutional common law is necessary to explain satisfactorily a number of constitutional doctrines, and to outline a principled basis for a specialized common law rooted in the Constitution. Finally, I will suggest some implications of express recognition of a constitutional common law of individual liberty