Common Law Constitutionalism and the Limits of Reason

A central claim of common law constitutionalism has been that precedent and tradition embody some form of latent wisdom. On this view, judges will generally do best by deferring to the wisdom embodied in precedent and tradition, rather than trusting their unaided reason. This Essay offers a critical analysis of the mechanisms that are said to generate this latent wisdom. The relevant claims and mechanisms suffer from infirmities of internal logic and from a failure to make institutional comparisons between and among precedent and tradition, on the one hand, and the outputs of legislatures, executive officials, and constitutional framers on the other. Statutes, administrative decisions, and constitutional texts also embody information and are also the product of many minds. Arguments for the rationality or efficiency of the ordinary common law, or of societal traditions, do not translate successfully into arguments for the comparative rationality or efficiency of the constitutional common law, as compared to statutes and other sources of law.