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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
Judicial Decisional Models
  • 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)



“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
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 Common-wealth, 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
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
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 legislator1
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
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 statutes1
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

Tortious Interference with Parental RelationsWyatt 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 20121

Tortious Interference with Parental RelationsWyatt 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,velfilia, raptovelabducto.”

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

Tort Liability For Tree Falling on Public HighwayCline 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

Dram Shop LiabilityWilliamson 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

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

No Appeal of a Refusal to Find Civil ContemptJenkins 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

Correcting Mistakes in Appellate FilingsWhitt 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

Acquittal of a Guilty DefendantTaylor 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

Common Law Writ AuditaQuerelaCommonwealth 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

Stranger RuleShirley 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

Application of Abatement DoctrineBevel 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

Citizen’s ArrestHudson 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

Quiet TitleState 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

Obscene Display or ExposureMoses 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.”



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.