Joel Alicea:
Welcome to the American Enterprise Institute and to this event on the return of the general law. I’m Joel Alicea. I’m a law professor at Catholic University and a non-resident fellow here at AEI. I’m also the director of the Center for the Constitution and the Catholic Intellectual Tradition at Catholic University, which is one of the co-sponsors of this event. CIT for short for our center, explores the relevance of the Catholic intellectual tradition for American constitutionalism. We do that through events like this one and through fellowship programs, courses at CUA. You can learn more about us at cit.catholic.edu.
I’m, as always, very grateful to Yuval Levin and the team here at AEI for hosting us for this kind of event. We just had a conference here on First Amendment Originalism at which Professor Campbell also spoke. So we’ve been doing a lot with AEI and they’re always such gracious and supportive hosts, so we’re really grateful to them. The topic of our event today has been increasingly prominent in legal scholarship over the last, I would say, decade or so. And that’s the general law. As we’ll hear about in a few minutes, defining what the general law is or was, or might be in the future is itself a contested question among scholars.
But I think it’s relatively safe to say that however the general law is defined, one of its main features is that whatever it is, it’s a single body of law that applies across state and national boundaries by the consent of those sovereigns. In his important 1928 dissent in Black & White Taxicab versus Brown & Yellow Taxicab, Justice Oliver Wendell Holmes described the general law as quote, “a transcendental body of law outside of any particular state, but obligatory within it.” In its most controversial manifestation, it included, the general law included the common law, regulating things like property, torts, contract disputes.
Under that understanding of the general law, the common law of contract for Kentucky would be the same as the common law of contract for Tennessee, except in so far as one of those states had expressly departed from it. In his dissent, Justice Holmes famously said, “There is no such body of law.” And his view prevailed. 10 years later in perhaps the most famous civil procedure case of all time, Erie Railroad versus Tompkins. Erie said that, quote, “There is no federal general common law,” unquote. Since 1938, we have grown accustomed to thinking about common law as state specific, such that there are separate bodies of common law for Kentucky and Tennessee, not a single body of common law.
Why does that matter? Well, we’ll get into that in more detail shortly, but according to some scholars, this fundamental shift from the former understanding of the general law has been pernicious, creating all kinds of conceptual and legal problems with real implications for contested matters of public policy. Others, by contrast see Erie’s rejection of the federal general common law as conceptually and legally sound. But what is distinctive about this moment is that for the first time since 1938, there seems to be real appetite among scholars and judges for a return of the general law. So it’s worth exploring what the general law was and what it would mean for it to return, assuming it ever left.
To help us better understand those topics, we’ll have two of our leading scholars, well, really two of the leading scholars in the academy generally, and certainly leading scholars of the topic of the general law in particular. I’ll very briefly introduce them in the order in which they’ll speak. Each speaker will have 15 minutes to give opening remarks followed by an informal discussion that I will moderate. We’ll then open things up to Q&A, which we’re going to do at one o’clock instead of at 1:15. We’ll have microphones in the room for those of you here.
So I’ll ask you to raise your hand. If I call on you, then wait for the microphone. If you’re watching this event online, you can submit a question by emailing michael.schwartz@aei.org or on X with the hashtag, generallawaei. So with that, A.J. Bellia is the O’Toole professor of constitutional law at Notre Dame Law School. He is a constitutional law and federal court scholar and the co-author with Professor Brad Clark of an article called Erie and the New General Law, which is forthcoming in the University of Chicago Law Review and is directly on point for today’s event.
Professor Bellia clerked for Justice Antonin Scalia on the Supreme Court, Judge Diarmuid O’Scannlain on the Ninth Circuit, and Judge William Skretny on the Western District of New York. He graduated from Notre Dame Law School and Canisius College. Jud Campbell is a Professor of Law at Stanford Law School. He’s a legal historian, author of General Citizenship Rights, which was published in the Yale Law Journal in 2023, also very relevant to our discussion today. Professor Campbell clerked for Judge Diane Sykes on the Seventh Circuit and Judge Jose Cabranes on the Second Circuit. He graduated from Sanford Law School, holds degrees from the London School of Economics, where he studied as a Marshall scholar and earned his undergraduate degree from UNC Chapel Hill.
And so with that, I’ll turn it over to Professor Bellia.
A.J. Bellia:
Thank you, Joel. Should I stay here or go to the podium?
Joel Alicea:
It’s up to you. If you’d rather speak from standing, whichever you’d prefer.
A.J. Bellia:
All right. I’ll step up to the podium then. Sure. Thank you. Okay. Thank you. And let me begin by adding my own word of thanks to AEI and the Center for the Constitution and Catholic Intellectual Tradition for having me today to participate in this program. It is really a pleasure and an honor to be here. I’d also like to thank Professor Alicea and Professor Campbell for sharing their insights with us today.
A.J. Bellia:
So the title of our panel is the Return of General Law. In recent years, there has been much discussion about whether judges should welcome back general law as rules of decision in federal court.
Some scholars argue that the Supreme Court should overturn its landmark ruling in Erie Railroad versus Tompkins, as just mentioned, and reopened the door for general law because that’s what the original constitution envisioned. Other scholars say, “Yeah, Erie was wrong as an original matter, but it’s just really too late in the day to scrap it. And so, it’s just another thread in our non-originalist constitutional fabric.”
Still, other scholars call for more targeted uses of general law, including to give content to certain individual constitutional rights protections. Bottom line, there is a lot of talk about general law these days.
A.J. Bellia:
It’s really not possible to evaluate whether general law should, quote, return in some way, shape, or form without first understanding what the general law was that allegedly departed. So with my time here, I just want to do three things. First, I want to provide an overview of one understanding of what general law was at the founding. The Constitution was designed to interact with general law in certain ways, and I will briefly explain some of them. Second, I will explain how federal courts expanded the traditional realm of general law during the Swift era of the late 19th and early 20th centuries. This expansion of general law is what ultimately, in my view, ran up against certain basic features of the Constitution’s design.
Third, I’ll explain how Erie actually can be understood to align with the original constitutional design. Erie contains some categorical and confusing statements, but its core constitutional holding, to my mind, did not actually reject all general law in contravention of original understandings. Rather, I think there is one reading of Erie that would have that case return federal judicial use of general law to its proper domain. One quick preliminary. It’s really not possible to talk about general law without some working definition of what that phrase means. Some, as Professor Alicea just mentioned, have defined general law very broadly in ways that seemingly capture many different sources of unwritten law, the law of nations, the common law, equity, admiralty, choice of law, and so on.
Historically, I would posit general law was not synonymous with any form of unwritten law. Some unwritten law was general, but some unwritten law was local. General law was general in the sense that it governed across jurisdictions and no one jurisdiction had the power to dictate its content. The law governing neutral use of the high seas would be just one example. Local law was local in the sense that its content was subject to the control of the jurisdiction to which it belonged. So for example, the law governing real property transfers would be an example of local, unwritten law. It’s quite critical to appreciate this distinction because different sources of unwritten law, general and local, interacted with the Constitution in different ways.
Let me try to explain. Imagine just for a second, asking an American lawyer at the founding this question, what sources of law will these newly created federal courts in the Constitution apply in the exercise of their Article III jurisdiction? I think the answer might look something like this. First, our hypothetical late 18th century lawyer might say there are federal sources of law that federal courts will apply because the Constitution itself recognizes them as the supreme law of the land. They are the Constitution itself and any amendments to it. The laws of the United States made by Congress in pursuance of the Constitution and treaties of the United States.
The supremacy clause of Article VI specifies these three sources of law as the supreme law of the land, and Article III extends the federal judicial power to cases arising under them. A key compromise in the Constitution was that these three sources of law can displace state law. Each of them, by design, requires the ascent of a specific combination of politically accountable actors. In addition to these federal sources, I think our lawyer would say, “Well, federal courts could apply local state law if it wasn’t preempted by these sources of federal law.” And that local state law would be law that derives from state authority and whose content is subject to the sovereign control of the state. This would include state constitutions, state statutes, and state common law.
With respect to state common law, each state had adopted, one way or another, the common law of England as the common law of that state. At the founding, this common law looked very much the same from state to state because each state adopted it from a common source. Of course, from there, each state would take its own common law on its own path of development, and this was fine, because what made local common law local common law was that it was subject to the sovereign control of the state to which it belonged. This local common law governed matters of intraterritorial concern.
Think first year traditional law school curriculum, property, criminal law, torts, procedure, at least local contracts. These were all local matters subject to local control. Now, I expect Professor Campbell will discuss how some of this common law included fundamental rights shared across jurisdictions. For instance, certain basic property and contract rights, and I hope he’ll discuss how the Constitution imposed certain limits perhaps on state control over this law, and that may well be true. But that matter aside, states controlled the content of their own common law. And for that reason, courts of another jurisdiction would defer to state understandings of their own law.
Okay, so there was federal law and there was state law. The third category of law that our Founding Era lawyer would surely identify as a possible source of law in federal courts would be general law. General law was a source of law a federal court might apply whose content was not subject to unilateral control by the federal government, by a state, or by any other sovereign. This was the general law to which Blackstone referred when he described the traditional law of nations as general law. General law in this sense was the law that applied in general, to maintain constructive relations between sovereigns and their citizens or subjects and to resolve their disputes reliably and peacefully.
This law included the law of state-state relations, perhaps public international law, if you will. The law that governed relations between different sovereigns. Think immunities of ambassadors, rights to exclusive territorial sovereignty, rights to conduct neutral commerce, and so forth. Second, general law included the law maritime. This body of law included both the private law maritime, think torts on the high seas, marine insurance contract law, and prize law. Think capture and condemnation of enemy vessels. The third category of general law was the law merchant or general commercial law. This was the law that governed transactions between merchants of different sovereigns.
These categories of trans-jurisdictional law were neither federal law nor were they state law. Neither Congress nor a state could unilaterally dictate the content of that law to the world.
A.J. Bellia:
But even though general law was not federal law or state law, early federal courts could and did apply such law in appropriate cases without any controversy and without any debate. That is because the Constitution, to my mind, was designed to facilitate the application of this law. Article III for instance, gave federal courts jurisdiction over cases affecting ambassadors. Why? So that federal courts could uphold the rights of ambassadors under the law of state-state relations, where states had failed to do so under the Articles of Confederation, essentially declaring war against foreign nations.
Article III gave federal courts admiralty and maritime jurisdiction. Why? So they could apply the law maritime in cases beyond the jurisdiction of any one state. Article III gave federal court’s diversity jurisdiction. Why? Among other reasons, so that they could apply the law merchant or general commercial law free from the bias that state courts had exhibited against out-of-staters and foreign citizens and subjects. In some cases, I believe the Constitution required courts to apply general law.
A.J. Bellia:
Let me give just one example. When the political branches of the United States recognized a foreign government, they recognized that government as a sovereign, entitled to all rights, privileges, and immunities of sovereigns under the law of nations.
Federal courts had to respect that decision because it was the political branch’s decision to make, not theirs. Thus, if a federal court denied a nation the rights of its ambassador under the law of nations, the court would be disregarding the political branch’s decision to recognize that nation. A denial of such a right might also constitute a judicial declaration of war against the other nation, another usurpation of powers belonging to the political branches. The Marshall Court made clear in several cases that courts had to respect the rights of foreign sovereigns under the law of nations in order to avoid usurping political branch authority over foreign relations and war.
So federal courts applied general law in these and other appropriate situations. When they did, they exercised independent judgment to determine its content as the courts of any sovereign in the world would as well. Local law however, like the law of property or tort was a different matter. Federal courts did not exercise independent judgment over the content of local state law, including local state common law. No state had the power to dictate the content of general law, but each state did have the power to determine the content of its own local law. Because each state had power to define and expound its own law, federal courts followed state court’s understandings of their own law.
This context to my mind, is essential for understanding the Supreme Court’s 1842 decision in Swift versus Tyson. Swift is notorious for rejecting the New York court’s understanding of general commercial law. When read in context though, the decision actually on examination is pretty unremarkable. Justice Story observed in this case, Swift, that the New York courts themselves understood the disputed issue in the case to be governed by general commercial law. There was no New York statute and there was no New York local common law usage custom that governed the matter at issue. Since New York understood general commercial law, not local law to govern the dispute, it was unremarkable that the Supreme Court exercised independent judgment to determine the content of governing general commercial law. That is what courts did.
If New York had its own local law, written or unwritten, enacted or customary to govern the case, then the court would have deferred to New York’s understanding of its own law. Swift, I don’t think broke new ground, it continued an old practice. For this reason, it wasn’t Swift that generated the Erie problem. It was the post-Civil War evolution of the Swift doctrine that generated the Erie problem. In the later decades of the 19th century, federal courts began to expand the realm of general law to encompass matters that states had local law to govern. In other words, federal courts began redefining general law to include not only trans-jurisdictional matters governing relations between sovereigns and their citizens, but also traditionally local matters subject to local state governance such as tort duties and other related local matters.
It was this expansion of general law that generated the clash of sovereignties that Erie addressed.
A.J. Bellia:
Under the supremacy clause, there are three sources as I mentioned, of supreme federal law that may displace local state law, the Constitution, federal statutes, and treaties of the United States. When federal courts began displacing local state common law itself, they were upending a core compromise upon which the Constitution was founded. States may apply their own laws, unless they conflict with one of the three forms of Supreme Federal law. General common law, untethered, untethered to the Constitution laws, or treaties of the United States doesn’t qualify as one of those preemptive sources of federal law.
A.J. Bellia:
The core reasoning of Erie recites this basic principle of the supremacy clause, quote, “Except in matters governed by the federal constitution or by acts of Congress, the law to be applied in any case is the law of the state.” Few would contend that Erie is in every respect, a model of clarity. I don’t think it is. It is not. It contains sweeping jurisprudential language about unwritten law that surely represented a shift from past thinking. Still, the core constitutional holding of Erie is pretty clear. The supremacy clause provides three sources of supreme federal law that may displace conflicting state law. The constitution laws and treaties of the United States. General common law standing on its own two feet does not qualify.
It’s also important to keep in mind that as important as Erie is, it is only one case. It’s a landmark. It’s the most famous civ pro case, absolutely. But it’s just one case. Like every case, we have to read it alongside others. On the very day that the court decided Erie, it decided another case that continued to apply general law, albeit general law recast as federal common law, but general law nonetheless. It applied this law to resolve an interstate dispute over water rights. This was the same traditional general law governing inter-sovereign relations that the court had applied consistently with the Constitution since the founding.
The point, and I’ll get to a conclusion, is that Erie read in context, read in connection with other cases, does not banish all general law from federal courts. It never did. It never has. Under Erie, federal courts may apply general law as they always have. If the supreme law of the land or state law authorizes or requires its application. In a forthcoming article that Professor Alicea mentioned, Professor Brad Clark at GW Law School, and I explain the proper uses of general law and federal court, and here are some in our view. First, courts may use general law as background context for interpreting the meaning of the Constitution or enacted federal laws.
Nothing in Erie precludes courts from using general law to determine the meaning of constitutional provisions or federal statutes, or determining that the Constitution or federal statutes require judicial resort to general law. I am hopeful that Professor Campbell will have more to say on this subject. Courts may use general law when necessary to uphold the powers of the political branches over war and foreign relations, for example, as well as to uphold other structural constitutional mandates. They have used it in this way since the founding.
Courts may use general law when a state authorizes or requires its application in a matter that is subject to state regulatory control. So in short, in conclusion, Erie does not banish all general law from federal courts. But importantly, that said, any argument for a return to general law must account for the core holding of Erie, that only three sources of federal law properly enacted through very difficult procedures may displace state law. This holding is not originalist. It implements a very basic feature of the constitutional design. Thank you.
Jud Campbell:
All right. Thanks so much. It’s really a delight to be here. Thanks to AEI and to CIT for hosting this, and to Professor Alicea and Professor Bellia for the opportunity to exchange ideas. I agree with a lot of what Professor Bellia just said. I want to offer a slightly different way of thinking about the domain of general law and try to provide an account for why it made sense from the founding perspective to view general law in a broader way, embracing some common law things that Professor Bellia views as local law.
And then I also want to add to the picture, some parts of the US Constitution that only in my view makes sense in light of this earlier understanding of general law. So let’s just dive first into the idea of general law. And in particular here, the idea that aspects of the common law that Professor Bellia labels local law, were for many people, not everyone, understood to be actually in part, general law. To set the stage for that, I want to start with a conception of common law that wasn’t general law because it wasn’t cross-jurisdictional. So just to set the stage here, let’s imagine that we’re lawyers in England in the 1760s.
So English jurists at this time widely recognize four buckets of law based on two distinctions. So just envision a two-by-two matrix. So one distinction is between national law and local law, and another distinction is between enacted law and customary law. So in one bucket, you have national enacted law. This would be statutes passed by parliament that have authority throughout England. In the next bucket, you have national customary law. That’s the common law. And that again, has authority throughout England. Then in the next bucket, you have national … Excuse me, you have local enacted law. That would be like an ordinance passed by the city council of London, applies only within that jurisdiction.
And then of course, local customary law is what it sounds like, it’s law that has authority through prescription that operates only within the locality. All right. So you have these four different buckets of law, one of which is common law. And the key thing to just identify here is what’s missing in this matrix, which is a notion of general law. None of these four buckets of law is itself defined in terms of general law. Rather, it’s either national law or local law. Now, I agree that the common law embraces certain principles of general law when it makes reference to the law of nations or the law merchant or whatever. But the key point here is one of agreement with Professor Bellia, if you’re a London lawyer in the 1760s, the common law is not generally operating as general law.
All right. So let’s bring things over to this side of the Atlantic and imagine we’re in the American colonies in the 1760s. At that point, we saw ourselves as British, just like people in London. And because of that, we enjoyed equal rights, which included rights under the common law. We asserted our rights as Englishmen to basic things like life, liberty, and property. Now, the common law did sometimes account for local circumstance, and often people disagreed about its content. So there were interpretive disagreements, as is often the case among lawyers and judges. So it definitely was the case that not every aspect of the common law was exactly the same over in London as it was here in Maryland.
And then as I mentioned earlier, the common law could be supplemented with local law, either local statutes or local customs. But the key point here is that Americans insisted that we were members of the same British nation and enjoyed the same rights of the English common law. So for them, for us, the common law crossed the Atlantic, it crossed the Potomac, it crossed the Delaware, it crossed the Hudson. These were not yet sovereign borders, but the common law had an expansive geographic reach. All right. So things start to then change in the American Revolution. At first, the American position is not to deny that all of the territory of England and the territory of the colonies was part of the same nation. Rather, the American position at the outset was under our rights as Englishmen, we have authority and principles of natural law and customary law are required to consent to taxation.
Jud Campbell:
By the 1770s though, Americans have shifted towards a new position. And the new position is that we are independent sovereign polities, but united under in a sort of confederation of independent states, united under the king. So this was explained very nicely by James Wilson in 1774. He said, quote, “All the different members of the British Empire are distinct states, independent of each other, but connected under the same sovereign in right of the same crown.”
So notice that even before the Declaration of Independence, Americans had gravitated towards this view that we are our own sovereigns, independent from England, even while we thought of ourselves as being, in a sense, members of the same Confederated League under the protection of the same king. At the same time, we asserted that we all enjoyed the same basic common law rights. So that’s really important, I want to say that again. Even though we no longer saw ourselves as being part of a unified British nation and had instead come to see the British Empire as a collection of independent sovereign states, we nonetheless held to the idea that all the members of that Confederation enjoyed the same basic rights under the common law, the rights of Englishmen.
Jud Campbell:
So notice what that then meant for our understanding of the common law. Rather than being national customary law that only crossed local borders, the common law became a body of cross jurisdictional law or general law within this confederation of independent nations. Now crucially, nobody is orchestrating this shift and nobody is even theorizing about it. The point of the revolution has nothing to do with converting the common law into a body of cross-jurisdictional law. All of this is simply a byproduct of the way that Americans reimagine the nature and allocation of sovereignty within the British Empire.
But as often happens, one thing leads to another, and all of the sudden, it was possible to see the common law. Even aspects of the common law that were previously understood simply as national customary law, it was now possible to see those aspects of law as cross jurisdictional. Now, I should clarify, this wasn’t the only way of reckoning with the transformation in the way that Americans thought about sovereignty and the revolution. Another possibility, and one that many Republicans later embraced in the late 1790s, was to say that the common law remained national customary law, but it fragmented into a bunch of discreet bodies of law in each state. So this is basically the account that Professor Bellia just articulated. And on this view, there is no general common law of property, contract, and so on.
Jud Campbell:
Jud Campbell:
And I want to use this as an opportunity to segue into the second part of the talk where we look at a couple of different parts of the Constitution that makes sense in light of this earlier understanding of general law.
Jud Campbell:
So let’s start with Article IV’s Privileges and Immunities Clause. When we declared our separation from Britain 250 years ago, each state continued to use the common law as the backdrop for its legal system, but two very significant things changed. First, courts no longer formally worked for the King. Rather, each state maintained its own court system, which assumed responsibility for the protection of law, including the adjudication of common law crimes and common law civil suits.
And then second, because we were no longer part of the British Empire, the citizens of each state no longer necessarily enjoyed the rights of citizenship in other states. So the citizens of Virginia were not automatically entitled anymore to enjoy property rights in Maryland because those were different jurisdictions. And this is where Article IV of the Articles of Confederation came in. That article had a privileges and immunities clause, almost identical to the one that later appeared in Article IV of the Constitution. And the point of that clause was to extend the same basic general law rights to the citizens of each state.
Jud Campbell:
So these rights included, so called retained natural rights, often summarized as rights of life, liberty, and property, and then also general common law rights. So that’s the main function of the Privileges and Immunities Clause to make sure that the citizens of each state are able to enjoy basic rights of citizenship in every other state, which is to say the rights of Englishmen, this common body of rights that Americans had sought to defend during the revolution. The second function of the clause is to ensure a right of equality in how states regulate that right. So when states impose rules about when you have to file your tort suit, how that tort suit is adjudicated and so forth, they have to offer the same rules to in-staters and out-of-staters.
So there’s a dimension of this that is recognizing the clause as a non-discrimination provision, but it’s also recognizing that there’s this common body of general fundamental rights. So the Privileges and Immunities Clause thus creates what Justice Story called a general citizenship, which is to say a citizenship in this collection of states where we’re recognizing reciprocal citizenship across state lines. Now of course, articles I, II, and III of the Constitution later create national powers, and there’s a notion of national citizenship that comes out of that. But notice that Article IV of the Constitution operates a little differently. Article IV is all about interstate relations.
And so, many people actually come to think of Article IV as being more like a treaty than like a constitution of government, that it operates in a way that recognizes a return to this idea of a family or a community of states. And so, as a result of that, the rights of citizenship that are secured in the Privileges and Immunities Clause of Article IV were not national citizenship rights, and they’re not supplied by national law. Rather, they’re general citizenship rights supplied by general law, based on the idea that each state’s social contract had recognized this common set of rights, the rights of Englishmen.
Now, I’m sure that some of the law nerds in the audience have heard of Justice Washington’s decision in Corfield versus Coryell, which addresses the Privileges and Immunities Clause’s application to the right to harvest oysters in public waters. And scholars usually remember this decision as recognizing a fundamental rights reading of the clause, that the clause only applies to fundamental rights. I think that’s mostly right, but the basic point that Justice Washington was trying to state in that opinion is, the clause only recognizes general fundamental rights. So a state might recognize certain rights as being fundamental to its own citizens within its own state.
They might confer the right to vote or they might confer as a matter of constitutional law, the right to engage in fishing in public waters. But what the Corfield decision identifies is that the privileges and immunities of citizens recognized by the Article IV provision, is one that is specifically about this body of general fundamental rights. Now, those rights are subject to state regulation in promotion of the public good. And federal courts are supposed to be very deferential in how they identify what those rules are, but the rights themselves are supplied by general law, including things like property rights and ordinary contract rights. All right. I want to conclude just with a couple of words about the privileges or immunities clause of the 14th Amendment.
As a practical matter, this clause has been defunct ever since the Slaughterhouse cases about five years after the amendment’s passage. But historians and legal scholars almost unanimously agree that this was at the heart of the original Section 1 of the 14th Amendment. They’ve been deeply divided though about its meaning. So there’s three leading interpretations of the clause. I’ll say each of them has some merit, but each is also problematic in certain ways. So some people think the clause only refers to constitutionally enumerated rights. The problem with this view is that Republicans in the 1860s constantly refer to the rights secured by the Privileges and Immunities Clause as being the same set of rights. And of course, that includes things like contract rights and property rights, not simply constitutionally enumerated rights.
Other scholars think that the 14th Amendment transformed rights, secured under Article IV into a body of national rights. But this view is really hard to square with the moderate Republican supporters of the amendment who often said that it wouldn’t nationalize the common law rights or otherwise take away state power to regulate those rights. And then finally, some scholars assert that the clause only provided a right of equal treatment, not substantive protection for particular rights. And this is also problematic because it runs up against lots of evidence that the Republicans thought the amendment would protect substantive rights. They spoke about it in substantive terms frequently.
In a paper that I wrote a couple of years ago with Will Baude and Steve Sachs, we argued that folks have missed a really important piece of the puzzle, and that is that the clause recognized general fundamental rights. It didn’t create new rights, and it wasn’t about simply a right of equality. Rather, the clause recognized the existence of these general fundamental rights that were already existent, that were already secured by the Privileges and Immunities Clause, the same rights that Justice Washington had identified in Corfield. And what it did was to add new means of federal enforcement, enabling Americans to seek relief in federal court, not just in state court, when states violated those rights with respect to their own citizens.
So the rights themselves remained grounded in general law. States could continue to regulate them just as they had been doing, but now federal courts could intervene when states exceeded the scope of their regulatory authority. So once again, general law is a really important piece of the original constitutional design. And I think anybody who wants to revive the original meaning or at least think through how to understand that original meaning, needs to grapple with this earlier conception of general law, one that has largely been displaced in the aftermath of Erie. Thanks so much.
Joel Alicea:
Well, thanks to you both. So I can imagine that maybe some members of the audience and some people watching at home thought that the title of this event was really interesting and listened to what you all just said and laying out in a very accessible way I think what the concepts of the general law are, but they might still be wondering, what’s at stake here? Why does this matter if you’re not a legal theorist?
Now, maybe the answer is just, because it’s important to be right about things, and that’s a perfectly good answer, but for those… we’re here at AEI, a public policy think tank. So what might be at stake in getting this right or wrong and thinking about what the general law was, and what might be at stake about bringing back a concept of the general law, even if it was the wrong concept, that prevailed right before Erie? Either of you starting on that.
Jud Campbell:
Yeah. So I think in part, it’s just really important if we want to understand what these earlier provisions of the Constitution meant or earlier ideas of law that animated really important precedents that we still care about, we need to understand how they thought. It doesn’t make sense to read a bunch of evidence that was animated by an earlier way of thinking and use modern paradigms to try to understand that evidence. And so, I think in large part, this is just really foundational for appreciating the aspects of our constitutional history that lots of folks care about today.
I think it comes up also not just for people who are animated by concerns about originalism, but folks who are animated by concerns about whether or not aspects of our law have become too sterile, whether or not they’ve become too texturalist.
Jud Campbell:
And so, general law is, I think, making a return in part because there are concerns about whether or not the more positivist, more textualist moves that dominate our current legal culture are ones that adequately account for the nature of law and adequately account for the diversity of different legal sources that one ought to look to in a legal system. So I think that’s been in part, what the return has been all about.
Jud Campbell:
And so, general law is, I think, making a return in part because there are concerns about whether or not the more positivist, more textualist moves that dominate our current legal culture are ones that adequately account for the nature of law and adequately account for the diversity of different legal sources that one ought to look to in a legal system. So I think that’s been in part, what the return has been all about.
I will say in terms of the kind of practical upshot. This really matters a lot to the way in which courts interpret things like the Privileges or Immunities Clause, because it has everything to do with what the scope of those rights are and everything to do with what the scope of state regulatory authority is. And so, if one is trying to take a historically grounded approach to these sorts of clauses, I think it’s enormously important to understand how people thought in the past.
Joel Alicea:
A.J.?
A.J. Bellia:
Yeah. No, I largely agree with everything that Professor Campbell said. If he’s right about the privileges and immunities clauses, then his work is bringing real clarity to the law in ways that matter quite deeply. And I would just add to that general point that this has been one of the most stable forms of government recorded human history, precisely because these new questions that arise, that keep arising, that are so foundational to the design of the system are being addressed in thoughtful and careful, and congenial ways. And just that very process is so important to the functioning of the government.
How large the stakes are as a practical matter, I think partly depends on how broad a view you’re willing to take of general law. For example, some who are arguing that there is a general law of interpretation that can develop as a sort of background system, could mean that we have new rules for interpreting the Constitution itself. And that’s a pretty dramatic thing. In sort of the more substantive doctrines of general law, we are talking about one of the issues we always talk about in constitutional law, which is the role of the courts in themselves supplying rules of decision versus the role of politically accountable actors in themselves supplying rules of decision.
And this issue brings right to center stage, that constant tension in American constitutional law. So I agree that the stakes are pretty significant depending on how broad a scope you would give to general law.
Joel Alicea:
Yeah. One thing that I think is really interesting about this whole scholarly development that comes out of both of your comments, is the crosscutting nature of this, both ideologically and jurisprudentially. Unlike a lot of debates in constitutional theory, this one does not break down along predictable lines. You have natural lawyers who are really interested in the return of the general law because the general law often incorporated natural law concepts, and Erie is often seen as a very legal positivist decision. So there’s some who want to reject Erie for that reason.
You have some who are pushing for the return of general law who are themselves legal positivists and are originalists, and they think that this is a better, more faithful understanding of the original meaning. You have some who are non-originalists who think that this is a way out of a sort of frozen-in-time understanding of meaning of our Constitution, and they’re pushing the general law’s return. It really is just a mixture of views on both sides here. And that’s one of the things I think has made it so interesting and fruitful.
But one thing that I find difficult as an observer of this debate, someone who has not himself kind of intervened in the debate is, I find it hard to figure out how do I assess who’s right? Because there’s a lot of overlap in your set of remarks at a very, very high level of generality, you both seem to agree about what the general law, what it means for something to be general law. You seem to be disagreeing about what was the content of that general law outside of the categories that you both agree on, things like law merchant and stuff like that. And the nub of the disagreement, it seems to me is about whether the common law is in or out of the general law.
Now, Professor Bellia says, “Well, common law only really starts to be incorporated into the general law in the way that say the law of nations is part of the general law. 1860s onward, during the Civil War and thereafter.” And you, Professor Campbell, are saying, “Well, no, actually this is really early. It’s like 1770s that you start seeing that shift.” I guess I could just read every opinion from the states and from the 1770s all the way through to see who’s right.
But if I’m not going to do that, how do I assess who’s right about this? Because we have two scholars who have clearly done this work and yet, they’re coming to very different conclusions about where the common law was in this debate. So help us figure out how to figure out who’s right about this.
Jud Campbell:
Yeah. I think it’s really hard because at the moment of transition that I described in the mid-1770s, there’s nobody who is theorizing about the question. And in fact, the transformation has happened silently in the background. It’s a byproduct of the fact that we’ve moved to a understanding of the Atlantic and the Potomac and the Delaware, and the Hudson as now being jurisdictional boundaries between, at least quasi-sovereigns rather than between localities. And that shift has nothing to do with theorizing about the common law. So people are just not thinking about that.
And that means that what you’re going to end up with is, at moments where there’s pressure for one reason or another on the character of the common law, where people actually have some political reason to care about this question, there’s very likely going to be divergence. And that’s exactly what you see when this question of whether or not we have general common law comes up in debates over the Sedition Act, for instance. And so, Republicans start embracing the idea that we have independent sovereign states and that they’re the ones who are in control of the boundaries of speech and press freedoms, and that therefore, the federal government simply can’t have any power over identifying those boundaries. It’s all totally up to the states.
And the judges and other federalist commentators say, “What are you talking about? We can identify the speech and press freedom boundaries by looking to the common law, the common basis upon which we have built our entire jurisprudence.” And so, that’s a moment at which the issue starts to matter to people in a way that they start to theorize about it, and they start disagreeing about it. And I think it’s a really difficult question for somebody who’s an intellectual historian to say, “Well, who’s right about that?” Because that’s actually a question of law. It’s a question that requires some identification of the criteria upon which you identify right and wrong answers about law.
And so, I can’t offer that because that’s not my thing, but I do think there’s this kind of latent tension in thinking about the earlier idea of common law that emerges as a result of the story that I tried to tell about the revolution that then has to get worked out, and it gets worked out by judges in different ways.
Joel Alicea:
But very quickly, before I go to Professor Bellia on this. Maybe I’m misunderstanding your point here. But you do think that Professor Bellia is mistaken as a historical matter in saying that the common law wasn’t part of the general law until really the 1860s, right?
Jud Campbell:
I think it’s underpinning the way that folks who draft the Privileges and Immunities Clause and the Privileges or Immunities Clause think about what they’re doing. So to the extent that the argument is the general common law by its very nature can only include cross-jurisdictional matters like the law merchant or what have you. Or maybe not by its nature, but just as a matter of historical fact, how did people think about this? I think that’s not right.
I think that this was an available way of thinking about general law, that it embraced aspects of the common law, the rights of Englishmen as being general law, and that parts of our Constitution don’t make any sense without that. And so, I do take a stronger view as to how do we make sense of seminal parts of our constitutional history? Yes, seminal parts of our constitutional history don’t make sense without it and understanding that the general law included aspects of property law, contract law, and so on.
Joel Alicea:
Professor Bellia?
A.J. Bellia:
Yeah. No, it’s a difficult question. And I think the starting place, and this has been a feature of this debate over the return of general law, a starting place is identifying where you actually agree or where you’re coming from a problem from two different angles, but actually arriving at the same place. So I’m going to arrive at the exact same place as Professor Campbell and say, there are certain basic principles of the common law that a state may not change, basic property rights principles, basic contracts rights principles, basic access to justice rights principles. Because maybe I would say not because they were general common law, they were a trans-jurisdictional law that nobody could change, but because they were so established as more of a majority rule that certain provisions of the Constitution make no sense unless these ideas are fixed.
And maybe that’s a different way of conceptualizing the problem, but maybe it leads us to the same place. So then the way to identify our disagreements, sometimes you can identify disagreements in constitutional law by starting at a very high level of theory and seeing where you differ. This isn’t really one of those. I think this is one of those where you actually have to kind of confront problems. So take Erie Railroad versus Tompkins, says in anything to resolve right here. But say there is a basic underpinning of US constitutionalism or US constitutional provisions that a state must give some redress for certain types of harms to person or property.
Does that go so far as to define what the duties are that a railroad owes to a trespasser on an adjacent right of way? Or is that something that really is up to the state of Pennsylvania to decide? The federal court was wrong to swoop in and say, “That’s not fair game for state governance,” because that’s part of the sort of fundamental right Professor Campbell’s talking about or not. I think one way of going forward is to really identify what is it we agree about, and then to through very specific problems, try to tease out where the fundamental disagreements are methodologically.
Joel Alicea:
So I guess that approach sets up, well, another question I had for you, which is, let’s say that tomorrow the Supreme Court overruled Erie, which for Professor Steven Sachs at Harvard would be a very happy day since he’s been pushing for this for a long time. What happens the day after that? Again, Professor Sachs has argued that it would not actually be as disruptive as people seem to think it would be, that it might actually make sense of a lot of our areas of law that right now are hard to figure out.
So maybe taking up your point, Professor Bellia, maybe by focusing on what would things look like if Erie overruled, could help us understand whether there really are some significant disagreements here conceptually and working back to those disagreements because of what would look different on the ground. What do each of you think about this? What would be different if Erie were overruled? Start with Professor Bellia on this one.
A.J. Bellia:
Yeah. I think it depends on what aspect of Erie you overturn. I think there’s two aspects of Erie. One aspect of Erie is the jurisprudential language that there is no such thing as unwritten law that doesn’t derive from the act of a particular sovereign. I think that was overruled the day that Erie was decided in this Hinderlider case where the court applied borrowed general law and applied it as federal common law. I actually don’t think anybody really believes that today. Another law professor once used this example, “I made a fateful decision one time, which was that on my child’s first day of kindergarten, I made lunch. Then I made it the next day and the next day and the next day. And I did it for two years, and then one day I didn’t make it. Where’s the lunch? Well, it’s not my job. It is your job. It’s a custom that just organically developed. It’s the law of the house.” So I think that unwritten law doesn’t exist unless it’s tied to a sovereign, is something that already is kind of been overruled. So then the question is, well, do you overrule this idea of Erie that state law can only be displaced by the Constitution, laws, or treaties of the United States? If you overrule that, then you would immediately need some new Erie defining what is the breadth of general law or general common law that now can do this.
And that would be subject to widespread disagreement, I would think. I think there was in his general law. Professor Campbell thinks there was in his general law. We have disagreements about this. Others have even more dramatic disagreements than we have. So I think the answer to that question is, it would depend on what the new Erie ended up being regarding what the operative scope of general law actually is.
Jud Campbell:
Yeah. I think it’s really hard to identify without a method for knowing how you identify general law. And so, one of the questions that comes up in these debates is not just the one that we’ve been talking about, which is what is the domain of general law. Another question that comes up frequently is, what is the method by which you identify general law? So we have a whole bunch of jurisdictions that have been proceeding for 100 years without a robust conception of general law. How do you identify general law that exists in 2026 absent a legal culture that knows how to do that sort of analysis, that’s familiar with it, that treats that type of reasoning and outcome as legitimate? And that’s a really hard problem to grapple with.
And if you think that you can do general law in the way that you did it before, without grappling with the insights of legal realism and the way that that has forced people into a new way of thinking about what judicial decisions are by their very nature, I think you’re kidding yourself. I think we’ve just changed how we view the nature of law. And unwinding that requires deep cultural change. I’m not going to say that’s impossible, but it can’t be top down. That requires a legal culture that’s willing to accept as legitimate, an older way of thinking about law. Maybe it’d be better in some sense to go backwards to that older legal culture, but it’s certainly not up to any particular judge to affect a cultural shift like that. And that could matter a lot.
There are a lot of specific doctrines that, of course, could change if you have a different view of general law. But one thing that I’ll just highlight is, if you have a conception that at various aspects of our Constitution make reference to general law, including things like the Privileges and Immunities Clause, one of the things that it would do is it would mean that it is not up to the US Supreme Court to establish the exact parameters of all of these different rights that people are constantly litigating about. So if you have a general law framework for thinking about the rights to speak, keep and bear arms, engage in one’s own religion and so on, the interpretive process of figuring out what those rights entail is no longer the process of figuring out what our national rights are.
It’s a process that has to be worked out through multiple institutions, including various state-level institutions, and also potentially through Congress, through democratic decision making. And so, that would lead to just a very fundamentally different outlook about how we think about the authority to resolve questions of general law, sorry, of fundamental rights because it would mean… Remember, as Professor Bellia mentioned at the very outset, one of the fundamental features of general law is that it lacks an authoritative interpreter.
And so, that would affect a very fundamental change in the way that we think about a lot of these areas of law where we just presume… The very foundation of modern rights jurisprudence is this assumption by the Warren Court that the national judiciary is supreme in the exposition of what our fundamental rights are. And so, that would be a monumental shift in how we think about that interpretive authority.
Joel Alicea:
That actually leads right into the first question, which comes to us online, from Joshua Craddock, the Deputy Assistant Attorney General at the Office of Legal Counsel. And the question is for Professor Campbell, “If the Constitution’s privileges or immunities clause protects certain fundamental rights recognized by the general law as in Corfield versus Coryell, how does that map onto the fundamental rights recognized as an aspect of substantive due process under Glucksberg? Do the general law rights of Englishmen basically overlap with those rights that are deeply rooted in our history and tradition and implicit in the concept of ordered liberty, or are they really quite different?”
And I’ll just say, I think that this is obviously most directed to you, Professor Campbell. But I think Professor Bellia, since you said that you thought some of these rights and the conceptions of them might just be so baked into the way things were understood, that they’re kind of picked up by the positive law because the positive law wouldn’t make sense without them. You might have thoughts on this question too, just maybe in a different framing than what Professor Campbell will have. So please.
Jud Campbell:
Yeah. I think when you’re trying to identify judicially enforceable limits on state power, you need some sort of methodology that approximates at least if you can’t recover it in full, how people would have thought about general law in the past. And it seems to me that something like Glucksberg is doing that. It’s trying to get at the notion of a kind of foundational, customary body of recognized principles that limit state power. How do we do that absent a notion of general law? Well, we look at what sort of traditions are widespread and relatively uniform over a long period of time and understood to be fundamental, and so on.
So I think that’s probably right, that the Glucksberg approach is getting you at something like that. I guess I would say that doesn’t mean that the domain of the Privileges or Immunities Clause is limited to those sorts of rights. So as a matter of what judicially enforceable rights we have, it might be so limited as a matter of what the rights themselves entail, it might include basic rights to liberty and property. So it’s not the case that the fundamental rights that people identified as the rights to Englishmen are only those things that are judicially enforceable.
There’s this notion earlier in our history that fundamental rights include things that are legislatively regulable and promotion of the public good. So with that caveat, I think that something like the Glucksberg test is more or less giving you at the way in which we might cash that out in a modern framework.
Joel Alicea:
Anything to add, Professor Bellia?
A.J. Bellia:
Yeah. I would just briefly add that, I mean, one thing I think the Glucksberg type test is trying to get courts out from under is one of the challenges that a return to general law would generate and say more a living approach to substitute process would generate, which is, if you’re looking across jurisdiction at fundamental legal precepts, which jurisdictions count and what exactly do you have to find from some preponderance of the counting jurisdictions in order to say that this qualifies as substantive due process protected right, or is it general law protected right?
Which I think just brings one right back to some of our usual constitutional debates over virtues of historical fidelity and certainty versus accommodation and evolution.
Joel Alicea:
So going into the audience, we have a question here, and if you wouldn’t mind waiting for the microphone, identifying yourself. And for everybody, keep your questions brief because we actually have to conclude in about seven minutes, so please.
Jo Freeman:
My name’s Jo Freeman. Neither of you mentioned Blackstone. My understanding that his treatise on the English common law, which was published in 1776, became the basic textbook for legal education and the application of the English common law for decades to come. So how did Blackstone get left out of your disposition on general law?
Jud Campbell:
Yeah. So Blackstone is a really important resource for the founders in thinking about these principles of common law. And the way in which you learn law at that time relates to the sort of legal culture that you’re going to have. So if the way in which you learn law is by reading books that lay out general principles of jurisprudence, so people like Vattel and Pufendorf, and so on, who are writing about the law of nations and laying things out in sort of systematic terms tied to underlying principles of natural law. And then you learn about your own jurisdiction’s law by reading general sources like Blackstone. What the legal culture is inculcating you to think about is law as something that is general.
Now, it’s not to deny that there’s local law. Blackstone acknowledges local customary law, and he has a long discussion of how that interacts with the common law and how it interacts with statutes, and so on. But I think it’s an important point to identify that legal education at this point leads people to think about law in its nature as the sort of thing that is capable of, and often does cross jurisdictional lines. That said, Blackstone is a little weird in some ways. So Blackstone is insistent that English common law is English and that the colonists are not entitled to it. So there are ways in which the colonists resist certain features of Blackstone.
And then he gets repackaged in the 1803 edition published by St. George Tucker in a way that leads one to think that the common law is, as Blackstone suggested in the passages talking about the conquest of the Americas, wholly local law. So Blackstone actually, the 1803 St. George Tucker edition actually has an appendix to it that talks about the American reception of the common law and specifically defends the view that Professor Bellia laid out, saying Americans inherited the common law by states, not as an agglomerated nation.
And so, we ought to view the common law as sure, it has some common components across state lines, but it is fundamentally the law of each independent sovereign state. And so, I think that that’s a reading of Blackstone that’s available as a way of thinking about the nature of common law. So I think in general, I would say Blackstone and the process of legal education in a common foundation of sources helps facilitate a general common law approach, but that it’s not inevitable. And St. George Tucker, I think is a nice example of why it’s not inevitable.
Joel Alicea:
Anything to add, Professor Bellia?
A.J. Bellia:
Yeah. I’ll just briefly add that if I didn’t mention Blackstone, my co-author and I have relied on Blackstone in our work because the way that I define general law is one of the uses of general law that Blackstone uses in his commentaries. He said that the general law, which is the law of nations, which is adopted by the common law of England, includes the law of state-state relations, the law maritime, general commercial law. And so, Blackstone, I think provides some background support from English understandings about that view of general law as part of the common law of England.
Blackstone also talks about the general common law, which was the common law of the British Empire generally, distinguishing that from local law. And of course, I’ll leave that to Professor Campbell, he already addressed that. But I think Blackstone is a valuable resource, both for what may be descriptive and helpful for US practice and what may be something useful by way of contrast to a new legal system that consciously or subconsciously in certain respects, went its own way.
Jud Campbell:
Yeah. The other thing I’ll just add here, I laid out the influence of Blackstone. But an important thing that’s missing from lawyerly education in the 18th century, is extensive reliance on case reports because each American jurisdiction just doesn’t have case reports. And so, one of the things that would make it especially difficult to return to this earlier idea of general law is that we now live in a world where there’s just so much published judicial case law where we can very easily identify minute differences in the way that judges in different jurisdictions approach different types of questions.
And so, it creates a different legal culture. It creates a different way of training lawyers, and so on. And so, I think that has some bearing on how we think about these questions now.
A.J. Bellia:
Can I add to that?
Joel Alicea:
Yeah, of course.
A.J. Bellia:
I think that the lack of case reports in the first decades following the founding is an enormously important phenomena. And I actually think it’s one of the reasons why Swift versus Tyson became the Swift doctrine. By Swift, there were more reporters available, and therefore in that case, it was evident that the New York courts had a different understanding of general commercial law than Joseph Story had in mind and that certain English sources had in mind. And so, whereas Swift may not have been a departure from past practice, it did kind of raise eyebrows because, huh, we now have a general commercial law that the Supreme Court is applying that doesn’t line up with the reported decisions of the New York courts.
And the other thing I’ll add on that is that, well, since the founding, you will find cases, and this is just one more complicating factor, you’ll find many cases from the founding through Swift where federal courts are applying the kind of general common law that Professor Campbell is talking about. But there were these acts, many times they’re overlooked, called the Process Acts of 1789 and 1792 that gave specific congressional authorization to federal courts to apply state forms of action in cases at law, equitable forms of proceeding, admiralty forms of proceeding.
It was an authorization, but where is that law to be found? It wasn’t to be found in specific state reports. It was largely to be found in these more general sources like Blackstone. So it’s a big and important dynamic.
Joel Alicea:
Yeah. We might have time for one more question. I’m going to call on my colleague here at the front.
Kevin Walsh:
Hi. Kevin Walsh, Catholic University, Columbus School of Law. My question is about the relationship between your positions on general law and maybe Article III. So as Professor Bellia was describing the things that were definitely within general law, I started thinking about the categories of cases in Article III, Section 2 that were all cases categories to go into federal courts. So arising under jurisdiction, affecting ambassadors, and then admiralty.
And then I thought about the Supreme Court’s original jurisdiction, affecting ambassadors and those in which the United States shall be a party. So the states being a party, that would also be governed by general law. And so my question is, could Article III be seen as a solution in some ways, to the problem that was recognized that general law in some sense would depend on a supreme interpreter and the Constitution providing for that problem by federal jurisdiction to cases where general law would come up?
Joel Alicea:
So before we get to that, that’s a big question, Kevin. And I want to give both of our speakers a chance, but I will say, if we can keep this relatively brief, because we need to conclude in about five minutes. So please.
A.J. Bellia:
Yeah. So brief. I think Article III is very good evidence that in certain categories of cases, federal courts were expected to apply general law. But I don’t think it’s a complete answer because in some of those cases, general law was not something that the states could control. The states could not control the rights of ambassadors. That was a federal matter.
But when it came to other categories like the general commercial law and diversity cases, that was something that I think states understood themselves to be able to, and it was generally understood states could opt out of, and they did opt out of it, which was one of the dynamics that created the Erie problem. So I think it’s evidence, but it doesn’t necessarily solve the problem of the status.
Jud Campbell:
Yeah. I think it provides an institutional answer to some of the problems that existed in the 1780s. It provides, in some cases, a final interpreter. What I would say is, the question of who is the final interpreter is a different theoretical question than the question of who is the supreme interpreter. And you could have, this is not inevitable and realists would deny it, but you could have the view that the Supreme Court in those cases is supposed to be finding the law, not making the law. And that does create a fundamental difference between how people generally now think about the nature of common law, as opposed to how people in the past thought about it.
Joel Alicea:
Well, with that, please join me in thanking our panelists.
