By: Douglas E. Edlin
PDF: The Constitutional Logic of the Common Law
This Article uses two concepts from philosophical logic, the transitive property and syllogistic reasoning, to examine the history and theory of the common law. More specifically, the Article uses the transitive property to challenge the claims of sovereignty theorists that parliamentary supremacy is truly the most fundamental historical and theoretical basis of the British constitution. Instead, the transitive property helps show that the history and theory of the common law tradition has long provided a role for independent courts in maintaining the rule of law as a foundational principle of the British constitution. The Article then closely analyzes the reasoning of Marbury v. Madison to trace through two syllogisms the legal bases for the Constitution’s and the courts’ authority, demonstrating that Chief Justice Marshall grounded these sources of authority differently in his opinion. The Article uses these two syllogisms to challenge the view that the courts’ exercise of judicial review must depend, logically or legally, on the existence of a written constitution. Taken together, these two elements of logical reasoning help show historical and theoretical affinities between the US and the UK constitutional traditions that run deeper than the existence of parliamentary sovereignty in the United Kingdom or a written Constitution in the United States.