Sir Edward Coke (1552-1634): the first constitutional anti-originalist?

I just came across something utterly fascinating in the course of some research on the history of the rule of law.

Coke was the leader of those who interpreted Magna Carta as a charter of liberty for all the English people, not merely as a charter of different liberties for different classes. The revival of interest in the Charter had already begun under Henry VIII, but Coke seems to have appreciated better than most others its value as a weapon against the doctrine of the divine right of kings. ‘Let us take heed what we yield unto,” he exclaimed, “Magna Carta is such a fellow that he will have no sovereign.’

His interpretation has been criticized by English historians and legal positivists on the ground that the document was never intended by its authors to be read in this way. [Argument that the text could nonetheless support that reading - pg.] … The fact that the general acceptance of a liberal reading of the document had to wait for Coke’s advocacy and the spread of printing and literacy is hardly a damaging criticism of Coke.

F.W. Maitland went to the heart of the matter when he explained that historians who criticized Coke and others for their anachronistic descriptions of early law misunderstand the use that the common lawyer [meaning lawyer in the common law system - pg.] makes of history. The lawyer is not depicting mediaeval law as it was in the Middle Ages, he is helping old legal principles to evolve so that they can suit mdoern facts:

The process by which old principles and old phrases are charged with new content, is from the lawyer’s point of view an evolution of the true intent and meaning of the old law; from the historian’s point of view it is almost of necessity a process of perversion and misunderstanding. Thus we are tempted to mix up two different logics, the logic of authority, and the logic of evidence.

Coke’s view of ancient legal principles undoubtedly was that they had to develop as society developed; he was fond of the saying that ‘Out of the old fields must grow the new corn.’

Geoffrey de Q. Walker, The Rule of Law: Foundation of Constitutional Democracy (Melbourne University Press, 1988),* p. 115-116 internal quote from F.W. Maitland, “Why the History of English Law is not Written,” in H. Fisher, ed., Collected Papers of Frederick William Maitland (1911).

Incidentally, Coke’s treatises were part of the legal training of the American founders, and, at least according to Wikipedia (any competent historians reading want to confirm?), John Adams and Patrick Henry used his treatises to argue for the revolution. He also ruled in Bonham’s Case, which is the seminal case creating the power of judicial review in the English system. And he participated in the great Petition of Right, in which Parliament imposed basically a forerunner of the U.S. bill of rights on those nasty Stuart kings.

One wonders to what extent anti-originalism, through Coke, was part of the U.S. legal culture at the time of the founding. I’m sure I’ve read arguments like this before, that the framers were anti-originalist, and that this constitutes a defeater for originalism for the obvious reason, viz., an originalist interpretation of the constitution constitutes a denial of the original public meaning of the framers.** Anyone want to remind me where this argument shows up?

In other words: take that, Scalia!


* Which I cannot recommend as a general work of scholarship on the rule of law, as it’s mostly extravagant normative claims and rants against CLS and Kids These Days, but it does have an excellent historical review, from which the above is taken.

** More sophisticatedly: originalism can be applied on two levels: a) we can be faithful to the original public meaning of the text in the constitution, and/or b) we can be faithful to the original public meaning of the act of constitution-making itself at the time of the framing. But if (per speculation above) anti-originalism about constitutional text was the dominant position in the legal culture at the time of the framing, then b) requires not-a). Full-on originalism would presumably require both a) and b), which would be impossible under such circumstances, and the best originalists of the Scalia breed could do is deny that b) is required, for some obscure reason.


2 Responses to “Sir Edward Coke (1552-1634): the first constitutional anti-originalist?”

  1. x. trapnel Says:

    The “B, & B -> ~A” claim was made, most famously, by Jefferson Powell in his 1985 article “The Original Understanding of Original Intent.”

    Most contemporary originalists deny that B is required because their originalist flows from considerations either inherent in the nature of democratic authority, or in the nature of textual interpretation, or (rarely) as logical inferences from positivistic current practices. Originalism is silly, but they’ve had a quarter century to digest this particular lesson.

  2. Paul Gowder Says:

    Ah. Thank you. I knew it was out there somewhere.

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