Volume 98, Number 6

December 2023

Originalism and the Problem of General Law

Giancarlo F. Carozza

In the early days of our Republic, federal judges explicitly relied on general law—an unwritten set of gap-filling principles—to drive their decisions. This practice ceased after Erie Railroad Co. v. Tompkins, in which the Supreme Court formally abandoned the concept of general law. But the current Supreme Court, with its emphasis on originalism, has revived general law by interpreting several constitutional provisions as codifying the general law of the Founders. To determine the content of the Founders’ general law, it conducts an inchoate version of the general law analyses of the past: It surveys a large corpus of legal and historical sources from multiple jurisdictions, none of which are authoritative, and from them distills a general principle which provides the rule of decision in the case at hand. The Court’s sub-silentio adoption of the general law analytic method is troubling for originalists and non-originalists alike.

This Note has three basic aims, all of which are novel contributions. First, it delineates the precise methodology used by seventeenth- and eighteenth-century judges to determine the content of the general law. Second, through careful study of Second Amendment and Confrontation Clause jurisprudence, it recognizes the deep similarities between the historical and modern originalist general law analytic processes. And third, it outlines the practical difficulties and internal tensions that arise from the Court’s originalist revival of general law.