Will Baude and the General Law

For our maiden voyage on “Law Office History” we welcome aboard Will Baude of the University of Chicago. After exploring his heady days as an Institute for Justice summer clerk we venture into the arguments he, Jud Campbell, and Steve Sachs made in the pages of the Stanford Law Review a couple of years ago: that the framers of the Fourteenth Amendment wrote it with the “general law” in mind, especially the rights that “law” was understood to protect. Will sets the stage with the well-understood history of the general law and the world of Swift v. Tyson. But then he explains how that not only included common law rules of things like torts and contracts but rights that Americans possessed against their governments. He and his co-authors’ provocative claim is that these rights could be enforce in federal court before the Fourteenth Amendment but because of the courts’ limited jurisdiction these issues only came up sporadically. Thus, the Fourteenth Amendment did not make those rights constitutional rights per se but rather provided a new venue—federal courts—in which they could be enforced against the states. This makes sense, goes the argument, of some contradictory things said at the time of the Amendment’s adoption. Various other topics arise. Your host challenges Will a bit on the differences between these general law rights and state constitutional rights and whether one might be being mistaken for the other. The also discuss how—if Will, Jud, and Steve are right—we should interpret the Fourteenth Amendment today, now that Erie has consigned the general law to the ash heap of history. (Or has it?) In addition to the article, the conversation also addresses the ongoing rumble between originalist law professors and history-department historians on what questions we should be asking when we engage with legal history. That’s a subject that’s sure to come up on future episodes. Your host then closes with a few words about why IJ is launching yet another podcast. Click here for transcript. General Law and the Fourteenth Amendment Swift v. Tyson Tradition, Originalism, and General Fundamental Law Erie Railroad Co. v. Thompkins