Making a “Hash” Out of Law and the U.S. Constitution

Mar 16, 2023 by David Fowler

Making a “Hash” Out of Law and the U.S. Constitution
Most lawyers in America need a “remedial legal education” according to a legal scholar with whom I’ve been working in recent years. His point was proved by remarks made last week on the Tennessee House floor by a Republican Representative who is a lawyer. When you read what he said, you may laugh, but it is a serious matter. In this case, it makes a “hash” out of law and the U.S. Constitution. 
Before I address what was said by this Republican member of the Tennessee House who is a lawyer, I once was not too unlike him. So, since my purpose is to educate not ridicule, his name is not used. I am just thankful I got the remedial education I needed.
The Republican legislative lawyer spoke last week in opposition to an amendment by Representative Bud Hulsey filed to House Bill 1. The legislation was sponsored by a different lawyer to address invasive medical treatment given to minors for gender dysphoria. 
Hulsey’s amendment would have added language to the bill stating that the legislature’s purpose was “in securing a minor's fundamental right at common law to be protected from physical harms to their body.”

The Response of the Lawyer Representative

The objecting lawyer said he would support the amendment but for the inclusion of the words “common law.” The reason, the lawyer Representative explained, is because “there is no common law.” 
Less than a minute later he said, “Case law created our common law,” which I take to mean that there is such a thing as common law withstanding his previously stated denial. 
Then he said, “We”—referring to the legislature—“are to create that common law,” which again sounds like common law exists but now is it created the by legislature, not “case law.”
Finally, he closed by saying, “The common law does not exist,” which contradicted his two immediately preceding statements.
That such incoherence got a smattering of applause from his colleagues, rather than a few laughs, should be troubling enough. But onto the remediating legal lesson and the constitutional consequences for this legislation.

The Remedial Education Lawyers, Judges, and Citizens Need

I would juxtapose the lawyer Representative’s remarks on common law to those made last May by a nationally recognized professor of common law (yes, he gets paid to teach what doesn’t exist) to a group of highly educated and influential lawyers in D.C.  What he said awakened many of these lawyers to their own need (he later reduced his remarks to writing): “Let’s start by stating clearly what common law is not. Common law is not judge made law.” 
That shoots down the representative lawyer’s claim that there is no common law or, if there is, that it is created by (judicial) “precedents.”
The professor continued:
That distortion of the common law, invented by Oliver Wendell Holmes Jr. and then popularized by the American Legal Realists in elite law schools in the 20th century, has dominated American legal education for one hundred years. But it makes a hash of the concept of law, adjudication, rights and duties, and much else.
Note that the professor said this lawyer Representative’s statements to his legislative colleagues were a “distortion of the common law.”
But worse than that, the professor said this Representative’s statement made a “hash” out of the “concept of law” itself!

What Making a “Hash” of Law Looks Like

For example, last year this same lawyer Representative told the House Judiciary Committee that his clients had the benefit of the attorney-client because he was a licensed attorney.  My head nearly exploded.
I sent the audio of the Representative’s statement to the professor who wrote back the following:
Surely he must be aware that the attorney-client privilege predates state licensure of attorneys in American law by several centuries, and that other confidential privileges, such as the clergy privilege, attach to relationships in which neither party is licensed by the state. Husbands and wives enjoyed testimonial and other legal privileges long before states began issuing marriage licenses. 
In other words, if this attorney knew anything of the history of the law that he practices, he would have known that he was wrong by “several centuries.” 
This is called “making a hash of the concept of law."

The Relationship of Common Law to Statutes

Because this lawyer Representative was taught a wrong view of the common law, he did not understand the nature of his legislative responsibility and the relationship between that responsibility and the common law. Legislation doesn’t come from a world void-of-any-law vacuum but from the common law.  
William Blackstone, who has been described by the United States Supreme Court as “the preeminent authority on English law for the founding generation,” and who was cited as authority 13 times in the recent reversal of Roe v. Wade, said, “Statutes . . . are either declaratory of the common law, or remedial of some defects therein.”
In Munn v. Illinois, the United States Supreme Court said the same thing, “[T]he great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.”
In fact, had the lawyer Representative understood common law and thought more clearly about the language of the amendment, he would have seen that its purpose was “securing” the right the common law had already provided. Government is created to protect the rights we already have, not create them!
The amendment was providing the legislature a means to do what it is supposed to do—protect rights we already have. More specifically, it was to “remedy” a situation in which people thought the common law right to sue for injuries to their bodies did not apply because it was being mislabeled as “health care” and they had “consented” to that care. More could be said about the matter of consent, but I will close with one last point.

How Common Law Protects the Statute from Constitutional Challenge

The lawsuit that is sure to come will claim the legislature has unconstitutionally interfered with the right of parents to make medical decisions for their minor child.  It will also be claimed that the legislature has denied persons the constitutional dignity of getting to “define and express their identity” per the U.S. Supreme Court’s decision in Obergefell v. Hodges.
But if the law had been cast in terms of securing the common law right to be free from injury, the constitutional question could be framed this way: Per Munn v. Illinois, does a state legislature have the authority to “remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances?”
If the answer to this question is no, if a state and a legislative body no longer have authority to secure to its residents the fundamental pre-political right to be protected from and compensated for physical injuries, the game is over. We will have made a “hash” of both law and the Constitution.

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