The James Wilson Foundation on Natural Rights and the American Founding

“Common Good and Common Belief in the Common Law” — Timon Cline

Analyzing past Supreme Court decisions on religion and public health, Timon Cline argues that the best judges consider public opinion as they attempt to rule in favor of the common good.

Some excerpts:

“The simple conclusion to be drawn from LockeViemeister, and Cole is that cognizance of the common good is a matter of prudential governance and that the essence of republican government is wrapped up in the relation between legislating for the people. So too should the courts take judicial notice of it.”

[W]hen prior courts invoked common sentiment or common belief they were, by extension, invoking the public or common reason, calling legislatures to pass laws in accordance therewith. By extension, courts implicitly acknowledged that legal meaning was predicated on more fundamental public morality.

Obviously, common sentiment is not totally static; neither is the common law or scientific and medical consensus, for that matter. Potential for flux, and especially variation in law from one political community to the next (e.g., states), should not induce panic or diminish confidence in law itself. Indeed, this dynamic and the interdependence between common sentiment or belief and the common good connects back to the very essence of human lawmaking in context.

Anything governing human life will inevitably mirror the metaphysical contingency of humans themselves. ‘Life, and hence law, is radically more contingent than a game. Law is applied to contingent matters, which vary greatly across time and space.’ The particulars of each community as well as the circumstances themselves must be examined closely when attempting to legislate and judge for the common good. Cognizance of the common sentiments of the populace—past and present—is intricate to that process.

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790