The movement claim that Swift v. Tyson establishes the Constitution as 'predicated upon the common law' and federal courts as applying common law as the foundational basis of federal jurisprudence is unsupported
The movement proposition
Treatise #2’s historical claim H5 — that “the Constitution presupposes and is predicated upon the common law” — rests primarily on Swift v. Tyson, 41 U.S. (16 Pet.) 1, 11-13 (1842). Beers reads Swift as establishing that federal courts apply common law as the foundational basis of federal jurisprudence, and uses this reading to support the broader claim that common law (rather than positive-law statute) is the operative legal system within which the Constitution should be interpreted.
The claim is load-bearing for several of Beers’s downstream moves. If the Constitution is “predicated upon the common law,” and common law (in Beers’s reading) is bible-founded and pre-legislative, then properly-enacted statutes that depart from common-law procedure can be treated as departures from the constitutional framework itself. The reading anchors Treatise #2’s broader argument that “law of the land” excludes statutes (H4) and the corpus’s broader argument that positive law operates outside the legitimate framework Beers identifies.
The authority
Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) was a diversity-jurisdiction case decided by Justice Joseph Story for the Supreme Court. The substantive question concerned § 34 of the Judiciary Act of 1789 — the Rules of Decision Act — which provided that in cases at common law in federal court, “the laws of the several states” should be regarded as the rules of decision. Story’s holding: “the laws of the several states” did not include state-court interpretations of general commercial-law principles. In commercial-law diversity cases, federal courts could develop their own “general” federal common law independent of state-court rulings. The case became the doctrinal foundation for federal general common law for nearly a century.
The “predicated upon the common law” language Beers cites at 16 Pet. 11 appears in counsel’s argument (Dana’s brief for Swift), not in Story’s opinion. The Cornell LII text:
“the constitution pre-supposes, and is predicated upon the existence of the common law.”
“In common parlance, the word ’laws,’ in the plural, means, and did mean in 1789, legislative enactments.”
These passages are part of the brief’s argument to the Court, preserved in the official reports along with the opinion. They are not the Court’s words. Counsel’s argument is not authority for any proposition.
What overruled Swift
In 1938, ninety-six years after Swift, the Supreme Court overruled it. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), held that federal courts sitting in diversity must apply the substantive law (statutory or judge-made) of the state in which they sit. Justice Brandeis for the Court:
“There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts.”
The federal-general-common-law doctrine Swift established was extinguished. Erie is one of the most consequential federal-jurisdiction decisions in American legal history and is foundational doctrine taught in every American law school’s first-year civil-procedure course.
What this means for Beers’s argument
Two independent problems with the citation, either of which alone is dispositive.
The cited language is from counsel’s argument, not from the Court’s opinion. Even taking Swift on its own terms as good law (which it is not), the specific phrase Beers relies on is not Story’s words. It is Dana’s brief, preserved in the reports. Counsel argument has no precedential value. A reader checking the cite at 16 Pet. 11 will find argument-of-counsel material, not Court reasoning.
Swift v. Tyson was overruled in 1938. Even if the language Beers wants were in Story’s opinion (which it isn’t), the doctrinal proposition that federal courts apply common law as the foundational basis of federal jurisprudence has been dead law since Erie. There is no federal general common law. Federal courts in diversity apply state substantive law; federal courts in federal-question cases apply federal statutory and constitutional law as interpreted through case-law gloss. Neither of these is the “common law as foundation” framework Beers reads into Swift.
The two problems compound. Swift doesn’t actually say what Beers attributes (counsel argument, not holding), and even if it did, the saying would not be operative law (overruled by Erie). Citing Swift in the way Beers does — without acknowledging Erie or the counsel-argument provenance — is a threshold doctrinal-research failure rather than a close interpretive question.
Counter-authority
Erie Railroad Co. v. Tompkins (1938) is the dispositive counter-authority. The doctrine has held for 87 years and is part of the canonical federal-jurisdiction framework taught in every U.S. law school. The federal-common-law doctrine Swift established does not exist in current law.
The broader doctrinal landscape on the common-law-vs-statute relationship is also against Beers’s reading. Federal courts apply federal statutes as written, with constitutional review where statutory provisions are challenged. Common-law principles operate within state-law systems (where state courts have authority to develop them), within federal admiralty law (where Congress has authorized federal common-law development), and within narrow specific contexts where federal common law survives (interstitial federal common law in interstate disputes, federal-officer immunity doctrine, certain remedies). None of this resembles the Swift-era general federal common law Beers’s framework invokes.
Verdict
Unsupported. Swift v. Tyson does not establish what Beers attributes to it. The “predicated upon the common law” language is from counsel’s argument, not from Justice Story’s opinion. And the doctrinal framework Swift supposedly supports — federal courts applying common law as foundational federal jurisprudence — has been overruled doctrine since 1938. Erie Railroad Co. v. Tompkins is the dispositive answer: “There is no federal general common law.” Citing Swift without engaging Erie is a threshold-level doctrinal-research failure.
The legitimate scholarly literature on common law and constitutional interpretation lives in serious territory — the originalist debate about pre-existing rights, the federal-common-law-survives-Erie literature (Henry Friendly’s In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964); subsequent commentary), the comparative civil-law/common-law scholarship — but none of that literature supports the Swift-as-live-authority reading Beers’s framework needs.
Sources cited
- Liberty — Byron Beers