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“Time Immemorial”: Stinneford on the Age of Legal Practices

I’ve been reading the work of Professor John Stinneford, concerning the role of custom and tradition in determining the meaning of “cruel and unusual punishments” under the Eighth Amendment. It is one of John’s important insights that the meaning is to be determined by practice or general usage. And one of the issues that crops up in determining usage is antiquity, not only in the sense of actual age but of something like untraceable age. In the common law, the phrase, “time immemorial” often is used by learned commentary to describe this second sense of age. The best sort of age, in the law, is not the kind that we, today, can map. It is the kind that transcends our capacity to pinpoint. Here is a bit from Professor Stinneford’s excellent article, Experimental Punishments (notes omitted):

The common-law notion of long usage contains a principle of legal development over time. If a once-traditional practice falls out of usage for multiple generations, it loses its status as presumptively reasonable. If revived, it is to be treated as a new practice and compared to the tradition that has developed up to that time. Similarly, before a new practice can be considered “usual,” it must gain universal reception within the relevant legal community, and it must sustain such universal reception over a period of multiple generations. Only at that point can the practice be considered firmly part of the tradition, for only then can it be said to enjoy the multigenerational consent of the whole people.

The precise amount of time a practice must enjoy universal reception before becoming part of the tradition is not clearly and consistently defined by common-law writers. For example, Blackstone wrote that a practice must have been used universally from time “immemorial” to be considered part of the common law. If anyone could determine a time when the practice was not used, it could not be part of the common law. At the same time, however, Blackstone acknowledged the fact that the English common law had developed over time and had changed as an “intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans … must have insensibly introduced and incorporated many of their own customs with those that were before established.” American common-law thinkers such as James Wilson rejected the idea that a practice had to enjoy “immemorial usage” before becoming part of the common law:

Some writers, when they describe that usage, which is the foundation of common law, characterize it by the epithet immemorial. The parliamentary description is not so strong. “Long use and custom” is assigned as the criterion of law, “taken by the people at their free liberty, and by their own consent.” And this criterion is surely sufficient to satisfy the principle: for consent is certainly proved by long, though it be not immemorial usage.

Despite this lack of precision, there are some things we can say with certainty about the scope and duration of usage a practice must enjoy before we can say that it is clearly part of the tradition. First, reception of the practice must be universal; that is, it must be employed throughout the relevant legal community. Second, the practice must be public. A secret or “underground” governmental practice cannot be said to enjoy the consent of the people “taken … at their free liberty.” Third, the practice must continue to be universally received over the course of multiple generations. The premise of the common law is that multigenerational consensus is more reliably just and reasonable than the consensus of a given moment. As noted above, the number of generations that must receive a given practice before it can be said to enjoy long usage is uncertain. Cases concerning the reverse question–how much time it takes a once-traditional practice to fall out of usage for constitutional purposes–have generally required a century or more of disuse. Similarly, it would seem that a century or more of universal reception would be required to show that a new practice enjoys a stable multigenerational consensus. But in any event, there is no reason to treat long usage as an “on-off” switch. However much time it may take definitively to establish “long usage,” we can at least say that the longer and more universally a public governmental practice is received, the more likely it is to comport with the tradition.

Carter Snead

Carter Snead is the Charles E. Rice Professor of Law and the Director of the de Nicola Center for Ethics and Culture at Notre Dame Law School. Professor Snead is one of the world’s leading experts on public bioethics with extensive research that explores issues relating to neuroethics, enhancement, human embryo research, assisted reproduction, abortion, and end-of-life decision-making. Professor Snead received his J.D. from Georgetown University and his B.A. degree from St. John’s College in Annapolis, Maryland.

Lucia Silecchia

Lucia Silecchia is the Associate Dean of Faculty Research and a Professor of Law who has taught at Catholic University’s Columbus School of Law since 1991. Professor Silecchia has written extensively in the areas of environmental law and ethics, elder law, Catholic social thought, legal education, law and literature, and legal writing. In December, 2016, she began service as an Expert to the Permanent Observer Mission of the Holy See to the United Nations, assisting on matters related to the elderly, people with disabilities and ecology. Professor Silecchia received her J.D. from Yale Law School. And her B.A. degree from Queens College (C.U.N.Y.).

Luis Perez

Luis J. Perez is a Partner at McDermott, Will & Emery in its Miami office and focuses his practice on mergers and acquisitions and corporate governance matters, including international transactions, for clients operating throughout the United States and Latin America. Mr. Perez is a member of the Council on Foreign Relations and is also a senior editor for the Harvard Advanced Leadership Initiative Social Impact Review. He received his J.D. from The Catholic University of America, Columbus School of Law and his B.A. degree from Rollins College.

Michael Moreland

Michael Moreland is University Professor of Law and Religion and director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University Charles Widger School of Law where he has taught numerous courses including Torts, Evidence, Bioethics and the Law, Advanced Torts, Constitutional Law II, Justice and Rights, and seminars in Law and Religion. As a renowned scholar in these fields, Professor Moreland has published articles in leading legal, public policy, and medical journals, and his chapters on law, ethics and religion have been featured in numerous books, including titles published by Cambridge University Press and Oxford University Press. Professor Moreland received his J.D. from the University of Michigan Law School, his M.A. and Ph.D. in theological ethics from Boston College, and his B.A. degree in philosophy from the University of Notre Dame.

Veryl Miles

Veryl Victoria Miles teaches Consumer Bankruptcy and Commercial Law courses at the Catholic University of America, Columbus School of Law, where she was previously Dean from 2005-2012. Much of her extensive scholarship has been devoted to the subject of consumer bankruptcy law as well as a range of issues regarding legal education and admission to the bar. Professor Miles is a graduate of Wells College in Aurora, New York, and received her J.D. from The Catholic University of America, Columbus School of Law.

Rev. Aquinas Guilbeau, O.P.

Rev. Aquinas Guilbeau, O.P., is University Chaplain and Director of Campus Ministry at The Catholic University of America. He previously taught moral theology of the Dominican House of Studies and served as Prior of the Priory of the Immaculate Conception in Washington D.C.. Father Aquinas’s scholarship focuses on Thomas Aquinas and the common good. He entered the Dominican Province of St. Joseph in 2005, and after several years of pastoral work, received his doctorate at the University of Fribourg (Switzerland).

David Crawford

David S. Crawford is Dean and Associate Professor of Moral Theology and Family Law at the Pontifical John Paul II Institute for Studies on Marriage and Family at The Catholic University of America. Dr. Crawford’s research has focused on natural law, gender identity, homosexuality, and the anthropological implications of modern civil law. He has an S.T.D., S.T.L., and M.T.S. from the Pontifical John Paul II Institute, a J.D. from University of Michigan Law School, an M.A. in writing from the University of Iowa, and B.A. from the University of Iowa.

Gerard V. Bradley

Gerard V. Bradley is professor of law at the University of Notre Dame, where he teaches Legal Ethics and Constitutional Law. He serves on the editorial board of the American Journal of Jurisprudence, which he formerly co-edited. Professor Bradley’s scholarly work focuses on the intersection of religious liberty, Catholic social teaching, and American law. He has written many books including Unquiet Americans: U.S. Catholics and America’s Common Good (St. Augustine’s Press, 2019). He received his B.A. and J.D. from Cornell University.

Erika Bachiochi

Erika Bachiochi is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute. Her scholarship focuses on feminist legal theory, Catholic social teaching, and Equal Protection jurisprudence. Ms. Bachiochi’s most recent book, The Rights of Women: Reclaiming a Lost Vision, published by University of Notre Dame Press in 2021, was a finalist for the Intercollegiate Studies Institute’s Conservative Book of the Year Award. She has edited two other books, and her writings have appeared in publications such as the Harvard Journal of Law and Public Policy, The New York Times, and The Atlantic. Ms. Bachiochi has a J.D. from Boston University School of Law, an M.A. from Boston College, and a B.A. from Middlebury College.

Helen Alvaré

Helen M. Alvaré is the Robert A. Levy Endowed Chair in Law and Liberty at Antonin Scalia Law School, George Mason University, where she teaches Family Law, Property Law, and Law and Religion. Her research focuses on marriage, parenting, non-marital households, and freedom of religion. She has published several books including Religious Freedom After the Sexual Revolution: A Catholic Guide with Catholic University of America Press in 2022, and Putting Children’s Interests First in American Family Law and Policy: With Power Comes Responsibility with Cambridge University Press in 2017. In addition to her scholarship, Professor Alvaré is a member of the Holy See’s Dicastery for Laity, Family, and Life and a board member of Catholic Relief Services. She holds a J.D. from Cornell University School of Law, an M.A. in Systematic Theology from Catholic University of America, and a B.S. from Villanova University.

William Rooney

William H. Rooney is the Lumen Legis Fellow of the Center for Law and the Human Person and a Lecturer at the Columbus School of Law at The Catholic University of America. His primary areas of scholarship and teaching are law in the Catholic intellectual tradition and antitrust law. Mr. Rooney aspires to contribute to the Center in collaboration with students, scholars, and practitioners and through his experience in philosophy, law, and economics. He is especially interested in studying the human person as the imago Dei who receives the light of all law from God, the Eternal Light, Creator, and Lawgiver. Mr. Rooney has been a lifelong student of the Catholic intellectual tradition and its intersection with law and economics. He has an M.A. in Philosophy from Holy Apostles College and Seminary, a J.D. from Yale Law School, a Diploma in Law from the University of Oxford, and a B.A. from the University of Notre Dame. Mr. Rooney is a former partner of Willkie Farr & Gallagher LLP and former co-head of Willkie’s Antitrust Practice Group and practiced antitrust law for over 30 years. Mr. Rooney is a Trustee of the Dietrich von Hildebrand Legacy Project and has collaborated with the Collegium and the Portsmouth Institutes.

Louis Brown

Louis Brown is the Center’s Associate Director. Brown received a Juris Doctorate from Howard University School of Law. After law school, he first worked as a private practice attorney for a firm where he practiced labor law and commercial litigation. He later served as associate director of social concerns for a state Catholic conference. While at the conference, among other efforts, he advocated for life-affirming health care policy, co-led a legislative coalition in favor of housing non-discrimination legislation, advocated for in-state tuition for undocumented immigrants, and sought to protect the social safety net for the poor. Brown went on to become a Congressman’s legislative counsel and his liaison to the U.S. House Committee on the Judiciary. He also served as the Congressman’s primary health care staffer. 

Marc DeGirolami

Marc O. DeGirolami is the inaugural St. John Henry Newman Professor of Law and Co-Director of the Center for Law and the Human Person. His publications include The Tragedy of Religious Freedom (Harvard University Press) and articles in the Yale Law JournalNotre Dame Law ReviewWashington University Law ReviewConstitutional Commentary, Legal Theory, and the Boston College Law Review, among others. Before joining the Columbus School of Law in 2024, he was the Cary Fields Professor of Law and the Co-Director of the Mattone Center for Law and Religion at St. John’s Law School. He has also been a Visiting Professor and Visiting Fellow at Princeton University’s Department of Politics, as well as a Visiting Professor at Notre Dame Law School and The Catholic University of America Columbus School of Law. His professional experience includes service as an Assistant District Attorney in Cambridge, Massachusetts.

Elizabeth Kirk

Elizabeth Kirk is the Center’s Co-Director and Assistant Professor of Law at The Catholic University of America Columbus School of Law. She joined the Columbus School of Law after serving as the Director and Kowalski Chair of Catholic Thought at the Institute for Faith and Culture at the St. Lawrence Catholic Campus Center at the University of Kansas. From 2005 to 2010, she served as the Associate Director of the Notre Dame Center for Ethics and Culture, an interdisciplinary center inspired by the teachings of St. Pope John Paul II and dedicated to bringing the Catholic moral, intellectual and cultural tradition to bear upon the formation of students. From 2012 to 2016, Kirk served as a resident fellow in cultural and legal studies at the Stein Center for Social Research at Ave Maria University.