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On Common Law and the Constitution
April 18, 2014
On Common Law and the Constitution.
What, exactly, is Common Law?
Vic Biorseth, OWM; Thursday, April 17, 2014
I was reading an old article (1/6/07) in First Things (at http://www.firstthings.com/article/2007/01/common-law-liberty-rethinking-american-constitutionalism) by Robert F. Nagel. It was about some of the rational ideas contained in a book by James R. Stoner titled Common-Law Liberty: Rethinking American Constitutionalism. What stirred my curiosity was the explored dichotomy between straight common law and the growing tendency to form policy from the bench.
New to me was the twin notions that common law depends on legal precedent, and that common law is increasingly seen as part of an “exalted image” jurists and constitutional scholars have of themselves. It may be this “image” that corrupts common law with purely subjective inferences, based on supposedly newly acquired “knowledge” of changing culture.
Roe v. Wade, we would all agree, was a judicial abomination. But Planned Parenthood v. Casey, which could have overturned Roe v. Wade, didn’t, and the reason was Constitutional Jurisprudence; the value placed upon legal precedent. And that is to say, common law. Roe v. Wade, in the first place, should not have been adjudicated at the federal law level, because no such law ever existed before Roe v. Wade, and abortion is outside the limited and enumerated powers of the federal government. That makes it a matter of local community standards. Thus the right to abort someone became federal common-law legal precedent, in a case that should not have even been adjudicated at the federal level.
Another area of significant interest touched on freedom of speech, in which the Court seems to be constructing protections for “defamation, profanity and fighting words” into an absolute right. To me, no right should be absolute. Everything should have reasonable limits. In multiple pages in this site I have opposed absolute rights to speech as well as religion, culminating in the Outlaw Marxism and Outlaw Islam pages. It seems to me that we should not be legally required to tolerate systems that seek our national doom, and the doom of the very constitution that grants us the rights of freedom of speech and religion.
While I would not oppose anyone’s right to promote Marxism or to evangelized Islam in the public square, I would oppose any such person the right to entry into any candidacy, office or armed force that requires an oath to defend the constitution. Marxism and Islam clearly oppose the constitution, so adherents could not honestly take such an oath anyway. Nor should they be allowed any position of trust in our society. We should not be legally required to invite our own avowed conquerors or murderers to dinner.
As usual, I seem to be in the minority here. Read the article yourself and let me know your thoughts.
Have a blessed Holy Week.
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