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On Common Law and the Constitution.

What, exactly, is Common Law? 

Vic Biorseth, OWM; Thursday, April 17, 2014
https://www.catholicamericanthinker.com

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 were 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. 



=====

Footnotes:

Smart-Assed Acronym Hover-Link Footnotes: For the convenience of those readers using devises that lack a mouse, these footnotes are provided for all webpages, in case any webpage contains any hover-links. (If you don't have a mouse, you can't "hover" it over a link without clicking just to see the simple acronym interpretation.)

SLIMC1 Secularist Liberal Intellectual Media Complex
GESGOEAEOT2 Gradually, Ever So Gradually, Over Eons And Eons Of Time
PEWAG3 Punctuated Equilibrium's Wild-Assed Guess
TTRSTF4 Them There Real Scientifical-Type Fellers
TTRSPTF5 Them There Real Smart Perfesser-Type Fellers
TTRSJTF6 Them There Real Smart Journalistical-Type Fellers
SNRTACBT7 Surely No Right Thinking Adult Could Believe Today
STNSEACPB8 Surely Today No Serious Educated Adult Could Possibly Believe
WDN9 We Don't Know
BMDFP10 Baboons, Mongrel Dogs, Filthy Pigs and ...
HBAACOTE11 Human Beings Are A Cancer On The Earth
ACLU12 Anti-Christian Litigation Union
FLORMPORIF13 Flagrant Liar, Or, Mindless Parrot, Or, Innocent Fool
MEJTML14 Marxist Ends-Justify-The-Means Liar
IEJTML15 Islamic Ends-Ends-Justify-The-Means Liar
MPAV16 Marxist Principles And Values
WBESSWG17 Wise, Benign, Elite, Super-Scientific World Governance
TRMITM18 The Reason Man's In This Mess
IYI19 Intellectual Yet Idiotic

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Culture=Religion+Politics;  Who Are We?  Vic Biorseth

The Brilliantly Conceived Organization of the USA;  Vic Biorseth

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Date:   Tue Aug 19 2014
From:  Vic Biorseth
Comment:  

Changes pursuant to changing the website URL and name from 
Thinking Catholic Strategic Center to
Catholic American Thinker.

Pulled the trigger on the 301 MOVE IT option June 1, 2014. Working my way through all the webpages.  . 

Regards,

Vic


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