Quote:
Originally posted by Spanky
Now I know you are wrong about this. All the common law systems in the the colonial courts were preserved. In most of the states the common law system in the state courts were not even slightly interrupted by the American revoution. If a common law precedent was not liked then the state legislature had to overturn it, even if it was prerevolutionary.
However, I don't remember anything about common law rights from law school. In fact I had only heard of them in the British system. But now that I think about it there were certain common law concepts like Habeus Corpus.
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My God. A substantive discussion on this board. I thought all you guys did here was make Rupert Murdoch look like a man with high journalistic standards.
OK, I know something about this one, so I'll post.
The adoption of common law was subject to a number of changes in the new country, many of which were the subject of important rulings in the Marshall court. However, most of the common law was preserved, just subject to the changes necessary, for example, to respect the elimination of ultimate appeal to parliament sitting as a court or to the King's bench.
The Supreme court can and does extend the common law every day; in my view, this is inevitable. For example, freedom of the press is enshrined in the Bill of Rights, but what does freedom of the press mean? If we limit it to the common law notion of freedom of the press at the time of adoption, we have a very different notion of freedom of the press than we would have today. The colonial courts had already extended freedom of the press beyond the courts of the mother country (remember Peter Zenger?), but, for example, the Alien and Sedition Acts were passed in the John Adams administration but would almost certainly be viewed as unconsistutional today. The decisions developing freedom of the press as a concept are generally post-revolution and have to be thought of as common law developments.
So, the common law of England was adopted, but in its adoption was modified in a number of ways. There are still courts where English common law is recognized as precedent, though there were many more just a few decades ago. I had the pleasure once of successfully citing English common law as a precedent once when there was no relevant state law on point over the prior 200+ years. (I suspect this opportunity only comes up about once a career).
