Quote:
Originally posted by Mmmm, Burger (C.J.)
Define "miss".
But, 2. The common law is used to resolve disputes between private parties. Constitutions (e.g., the Magna Carta) define the scope and/or limitations on the power of the government.
Common law rights are things like the doctrine of ancient lights and the right to be free from a nuisance. Those aren't limitations on government power but rather on private actions.
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When you read the Brandeis article you posted earlier together with his dissent, you get an interesting idea of Brandeis' view of the relationship of common law and constitutional principals. He views the common law (first protecting battery, then protecting from libel, etc.) as forming the basis of rights ultimately enshrined, referenced or implied in constitutions; he is not viewing the constitution like a contractual construction between government and people but instead an expression of the people delegating authority to government based in part on common law prinicipals.
I know this has been an issue, with arguments that "there is no Federal common law" being in the ascendancy today. But I'm not sure that's right.
