Quote:
Originally posted by Captain
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.
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It strikes me as entirely consistent for a people to form a government to protect certain common law "rights" and thereby convert them from negative rights to positive rights.
As for federal common law, that's a substantially different issue. There is certainly a federal common law of the constitution, just not a general one for property, torts, contracts, etc.
