Quote:
Originally posted by Spanky
Here is another way of looking at it:
If English courts could just make up rights (that is what common law is - courts just making stuff up) that become permanent.
If these court made up rights could be used later to strike down legislation passed by Parliament.
If these rights were assumed to exist in the Republic after the revolution
Does that not assume that subsequent courts of the Republic could make up more rights that would be adopted by the legal system like in the British system?
These rights could also be used to strike down legislation?
Does that also not assume that strict constructionism is really a philosophy that only applies to civil law systems and not common law systems (like ours)?
|
Something to think about in terms of British common law is that there is not a clear separation of powers between the court and the legislature. Ultimately, cases might be heard in parliament, with the legislature sitting as court. So the idea of courts and congresses overruling one another is a particularly unique American idea.
On the other hand, the election of Jefferson in the "Revolution of 1800" is exactly the kind of reaction the British would have expected to unconstitutional behavior like the Alien and Sedition Acts. Throw the federalist bums out by any means possible.
