Quote:
Originally posted by bilmore
There was this thing about starting a whole new country. Brand new. Not tied down with the old ways, not stuck with the King's old rulings . . . you should read about it. It was called a revolution. It was pretty much a condemnation of the old system, and I've never heard anyone (this is my evidence, which I know is weak) say that they decided only to keep 49.45% of the old legal system.
I understand the idea that they all seemed to follow the hairy hand cases, but this was more of a "this is logical, and so we'll stick to it" approach, then it was a "oh, shit, this is precedent, and we're stuck" feeling.
"Precedent" was a word, then, for "let's see what other treatments this set of circumstances has raised", and not for something that a judge was duty-bound to follow.
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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.
Since the Bill of Rights was not applied to the states until after the Civil war, people rights in these states against state law had to come from somewhere. Before that West Wing Episode I had just assumed these rigths came from state constitutions. But now I realize that some of these rights may have come from a common law tradition (Just like England). So if a colonial or state government abused someones rights prior to the civil war people may have claimed these rights from the common law tradition.
But of course I really don't know. But if this were true it puts a whole new perspective on strict construction now doesn't it?
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