Rights Over Rules

One of the bigger surprises in my personal study of constitutional law was to discover the role of English law, and English Common Law, in American law. In my ignorance I only thought of common law in terms of “common law marriage.” And in many arguments and discussions of constitutional law, common law is often described as a vaguer notion of common “practices”, and some writers will reach into the middle ages to point out some historical practice and argue its relevance to modern law – or to generally discredit the notion of common law by association with archaic practices akin to witchhunts.

But in fact, there is a much more specific and well documented role of English law in American law.

In short, federal law requires federal courts to use the laws of the state where they are located, ever since the Judiciary Act of 1789, and state constitutions throughout the US (with the exception of French-based Louisiana) include “reception statutes” that require their courts to use English Common law as their “rule of decision” until the legislature changes the law. There are two qualifiers to these reception statutes, an “as of” date, usually 1776, and a “repugnance” clause denying any English law that conflicts with our constitutions. So, federal courts are required to use English common law unless the state has changed it, and unless it conflicts with the Constitution.

Why does this matter? We can draw a clear line of law connecting original principles of the Magna Carta and the English Bill of Rights to American constitutional law today.

In another post, we’ll draw the same kind of connection from the original state declarations of rights to the federal Bill of Rights.