Sunday, October 16, 2005

Common law rights

The recognition of common law rights that could trump legislative statute and royal edict had already long been recognized in England by the time of Bonham's Case in 1610: appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.

In the United States, Supreme Court recognition of unenumerated rights has been the norm since shortly after our Constitution was ratified, except for the short "footnote four" period during the pathological New Deal Court. Four heroic justices fought against the stripping of "mere economic" property and contract rights, and illegal expansion of federal powers, undertaken during the New Deal.

Unfortuneately (in hindsight, given the later replacement of natural law philosophy and demotion of common law to statutory law) rather than invoking the Ninth Amendment, unenumerated rights were at first justified by the Court as a matter of natural rights. In Calder v. Bull (1798) Justice Chase, voting with a unanimous Court, wrote:
There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles, in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law), contrary to the great first principles of the socical compact, cannot be considered a rightful exercise of the legislative authority.

In the later legal positivist era they were classified as substantive liberties under the Due Process Clause.

Infamies such as Korematsu occurred soon after the New Deal Court rejected the idea of unenumerated rights. This absolutist approach was itself effectively rejected when Griswold found an unenumerated right of privacy implied by the "penumbras" and "emanations" of the enumerated Bill of Rights. The right of privacy was later classified as a substantive liberty under the Due Process Clause.

1 comment:

Anonymous said...

Would signing an instrument "Without Prejudice" along with a signature reserve one's Common Law rights?