Making Baby Jesus Cry

[Penske_Account]

Originally posted by Tyrone Slothrop
Qupe Syrah, 2003. Liking this better than the 2000 Bien Naciedo.

the beauty of the individuality of each bottle of wine.

[Captain]

Originally posted by Spanky
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.

My God. A substantive discussion on this board. I thought all you guys did here was make Rupert Murdoch look like a man with high journalistic standards.

OK, I know something about this one, so I'll post.

The adoption of common law was subject to a number of changes in the new country, many of which were the subject of important rulings in the Marshall court. However, most of the common law was preserved, just subject to the changes necessary, for example, to respect the elimination of ultimate appeal to parliament sitting as a court or to the King's bench.

The Supreme court can and does extend the common law every day; in my view, this is inevitable. For example, freedom of the press is enshrined in the Bill of Rights, but what does freedom of the press mean? If we limit it to the common law notion of freedom of the press at the time of adoption, we have a very different notion of freedom of the press than we would have today. The colonial courts had already extended freedom of the press beyond the courts of the mother country (remember Peter Zenger?), but, for example, the Alien and Sedition Acts were passed in the John Adams administration but would almost certainly be viewed as unconsistutional today. The decisions developing freedom of the press as a concept are generally post-revolution and have to be thought of as common law developments.

So, the common law of England was adopted, but in its adoption was modified in a number of ways. There are still courts where English common law is recognized as precedent, though there were many more just a few decades ago. I had the pleasure once of successfully citing English common law as a precedent once when there was no relevant state law on point over the prior 200+ years. (I suspect this opportunity only comes up about once a career).

[Captain]

Originally posted by Spanky
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.

Another point: many of the federalists argued that the Bill of Rights were unnecessary because the rights set out were protected by common law. This argument sidestepped the fact that under traditional concepts of common law in England (at least since the English Civil War), sovereignty rested with parliament and parliament could effectively undo any rights granted by Common Law. The cases dealing with sovereignty in the U.S. have adopted and probably even expanded this concept.

[Captain]

What my other posts get to is that a true strict constructionist would severely limit rights people take for granted today, like much of what we view as freedom of the press. Another example is freedom of religion. There was a smattering of anti-Catholic leglislation still on the books in the early states, and then a torrent of anti-Catholic legislation was adopted as Irish immigration picked up at the time of the famines. It is not clear what the constitutional standards really would be with respect to freedom of religion until relatively late in the 19th century.

[Mmmm, Burger (C.J.)]

Originally posted by SlaveNoMore
Yet no one "found" it within the first 180-so years of American jurisprudence. Funny dat.

Was the Court asked to at any point during that period?

ETA: and what sayeth you about Samuel Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)?

[andViolins]

Originally posted by Mmmm, Burger (C.J.)
Was the Court asked to at any point during that period?

Didn't Brandeis "find it" in his dissent in Olmstead v. U.S.?

aV

[nononono]

Originally posted by Penske_Account
It's your provocative aura.

Heh. That aura gets me in trouble every time. I should start making better choices.

[spookyfish]

Originally posted by nononono
Heh. That aura gets me in trouble every time. I should start making better choices.

Too late. You found and posted on the PB.

[nononono]

Originally posted by spookyfish
Too late. You found and posted on the PB.

Case in point. But frankly, there aren't enough girls posting regularly on this board, so I felt a pull.

[spookyfish]

Originally posted by nononono
Case in point. But frankly, there aren't enough girls posting regularly on this board, so I felt a pull.

Hank sometimes pretends to be a girl. Does that count?

[nononono]

Originally posted by spookyfish
Hank sometimes pretends to be a girl. Does that count?

Hank seems to have gender concerns, generally. And while I respect his right to self-define, I'd have to say no, it doesn't count.

[Captain]

Originally posted by andViolins
Didn't Brandeis "find it" in his dissent in Olmstead v. U.S.?

aV

I believe this is the first time the right to privacy is given constitutional overtones. In the Brandeis article, it almost sounds like the right to privacy helps to balance other rights, like the right to free speech.

But the first time the court finds a power or right to be implied rather than explicit in the constitution is McCullough v. Maryland; in this case, the early federalist-dominated court rejected strict constructionism as an interpretative method the first time the court had the opportunity to consider it, early in the life of the Republic.

[Penske_Account]

Originally posted by nononono
Heh. That aura gets me in trouble every time.

Powerful, indeed.

Originally posted by nononono
I should start making better choices.

As the Black Sheep said:

Know you've heard the others, phonies to the lovers
Then of course, the choice is yours

You can get with this, or you can get with that
I think you'll get with this, for this is where it's at


eta: fwiw, W wouldn't know those black sheep, he hates black people......although not as much as Democratic Party Conscience the Honourable Senator Grand Cyclops Bobby Byrd

[Penske_Account]

Originally posted by nononono
Hank seems to have gender concerns, generally. And while I respect his right to self-define, I'd have to say no, it doesn't count.

I used to have some socks that appeared to be female. Does that count?

[Hank Chinaski]

Originally posted by Penske_Account
I used to have some socks that appeared to be female. Does that count?

Does notfrommensa "appear to be female" when part of the conceit is that nfh is actually a guy?