Common law and the Bill of Rights
Common law is a legal system primarily developed in England that relies on judicial decisions and precedents rather than codified statutes. Central to this system is the principle of *stare decisis*, which mandates that courts follow established precedents in making rulings. In the United States, common law plays a significant role, particularly in the Supreme Court, which interprets laws and constitutional provisions while often adhering to previous rulings. This judicial reliance on past decisions has shaped constitutional law and has implications for both civil and criminal cases.
The Bill of Rights, consisting of the first ten amendments to the U.S. Constitution, serves to safeguard individual liberties and limit government power, reflecting foundational principles in American law. Landmark cases, such as *Marbury v. Madison* and more recent rulings like *Espinoza v. Montana Department of Revenue* and *Counterman v. Colorado*, illustrate how common law interacts with the Bill of Rights, influencing judicial outcomes on critical issues like education and free speech. Understanding the relationship between common law and the Bill of Rights is essential for grasping the evolution and application of American legal principles.
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Common law and the Bill of Rights
- Description: Law generated from court cases and judicial decisions.
- Significance: The US Supreme Court is a common-law court in that it generally follows earlier decisions made by judges.
Common law, or judge-made law, is generated from a succession of judicial decisions or precedents. In common-law systems, courts are bound by the rule called stare decisis, or “let the precedent stand.” In the United States, common law is distinguished from equity law, which is based on reasoning about what is fair or equitable. It also differs from law based on statutes enacted by legislatures.
Common law systems are contrasted with civil law systems found in Europe and elsewhere, which are based on legal codes. Some of these systems are based on the Code Civil (“civil law”), sometimes called the Napoleonic Code or French Civil Code, drafted in Napoleonic France, derived partially from Roman law. By contrast, the common law system was developed in England and brought to the American Colonies. By 1776, the colonial courts used common law as a matter of course. After the American Revolution, decisions made in US courts added to the body of common law.
The Supreme Court is a common law court. Its decisions are the basis of constitutional law, and it generally adheres, except when changing circumstances warrant the creation of new rules, to stare decisis. When government under the Constitution began in 1789, questions arose as to whether federal courts had jurisdiction over common law cases. The question also arose as to whether federal cases would themselves become a kind of common law in civil or criminal cases. The Court’s decisions regarding these questions had far-reaching consequences.
In United States v. Hudson and Goodwin (1812), the Court ruled that no federal court could exercise common-law jurisdiction in criminal cases. It, therefore, denied the existence of a federal common law of crimes. Whether a federal common law of civil cases exists, however, was another matter. In 1842, in Swift v. Tyson, the Court ruled that there is federal common law in commercial cases. This ruling prevailed for nearly a century befure the Court departed from stare decisis and reversed itself, ruling in Erie Railroad Co. v. Tompkins (1938) that one of its own decisions—Swift—was unconstitutional. Speaking for the majority, Justice Louis D. Brandeis wrote, “There is no federal common law.” Nevertheless, this ruling did not completely eliminate the idea of federal common law, though today it is limited to specialized subjects.
The common law process of following precedent in making decisions has allowed the federal judiciary to assume the position it holds in the US constitutional plan. When Chief Justice John Marshall rendered the key decision in Marbury v. Madison (1803) that established the federal court's power to declare laws void, he was following the common law obligation to apply all relevant laws. Because of the force of precedent in common law procedure, the Court’s action in Marbury has reverberated through two centuries of legal tradition, helping to shape the theory and practice of the US government. Common law and the Bill of Rights remain important and foundational aspects of American law that influence case outcomes. For example, Espinoza v. Montana Department of Revenue (2020), concerning education and religious freedom, and Counterman v. Colorado (2023), concerning free speech and the threat of violence, both exemplify the importance of these principles.
Bibliography
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