[WhiskeyX]

Justice Scalia said, “The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now.”

[Abd al-Rahiim]

Justice Scalia said, “The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now.”

It's funny. I managed to find the supposed original source of that statement here, but there's no recorded transcript, and Googling the phrase quickly reveals that almost every page that uses it is pro-birther.

I'd like to know the context in which Justice Scalia said that, because he has also said

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then.

Now, obviously if you have that philosophy -- which, by the way, used to be orthodoxy until about 60 years ago -- every judge would tell you that's what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like "due process," the "right of confrontation" and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law.

What's English law? Common law, as contrasted to civil law: "...Europe's two major legal traditions, the civil law of the continental countries and the common law of England, Wales and Ireland" (Source).

Besides WhiskeyX, suppose we both take Justice Scalia's comment on common law at face value. Then, you still have to accept what Justice Scalia said in oral argument about "natural-born citizenship" or explain why he's wrong. You can't pick and choose based on what you like, and if what we're really talking about is what "natural-born citizen" means, then Justice Scalia is not on your side.