Historically, this is the process by which most of our laws were in fact created. To get a good idea as to the breadth of our common law, check out The Common Law by Justice Holmes.
Interesting you should bring up Holmes, the father of the modern legislative Courts. The view of the courts as having power to judge on the basis of common or natural law had been rejected back during the days of Marshal and Story. Holmes himself was a lone wolf who first set the stage for understanding the constitution as a living document. In fact he was the first to use the term (if my memory serves me). I was actually thinking of bringing him up myself. Holmes began the usurpation of the last hundred years although he himself was powerless to put into practice, being the only man on the court holding such an opinion. For the previous hundred odd years the court pretty much stuck to the limited task of striking down laws contrary to the Constitution and others that were in conflict with one another. They maintained the discipline recommended by Hamilton in Federalist 78 (with some notable exceptions of course -- but few only, which likely rather demonstrated the axiom that the exception proves the rule). You continue:
Legislatures have played an increasingly large role in the development of our laws, particularly in the last one hundred years. Remember, though, that when a legislature passes a law, it does so against the backdrop of the existing common law and that courts continue to apply (and to develop) the common law unless there exists a statute that is contrary to the common law.
I would argue it is hardly common law, but rather judgements of WILL out of whole cloth. Indeed there are very few among the liberal progressives who think there is a common law, unless it be one that evolves over time, changing with times, the conscience of which is seated in the minds of the men in black. The reason the Constitution ought never be considered a living document is that once it is so considered it quickly becomes a dead document, one without meaning, since it can mean whatever any judge so WILLs.
To your next point, regarding the situation of the Alabama governor surrounding Catholic churches etc., you must remember that at the founding there were some state sponsered Churches and some sects were persecuted in some states. We have clearly moved away from that, but that is why I raised the question regarding the scope of the 14th amendment and whether it ought to apply to the states at all. It is a very interesting question and one that poses very grave problems for either interpretation we take.
Finally regarding the "orders" of the federal judges. I for one think that the judges MAY NOT give any orders. For one the power to order rests in the executive and legislative (to a much lesser extent) branches. Hamilton again in 78 points out that even if judges could order or make law, they have no means to enforce such mandates. In fact every order that the judicial branch has ever made has required the force of the Executive who until this point has sheepishly cowed to the almighty gavel.
Thanks for the considered reply. I still think the most interesting question is regarding the meaning of establishment and the scope of the 14th amendment. I haven't studied con-law in many years. I may have to go back and investigate these two questions. They certainly are worthwhile, though I don't really have the time.
It's important to understand that natural law and common law are two totally different concepts. Natural law involves a distinct philosophical approach to how laws should be designed. One can be for or against a natural law approach.
However, the common law is just a description of the body of nonstatutory law that did in fact evolve over a period of several centuries in England and in the United States. It forms the basic framework for our current laws in the areas of property, criminal law, contracts, torts, agency, etc. Even when statutes are written or read, they are written and read within the context of words and concepts that were developed as part of our common law.
One can be for or against the common law, I suppose, but only in the same sense that one can be for or against the historical fact that there were kings and queens in England. The English common law and the tradition that judges made law on a case by case basis is just part of our English heritage and it was brought to the New World with the English colonists.
The common law has never been "rejected." In fact, many states have codified it. For example, Section 22.2 of the California Civil Code provides:
"The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State."
It's a bit late to either favor or oppose the common law. At this point, it just is.
I would argue it is hardly common law, but rather judgements of WILL out of whole cloth.
First, let me clarify something about that link to Holmes on the common law that I gave you in my last post. That piece by Holmes is not a work of advocacy; it is an historical description of how judges had been making the common law on a case by case basis for centuries. And, as he points out, judges are human beings living in and affected by a real world environment:
"The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become."
I also detect in your posts a suggestion that judges making law is some sort of recent development. In fact, just the opposite is true. For the last several hundred years, it has been judges who have been creating the vast majority of our laws one case at a time, creating rules and precedents for us to live by. The recent development (over the last 150 years) has been the increase in lawmaking activities by legislatures. At the present time, most states now have full-time legislatures composed of career legislators who are producing statutes like McDonald's produces hamburgers. It is the increasing influence of legislatures (as opposed to courts) in the development of our laws that has been the recent trend.
To your next point, regarding the situation of the Alabama governor surrounding Catholic churches etc., you must remember that at the founding there were some state sponsered Churches and some sects were persecuted in some states. We have clearly moved away from that, but that is why I raised the question regarding the scope of the 14th amendment and whether it ought to apply to the states at all.
Well, the Fourteenth Amendment is expressly applicable to the states. The more interesting issues have concerned what that amendment really means, i.e., what does it require of states? The Fourteenth Amendment doesn't say anything about the establishment of state religion or the free exercise of relgion or freedom of speech or the freedom of press, does it? In post 166, I linked a case (Everson) which held that, because of the Fourteenth Amendment, states are required to comply with the establishment clause of the First Amendment. In post 173, I linked a case (Boy Scouts of America v. Dales) which makes it clear that all of our justices (including Scalia and Thomas) believe that, because of the Fourteenth Amendment, states are required to comply with concepts found in the First Amendment. If it ever was, it is not now a conservative v. liberal issue. All of them agree on that point!
I still think the most interesting question is regarding the meaning of establishment and the scope of the 14th amendment.
You're absolutely right. It is the most interesting of the issues presented by this Ten Commandments case.
And, you can call me cynical, but I suspect that Chief Justice Moore got the decision by the federal courts that he really wanted all along. ;-)