Has the common law of England been declared to be a part of the law of the United States by the Constitution?
There is in the Constitution no Article, Section, Clause, or anything whatsoever which incorporates the common law of England into the Federal government of the United States.
The common law of England has not been declared to be a part of the law of the United States by the Constitution.
Has there been any Amendment to the Constitution or any legislated Act to incorporate the common law of England into the Federal government of the United States?
There has not been any Amendment or Act incorporating the common law of England into the Federal government of the United States.
Is there in the Constitution any grant to the federal judiciary authority to incorporate other systems of laws of its own choosing?
There is in the Constitution no grant to the federal judiciary authority to incorporate other systems of laws of its own choosing.
Could the common law of England become part of the law of the United States by its being part of the law of each of the states, at the time of the adoption of the Constitution?
Although this would be giving efficacy to the inferior instead of the superior and a direct violation of U.S. Const. art. VI, cl. 2, could it be possible?
The law of each state prior to the adoption of the Constitution consisted of the common law of England, the state constitution, and the acts of the state legislature.
The common law of England then was only one of three pillars on which the law of each state was built. It was also the weakest of the three; because it ceased to have any efficacy as law as soon as it was clearly contradicted by either of the others.
If the common law became a part of the law of the United States, because it was part of the law of the individual state, the other two parts of the law of those states must also become a part of the law of the United States, and for the same reason.
But it may be said that these other two parts of the law of each state were dissimilar in the different states, and therefore could not become a part of the law of the United States; whereas the common law of England, in every state being the same, it might become the common law of the United States.
Is the common law of England in every state the same?
The acts of the British parliament are in force in the different states up to different periods; in some to the reign of one king, in others to that of a different king.
Thus the common law of England would be different in these two states.
But the great difference which has been made in the common law in the different states, has proceeded from the changes which have been made in it, by the acts of all the legislatures of the different states, from the time of their first settlement.
Not only is the common law of England different among the states, each state legislature has altered it in different ways; thus the common law of the various states is in no way uniform.
The common law being materially different in all the sates, how can there be any common law in the United States? How shall it be determined which of the states shall be considered as the standard, so far as to make their common law, the common law of the United States? Shall it be a majority of the states; or shall it be those states which contain a majority of the people of the United States? &c &c
Incorporation of the common law into the Federal govt is impracticable. Further, whatever species of the common law of England extant in the law or Constitution of the several states at the time of the Adoption – or at any time – are by U.S. Const. art. VI, cl. 2 prohibited from incorporation into the Federal government.
Therefor, in no way can the Federal govt. be said to be based on, or to have incorporated, the common law of England.
The jurisdiction of Federal courts is defined by the Constitution. Federal judicial reliance on the common law of England is a dangerous usurpation and a direct subversion of the fundamental principle of separation of powers. Any incorporation of English common law is not a Judicial power, it is a power of the Legislature.
This judicial myth of the common law of England being a part of federal law is dangerous. Federal court judges misconstrue the doctrine of stare decisis mistakenly believing that the common law of England actually is incorporated into federal law since a prior court said so.
A court can not establish a new grant of power to itself!
The unsanctioned assumption of power not granted does not establish precedent in the sense of stare decisis. Stare decisis: “to stand by things decided” not “to stand by powers self-granted”.
English common law is not a part of our national law, any Federal judge’s claim notwithstanding.
This terribly mistaken idea gained currency circa 1845 and O. W. Holmes championed it. The border insecurities, the bankrupting of our municipalities and hospitals, corruption and dilution of citizens' votes, etc, are in no small measure symptoms of the “anchor baby” crisis birthed by Justice Gray’s reliance on this alien system of law.
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Further explanation as to why English common law can not be the basis of the Federal govt. can be found at the Library of Congress:
http://memory.loc.gov/cgi-bin/query/r?ammem/fawbib:@field%28DOCID+@lit%28bbf0081%29%29
The explanation is found in the Appendix to “Correspondence between George Nicholas Esq. of Kentucky, and the Hon. Robert G. Harper of South Carolina, on the subject of the Alien and Sedition Laws, 1798″ The Appendix is titled, “Observations of Judge Addisons Charge to the Grand Jury On the Liberty-of-the-Press”
The relevant pages of the original document, as well as a transcript from those images, is available at scribd: http://www.scribd.com/doc/89761472/
The very first amendment to that new Constitution did incorporate the Bill Of Rights. Those rights were largely the rights of an Englishman. Therefore, to the very limited extent that English common law ever existed in any overarching form in the new nation under the Constitution, it is embodied in our First Amendment rights. All else in the Constitution overturned the common law, as well it should, as the new nation sought to separate itself from being bound by the very common law that so many persist in claiming as guiding principal for original intent.
According to the U S Supreme Court:
“The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]”
The point was not that English common law controlled US law, but that it formed the language used by the Founders. To know what the Founders intended, you have to know the legal language they used.
NBC” and “natural born subject” were used interchangeably by the Mass legislature that ratified the Constitution. Thus a rational person could conclude that NBC & NBS had interchangeable meanings in the eyes of those who approved the Constitution, and that the common law meaning of NBS drove the understanding the Founders had for NBC.
That is why birthers lose in every case. They defy not just the courts, but reason itself.