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To: naturalman1975
The United States needs a Bill of Rights for one overriding reason - it rebelled against the British Crown, and therefore rebelled against English law

Uh, no. Taxation without representation, secret trials, and other indignities visited upon the colonists by the British colonial government, were violations of BRITISH law.

The American Revolution was not a "rebellion" in the normal sense of the word, it was a LAW ENFORCEMENT action directed against a government which broke its own law.

115 posted on 01/18/2013 11:57:10 PM PST by Rytwyng (I'm still fond of the United States. I just can't find it. -- Fred Reed)
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To: Rytwyng
Uh, no. Taxation without representation, secret trials, and other indignities visited upon the colonists by the British colonial government, were violations of BRITISH law.

I know. But that doesn't mean that the revolution didn't wind up being against the British crown, and therefore could have been argued legally to be a rejection of everything that derived from the British crown, which included large sections of English common law.

The alternative would be to argue that all English law remained intact in the United States following the War of Independence, which simply wasn't true. The United States certainly kept some common law but precisely what that was was very unclear in the 1780s because there was no real precedent for what had happened.

America needed to restate rights like freedom of the press, freedom of speech, double jeopardy, etc, otherwise arguments would have been made that they'd been extinguished. New rights that had not existed under common law - like freedom of religion - were also attested to.

Double jeopardy is probably the clearest example of where the problem came from. This is one of the oldest rights under common law - it was introduced in English law under the doctrine of autrefois acquit in 1066. During the Articles of Confederation period, some states said that it applied and some states didn't. The states that didn't, basically argued that the right had been extinguished. The Supreme Court upheld that position on numerous occasions until 1969.

The American Revolution was not a "rebellion" in the normal sense of the word, it was a LAW ENFORCEMENT action directed against a government which broke its own law.

For the most part that's true (one big exception is the Intolerable Acts - though totally unreasonable, they were legal acts of the British Parliament), but it doesn't change the argument.

In England (not yet Britain) in 1689, following the 'Glorious Revolution', Parliament had to restate the continuance of common law for the same basic reason (it had rebelled against a Crown that had acted outside the law) and it also did so in a document termed a 'Bill of Rights'. In a legal sense, it doesn't matter if the rebellion or revolution is justified.

Regardless of all that, though, I'm explaining the Australian perspective as I was asked to do so. Australia has never rejected common law, and so has never felt a need to pass any law stating the principles of common law including all common law rights still apply. They simply do apply as they have since 'time immemorial'. That's one reason why Australian conservatives don't generally want a Bill of Rights, because it's redundant when it comes to common law rights. The other reason is a belief that, in the modern world, it would be used to entrench 'rights' that are designed to push a left wing agenda.

116 posted on 01/19/2013 1:07:35 AM PST by naturalman1975 ("America was under attack. Australia was immediately there to help." - John Winston Howard)
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