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Posts Tagged ‘Magna Carta’

U.S. Supreme Court

The U.S. Supreme Court decided in the case of Erie Railroad Co. v. Tompkins (1938) that:

There is no federal general common law.

Article III, Section 2 of the original Constitution stated:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,

The distinction between “Law” and “the Laws of the United States” shows that the former is referring to common law, while the latter is referring to Acts of Congress. Therefore, the original Constitution recognized the pre-existence of common law, and that it was within the purview of U.S. courts to shape, including federal courts.

The phrase “common law” isn’t explicitly referenced in the original Constitution;¬†It is mentioned in the Seventh Amendment, which states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment recognized a pre-existent “right” of trial by jury, which is part of the common law firmly established with the Magna Carta of 1215 — further demonstrating that common law was pre-existent to the U.S. Constitution, and the government it created.

Article I, Section 8, clause 17 grants Congress the power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States,

Lawful Acts of Congress can override certain common law provisions in the limited area of present-day Washington, D.C., but the power to exercise exclusive legislation in all cases whatsoever over that area didn’t mean that common law never applied there.

If common law never applied there, then why should common law have applied in any of the several States? We know that common law did apply in the several States, and, therefore, common law always did, and still does apply to Washington, D.C.

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Despite the later incorporation of the First Amendment against the States with the Fourteenth Amendment, the First Amendment couldn’t be more clear that it was only intended to restrict Congress and not the courts or State legislatures.

If no federal general common law ever existed, then Washington, D.C. was lawless until the first Act of Congress was passed. Does it make sense that murder wasn’t unlawful in Washington, D.C. until Congress made it unlawful?

And does it make sense that the common law right of quiet enjoyment of real property has never applied there? The implication of that and the First Amendment is that D.C. residents don’t have the right of peaceful enjoyment of their property, since Congress is prohibited from restricting peaceful, but noisy assembly.

Article I, Section 9, clause 2 of the original Constitution states that:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Are we to assume that the Framers of the Constitution had it in their minds that there would be no habeas corpus protection in Washington, D.C. unless Congress granted it by an Act of Congress?

Therefore, regardless of what the U.S. Supreme Court took 149 years to decide in their 6-2 split decision in 1938, general federal common law did exist, and still does exist.

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The First Amendment to the United States Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

However, as the First Amendment Center states:

The right to petition, however, requires only that the state receive complaints and grievances, not that it respond to them. Historical practice aside, as the Court explained in Minnesota Board for Community Colleges v. Knight (1984): “[N]othing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.”

Compare that to the Magna Carta, signed by King John in 1215, that allowed for a group of 25 barons to seize the king’s property to redress their grievances, if redress wasn’t provided within 40 days. In the words of King John:

And if we, or in our absence abroad the chief justice, have not corrected the transgression within forty days, reckoned from the day on which the offence was declared to us (or to the chief justice if we are out of the realm), the four barons mentioned before shall refer the matter to the rest of the twenty-five barons. Together with the community of the whole land, they shall then distrain and distress us in every way possible, namely by seizing castles, lands, possessions and in any other they can (saving only our own person and those of the queen and our children), until redress has been obtain in their opinion. And when amends have been made, they shall obey us as before.

Why is it that 794 years later, in 2009, 303 million American people (the sovereign) can’t even expect a response to their petitions from their servant government of, by, and for the people, whereas 25 barons could seize any and all property from their sovereign, that they deemed proper to redress their grievances?

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