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February 27, 2014|Common Law, Conscience of the Constitution, Constitution, Declaration of Independence, Friedrich Gentz, James Stoner, John Locke, Natural Rights

The Declaration’s Grievances and the Constitution

by Richard M. Reinsch II|

The Declaration Committee, New York, 1876.

In a detailed historical review of Timothy Sandefur’s new book entitled The Conscience of the Constitution, Adam Tate raises the practice of federalism as a principled method that representatives used in the early republic for handling difficult issues. Rather than face political paralysis or endure efforts at national coercion via constitutional provisions regarding slavery or religious freedom, for example,  Tate notes that the Founders looked to the states and their separate interests as the best solution. So Tate argues that there was no natural rights code of law with exact specifications nationally applied.

If we were such a republic, then why were natural rights not relied upon in the tough cases and appealed to with precision? If there was consensus on natural rights as the baseline, then surely it would have governed these disputes, rendering them noncontroversial. More plausible is that the natural law and natural rights were seen as an ultimate source of law, but what this meant in concrete application was not firmly agreed upon by the Framers. As a result, particular resolution of constitutional questions via a detailed code of natural rights wasn’t ventured.

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December 3, 2012|Common Law, Constitutionalism, Hadley Arkes, James Stoner, John McGinnis, Richard Reinsch

Why the Common Law in America?

by Richard M. Reinsch II|

The next Liberty Forum is now available. Featured this month are tremendous essays from James Stoner, Hadley Arkes, and John McGinnis on the relationship between the unwritten common law and the written Constitution. To put it in Stoner's terms: can we understand our Constitution, its central liberty protecting provisions, and can we even properly interpret it without a prior understanding of the common law tradition? Of course, America is founded on a primary act of separation from Great Britain that is built on first principles of independence and liberty, rooted we might say in natural rights and not the traditions…

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December 2, 2012|

Peeling Back the Common Law: Reflections Stirred by James Stoner on the Common Law

by Hadley Arkes|

In response to: Why You Can’t Understand the Constitution Without the Common Law

We were not aware at the time that they were twilight years, that time just before Roe v. Wade was decided, when statutes on abortion were sustained in the courts and only occasionally struck down.  That is in part why Roe v  Wade came with a jolt of surprise.  In one case, just a year before Roe, the Supreme Court in Florida struck down a statute that barred abortions except when “necessary to preserve the life” of the pregnant woman.  The Court affected to find “vagueness” in that statute (though it would be hard to imagine how judges could have…

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More Responses

Common Law Constitutionalism: Tradition v. Interpretive Process

by John O. McGinnis

James Stoner’s essay on the common law and the constitution provides a very valuable perspective on our founding document.  Stoner is wholly correct that the common law concepts are often essential to interpreting the Constitution.  Nevertheless,  I want to raise a note of caution about using the common law method  of interpretation as applied to…

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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