First, what is “Common Law”? Black’s Law Dictionary has defined Common Law as the body of law derived from judicial decisions rather than statutes or Constitutional law. In other words, it is the law decided by judges without reference to anything else than other decisions by judges.
There are three reasons I’m a fan of the common law:
- there’s too much legislation, and it’s too burdensome on the people it applies to;
- the Constitution is just a framework rather than a system of laws to govern individual disputes in all kids of circumstances; and
- government can exist at the most minimum levels with common law.
As a Libertarian, I’m surrounded by other people in my party who consider themselves either anarchists or Constitutionalists. I’m neither. I don’t really believe anyone else is either. Here’s why.
While we could give lots of examples of why “I’m thankful government is there for…”, nearly every one of them can be denied and refuted except this: what do you do without courts in a contract dispute between people? Who decides if property boundaries are crossed? Was there an assault or self-defense?
Maybe you prefer the idea that the offended party would go out and hire a private judge to decide. OK. What if the other party won’t agree to let that judge decide – now what?
Other than the protection of life from human violence, the best reason I can think of for the existence of government is the ability to construct a near neutrality of judges when people have disputes between them. Coupled with the assurance that a jury, rather than judge alone, will decide the outcome – the common law, passed down and evolving through generations and centuries, is the best protection I believe we have for our own human interests in life, liberty and property.
It takes a lot of study over a long time to understand the path toward (but never reaching) perfection the common law offers, but it is our best and wisest use of government in my opinion.
What about the Constitution? First, I love our Bill of Rights. It says freedom comes first in America. I also love the 13th, 14th and 15th Amendments as they extend freedom equally to everyone in the United States.
The main body of the Constitution is a good body of work as well, especially regarding the separation of powers it creates between the various branches of government. Of course, I do like the reference to incorporation of the common law too.
After that though, the Constitution, as written, is largely a tool for manipulation by statist legislators and executive branch agencies to expand the power and control the federal government has over private individuals’ lives.
Every judge, legislator and President (before the 22nd Amendment) could stay in office for life, be treated as royalty, spending taxpayers’ and the public treasury into oblivion. Sound a lot like what has happened? Guess what? Nearly all of it was done within the Constitutional framework.
If you tell me it would not have happened but for the unconstitutional wars we have fought. I say it only took one difference to make it what it is now. All Congress has to do was to write it’s blank check under war declarations instead of “resolutions” and other watered down legislation, and we would have exactly the same, perhaps an even great mess than we have now.
The Constitution was laid out to support a future empire. The reason we did not get there for as long as we did is that it took generations for us to get big enough and strong enough to make that happen. Today, here we are!
If we really want minimum government and maximum freedom, the best way back to where we started is to return to the system of common law and juries. At the same time, preserve the Bill of Rights and otherwise, it would be wise to retool our Constitution to provide for a framework that fits the new millennium rather than 3/4 of the way through the old.
These are goals the coming generation should wholeheartedly embrace – make America the America you want it to be! Embrace freedom and limit the power of the law in your life!