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The Common Law Part II: What Role Did Common Law Play in the New American Government?

How did the English Common Law map onto the American Constitutional system? Professor Kurt Lash discusses the debate among the Founders about whether and how the Common Law would still have force and effect in America. The Common Law presupposed the sovereignty of Parliament, but the American system was based on popular sovereignty. Professor Lash explains the Alien and Sedition Acts as an example of how this struggle played out in the early days of the constitutional republic. https://youtube.com/watch?v=UaIidRGXkkI


So what to do with the common law was actually a matter of struggle and debate in the early decades of the American Constitution. There were some members during the Founding era who were quite comfortable with the ideas of the common laws mapping onto American Constitutional law, and the interpretation of the American Constitution. But there were others, from James Madison to the first constitutional treatise writer, St. George Tucker, who actually claimed that the Common Law needed to be carefully deconstructed and put back together again with an eye towards the peculiar ideas of American popular sovereignty. Some rules of the Common Law would still continue to work just fine, but other rules would not. The primary example of the problems of the Common Law and how it mapped onto the American system would be the rules of sedition, and the ability to criticize one's government without being hauled into court and thrown into jail, for interfering with the will of the people themselves. When Congress passed the Alien and Sedition Act in the late 1790s, the support and the justification for those laws was the Common Law, the idea that one should not be able to criticize the government, the government sitting as the people's representatives, and so to interfere or to somehow undermine the people's support in the government was actually quite dangerous under a common law system with a royal sovereign. In the American system, as argued by James Madison and Thomas Jefferson, precisely the opposite rule ought to apply. There was nothing more important than having the people be able to criticize and undermine the authority of their current government because that's how elections should work. The people should be able to change their governments and make sure that their governments were following the will of the majority and, most of all, were following the will of the people themselves as written into the American Constitution. Freedom of speech under the American context simply could not be mapped onto the rules of Common Law and Common Law sedition as it had developed in England. It was the flashpoint for the need to change the rules of Common Law and come up with new ideas and new interpretive measures that would preserve liberty as Americans had come to know liberty.

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