Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 23

The doctrine of Deism, endorsed by people like Thomas Jefferson, held that morality was discoverable through human reason and human observation of nature. There would be no need for church teachings or revelation. Judges could always have equity and fairness in mind when squaring present circumstances with those from the past. The self-evident truths in Jefferson’s Declaration of Independence speak directly to a morality derived from learning to look and learning to think. The ethics of Western Christian tradition shone brightly: the teaching of a moral ideal, the subsequent imperfection of existing standards, and a call to make what is into what ought to be. This is what one variant of the Living Constitution would bring to the Bill of Rights; no devotion to the past should undermine the rights of humans.

These self-evident truths were so obvious they do not need an enumeration in the Bill of Rights. In his famous circuit court case Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823), Justice Washington summarized the fundamental rights of all people of any state or free nation to include protection, the enjoyment of life and liberty, the right to property and the pursuit of happiness and safety. Washington elaborates with the right of a citizen to pass through or become a resident of another state without penalty, to claim the writ of habeas corpus if necessary, to use the courts, and to hold and dispose of property. Later justices would add more to this list, including the right to form and maintain family, the right of procreation, and the right of privacy.

The court interprets the meaning and application of clauses (how the court has parsed the Constitution and Bill of Rights, such as habeas corpus or due process). The Deist distinction between fundamental and enumerated rights countenanced a large protective sphere around the individual against any government intrusion (fundamental rights) and federal intrusion (Bill of Rights). The Deist interpretation of fundamental rights may have exited stage left, but the notion of fundamental rights underlying enumerated rights remained center stage. Reason allowed humankind to penetrate the mysteries of individualism and individual sovereignty, not the opinions of those long dead or former publics long vanished.

The Deist justification of fundamental rights resembled earlier doctrines of natural law or natural right. Even before, the Roman Empire emphasized laws derived from the practices of all civilizations hither and thither: jus gentium, or law of the people. These were rules thought to be a constant from corner to corner of the empire. These and other doctrines had a common component: fundamental rights and obligations were emergent. We did not wake up one day with a working knowledge of these fundamentals. We came to recognize them. We came to understand them. We came to cherish them. Much less apparent is the close connection between fundamental rights and obligations and English common law. It too is emergent. Centuries of iterations between king and subject kept changing where the authority of the kings end and where the rights of subjects begin. The pace of common law accretion was slow, but apart from stretches in the fabric of time, English common law favorably compares to the unfolding of international law under the liberal democratic order of the post–World War II era.

The appearance of what one or another observer sees as an ad hoc extension testifies both to the continuity of law and the expectation that the process still evolves. Charges of ad hoc exercise begs two questions: does it fit and, if so or not, why? Constitutional law and even statutory law extend the common law at a much faster pace. The fabric is the same but adjusted for size. The longevity of the Marshall Court made a difference for Constitutional interpretation then and thereafter. The separation of fundamental and enumerated rights made a difference then and thereafter. The technique of stare decisis served a basic function in this process: continuity. The methodology used in this book, tracing the development of court themes over time, is an essential method for understanding the American nation-state legal development.