Rights in the
U.S.A.
Foundations and Origin of Rights in the United States
(March 26 - 29, 2008)
Law as we know it is both primary and derivative. “The Law” can be recognized as primary in the sense that a transcendent, metaphysical and/or governing order is primary to that which it orders. Law is derivative in the sense that the process of making law is built upon and inextricably linked to the cultural, educational and character formation of a society’s members, which in turn affects each member’s ability to discern “The Law” and to state it either through legislation or through common law adjudication.
To get to the true foundations of the law, it is necessary to first step “outside” of the legal discipline and the law academy to evaluate the fundamental intellectual, cultural and spiritual truths as well as various assumptions and historical developments upon which our approach to the law is based. This is no small task, and it is interdisciplinary at its core. Due consideration of history, philosophy and religion are fundamental to any adequate analysis. There is no shortcut, since an unwillingness to engage in such a foundational analysis leads inevitably to a mere “procedural republic,” devoid of any substantive and compelling legal principles from which to adjudicate competing claims over rights, liberties and duties.
IUSLAW’s “Foundations and Origins of Rights in the United States” examines the historical and theoretical basis for those rights generally considered to be fundamental in the U.S., with a view to better understanding these rights and indeed the very notion of “right.”
“More important that the language used in our [past] holding, are the principles we sought to vindicate. Those principles are unquestionably applicable [here]. They are not the product of recent innovations in our jurisprudence, but rather have their genesis in the ideals of our constitutional tradition assimilated from the common law. The Framers of the Constitution understood the threat of "judicial despotism" that could arise from "arbitrary punishments upon arbitrary convictions" without the benefit of a jury in criminal cases. (The Federalist No. 83). The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta. . . . As Blackstone put it:
‘However convenient these [new methods of trial] may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concerns.’ [quoting Blackstone's Commentaries on the Laws of England (1769)]
Supreme Court of the United States
United States v. Booker (January 12, 2005) |
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