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Legal ‘Conservatism’ of the American People

This material courtesy of Sean B. Quigley

One of the most incisive observations that one can make of the American people is that, by and large, they are a startlingly conservative people. To avoid having the reader suppose that this implies a socially or religiously conservative perspective (as modern parlance defines it), one should mention that conservative in this sense means being reliant on custom, convention, and tradition – being deferential to history and all of its lessons, which inform Americans’ present actions, no less in the political-legal sphere than in the private sphere.

Americans, in evaluating the desirability of a given statute, ordinance, regulation, etc., will always examine whether or not such governmental action is constitutional – constitutional both in the sense that it comports with the written Constitution ratified in the late 18th century, and in the sense that it does not run afoul of the tacit constitution of precedent which informs the present generation of how, in past generations, their ancestors responded to similar questions. This American approach to legal issues, of course, did not emerge from a vacuum; rather, it itself is a product of history. Americans, one must understand, are heavily indebted to their political ancestors in England, whose courageous defense of the ancient Anglo-Saxon constitution throughout the centuries, but especially during the period of the English Civil War and the Glorious Revolution, was among the chief historical examples impelling the Founders to draft the Declaration of Independence, launch the War for Independence, and later ratify the Constitution.

This ancient constitution, while near and dear to Englishmen, as it protected their ancient rights and liberties, was not a formal, written document. Indeed, to this day, the English people do not have a written constitution; the American people, of course, do. It is argued by many that, had Parliament not imposed certain tax policies to which the American colonists’ representatives had not consented, and the Crown not enforced those tax policies, no Declaration of Independence or War for Independence would ever have been necessary. Further, the Constitution, which specifically guarantees a republican form of government and enumerates historical rights and liberties, such that they cannot be extirpated by mere statute or by executive decree, would not have been necessary.

But, with this Constitution in place, the American people had a specific document to act as a legal safeguard against the violation of certain historical rights and liberties. That the American people, to this day, labor over trying to understand the meaning of this document and the intentions of its Framers, even though it was ratified more than two-hundred years ago, is a testament to their essential legal conservatism.

This legal conservatism is proved further when one encounters the fact that every single state, with the quasi-exception of Louisiana (which was a French colony before it was purchased by the United States), has inherited, by legislative statute in each state, the English common law tradition. The common law, an instrumental tool in safeguarding the ancient rights and liberties which Englishmen so cherished, and which the War for Independence was launched to protect, is a system of law in which judicial decisions (holdings) based on specific cases form a binding precedent, known as stare decisis (Latin for ‘to stand by things decided’). All judges must subsequently abide by these decisions when examining similar cases, and only the legislature, by regular statute or by a super-statute (i.e., the Constitution), can alter or overturn such decisions.

The most interesting detail in all of this is that the principle of stare decisis was established by King Henry II, under the authority of his Royal Prerogative – in the 12th century! The legal system of the American people, then, is based on a history of more than 800 years – and the rights and liberties which that system has served to protect are infinitely older.

Conservative, indeed.

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