Common law is the often unwritten set of interpretations for what things mean, whether or not that is defined in any statute.

The Constitution and legal system within the US may only really be understood from within the framework of common law within which they appear. If this seems strange, recall that legislated laws are secondary to the Constitution. The Constitution is a set of symbols on paper which may only be understood with reference to an existing language and interpretation. Common law is what we call that language and interpretation.

For instance we see a word like "jury" in the Constitution. That word could mean anything. Someone might think that it meant "Judy". Someone else might think it a kind of fruit. With the evolution of language, in 200 years it might actually be a kind of fruit. Stranger things have happened.

But if the Constitution is to have a solid meaning, then "jury" must have a fixed meaning. And what fixes the meaning of the word "jury" is its accepted common law background that tells us what Jefferson et al meant by a jury. And this common law background says that it is not just a collection of people. It is a collection of people with specific rights, privileges, and immunities. Of primary importance among them is that a jury answers to nobody for how they make their decision. This right gives rise to jury nullification where the jury makes a decision that is clearly wrong under the law - because they disagree with the law. They have the right to do that. And this right is not incidental - it is central to why various Constitutions consider trial by jury an important right.

Like many of the rights in the Constitution, it has proven inconvenient over the years. So the right has been watered down farther and farther. But if we ever lose the principle that juries are not subject to outside monitoring and surveillance, then the right to trial by jury utterly fails of the purpose that it is intended to serve - to be a check against a corrupt government and a complacent judiciary enforcing bad laws. I do not want the media to place a camera in there because what they do today the government may do tomorrow, and I don't want to be staring at that camera some day debating whether I dare explain to my fellow jurors the rights that they theoretically are supposed to have.

For more on this I suggest going to [link|http://www.erowid.org/freedom/jury_nullification/jury_nullification.shtml|http://www.erowid.or...llification.shtml] with a good starting place being [link|http://quasar.as.utexas.edu/BillInfo/FIJA.History.html|http://quasar.as.ute...FIJA.History.html].

Cheers,
Ben

More precisely that it is still being laid down whenever a higher court creates precedents indicating which legal theories are and are not to be interpreted as having force.

Granted most of the significant features were accreted by the late 1700's, and for the interpretation of the Constitution that part of it has partciular relevance since it frames the context in which the Constitution was written.

I will have to track down a lawyer to discuss this with. Possibly at Thanksgiving because then I can get 2 of them to argue with each other... :-)

Cheers,
Ben

Considering that there will be two lawyers at Thanksgiving dinner, I think I will be doing more listening than arguing. :-)

Cheers,
Ben