Tuesday, March 20, 2012

Concerning an alloy of the common law and natural law

The idea that the Indiana Constitution prohibits the grant of any privilege or immunity that applies to a person in the violation of that constitution is implied as the constitution stands, particularly with the corroboration of the common law maxims (what may not be done directly may not be done indirectly; every right has means of enforcement and every wrong has a remedy), which are themselves corroborated by reason and good sense.

It is true that the provisions of the state and federal bills of rights do not generally state what the consequence is of their violation, or what their effect actually is, but these provisions were not handed down from the clouds by a mysterious Person, without thought to the landscape that they would adorn. That landscape was composed of an alloy of natural law and the common law. It was not perfected, yet, at the time of the American Revolution or of the adoption of any state's constitution (if it could ever be), and it was not intended to be frozen in its state as it was, but the common law did have, at least, certain essential attributes, rules, and principles. It was not arbitrary, and judges were never authorized to develop it as they wished, without regard for what was fundamental. Its fine points were open to being worked free of impurities, and it was even capable of adapting its particular rules to address new sets of facts, and to improvement on discretionary questions, but its major rules were steady, known, and right. (In Indiana’s case, it is this common law, and not whatever the Supreme Court might please to adopt at any time, that is the law of this state, subject to the statutes of the state.) The rights provisions of the constitutions crown and shield this landscape, and that is the key to understanding those provisions’ meaning and effect. Officers who invaded the homes of people without a proper legal justification were subject to criminal and civil penalties. The Fourth Amendment (and Indiana’s Article I, Section 11) was apparently meant to preserve that situation. To eliminate those penalties, or to privilege those actions, is to effectively legalize those actions, or to give them, effectively, a general warrant. It is the state’s sanction of those prohibited wrongs, and it ought never to be called “legal.”

I am aware that the common law and statute-law of the Kingdom of Great Britain, and England before it, and the several states after it, were not "set in stone." That is precisely the reason why I focus on the established fundamentals and make reference to the natural law element of the common law: because nothing suggests (and everything suggests the contrary) that the Americans who created the United States Constitution and, eventually, the Indiana Constitution wanted to freeze the common law in time, preserving every precedent and rule forever. It is one thing to say that, however, or to say that the common law was meant to be continuously perfected, over time, in its particulars. It is something else to say that the highest court in a jurisdiction is presumptively entitled to abolish or severely alter its major landmarks, rules, and principles at a time of its choosing, without the consent of anyone else (including when it does this at the instigation of the legislature of the jurisdiction).

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