Fundamental Rights in Early American Case Law: 1789-1859
British Journal of American Legal Studies Vol. 7, Spring 2018
32 Pages Posted: 16 May 2018 Last revised: 15 Jun 2018
Date Written: May 2, 2018
Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.
Keywords: Constitutional Law, Legal History, Fundamental Rights, Originalism, Bill of Rights
JEL Classification: K4, K00, K1, K10, K40
Suggested Citation: Suggested Citation