One of the factors in determining the roots of our current law system necessitates tracing back the roots of our rights. To find those roots, we need to look at the documents and concepts available to the founders as they prepared them.
On October 14, 1774, the Constitutional Congress of the United States issued its Declaration of Rights. Among the rights were the following:
Resolved, N.C.D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
So, at that time, what would have been considered the common law of England? For that, we have to go back to one of the documents that you’ve heard about, the Magna Carta:
Magna Carta ( Latin for “Great Charter”, literally “Great Paper” ), also called Magna Carta Libertatum ( “Great Charter of Freedoms” ), is an English charter originally issued in 1215. Magna Carta was the most significant early influence on the extensive historical process that led to the rule of constitutional law today. Magna Carta influenced many common law and other documents, such as the United States Constitution and Bill of Rights, and is considered one of the most important legal documents in the history of democracy.
Although put into effect by force, the Magna Carta was filled with an interesting opening statement:
In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English Church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III, before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs forever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.
Basically, these people believed and put forth the belief that the rights that they were listing were rights that were due them from God first, then the charter. So, this begs the question, from where do they believe that God had granted them anything? From the Bible– a Christian document. In fact, a lot of the charter reflects laws set in place based on principles from the Bible.
So, if we take a look at documents from the time of the Constitution what we see is a society and culture defined by the concept that law originated with God as the ultimate law giver, and that it was within this framework and with this understanding that our Constitution was crafted.