Common Law Liberty: Rethinking American Constitutionalism

  Author:    James R. Stoner
  ISBN:    0700612483
  Sales Rank:    935991
  Published:    2003-07-01
  Publisher:    University Press of Kansas
  # Pages:    212
  Binding:    Hardcover
  Avg. Rating:    4.0 based on 1 reviews
  Used Offers:    9 from $23.00
  Amazon Price:    $29.95
  (Data above last updated:  2008-08-23 06:42:20 EST)
  
  
Sort customer reviews by:
  
Show All Reviews on Page      Hide All Reviews on Page
   
  
Common Law Liberty: Rethinking American Constitutionalism
  
James Stoner's first book, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism, was hailed as forceful and wise . . . powerful and convincing by the American Historical Review and a stunning achievement by the Journal of Politics. In that work, which provided historical background to the Founding era, he focused on the common law almost exclusively as a mode of legal thought. He now amplifies and extends his thinking on this subject with a study that transcends such formalistic limits and reveals how constitutional law has developed since the Founding.

Common Law Liberty is a rediscovery and reassertion of the common law's central contributions to and enduring impact on American constitutional law. Stoner illuminates the common law's ties to an entire way of life, inextricably linked to the Founding and American constitutionalism, influenced by Christianity, closely connected to the development of free enterprise, and open to the influences of modern science and democracy.

Stoner delineates two common laws: one understood by the Founders and rooted in British traditions of jurisprudence and one that, thanks to jurists like Holmes and Cardozo, corrupted the first by redefining common law as mere judge-made law or judicial process, dangerously disconnected from the values and norms of the communities it serves. The latter, for Stoner, has been a disastrous development, shrouding the common law's original meaning and vitality, replacing its spirited liberty with personal license, giving far too much discretion to judges who wish to depart from tradition and precedent, and, thus, undermining our constitutional system of checks-and-balances.

In an era as morally confused as ours, Stoner argues, we at least ought to know what we've abandoned or suppressed in the name of judicial activism and the modern rights-oriented Constitution. Having lost our way, perhaps the common law, in its original sense, provides a way back, a viable alternative to the debilitating relativism of our current age.

Drawing upon themes from his first book, as well as numerous articles, papers, and lectures produced during the past decade, Stoner crystallizes and reintegrates this body of work. By applying and contrasting both understandings of the common law to specific cases--including free speech, abortion, and religious liberty--he hopes to reclaim essential principles long buried but, in his view, desperately needed to preserve the integrity of our nation's polity and its hold on our moral imagination.

                  Reader Reviews 1 - 1 of 1                 
  
  
Review
Date
Review
Rating(5 High)
Review
Helpful
to:
Customer Review Reviewer
Info
Permanent
Link
Reader Reviews Below Sorted by Newest First
02-11-04 4 3\9
(Hide Review...)  The Tory Position
Reviewer Permalink
The absence of Common Law adherence in light of our Constitution, at least in the schools, makes Professor Stoner's attempt at revival a refreshment. Indispensible for current dialogue, the work reflects that genre of American jurisprudence regarding Magna Carta as "extortion." In that vein, the professor walks a fine line between the "liberty" afforded in at least the process and the clear tradition he has identified in common law underpinning the force of the state, and there going to public libel. Thus, we see the claim of custom and usage refined to rule and doctrine emerging in an "unwritten" way from "legislation" and "Christianity" denoting a compatibility with the British Constitution, and there in contrast with "liberalism" which he defines in the genre of Justice Holmes and coming from the political writings of Hobbes, Spinoza and Locke, among others. In tracing the political theory behind his perception, Professor Stoner minimizes, but at least diminishes the impact of the Reformation and its outgrowth as well as roots in the formative stages of the Common law as it was understood before the Framing and beyond, to the extent no distinction is made between the practical effects of the authority of the Lord working on and in the individual apart from the law giving rise to separation and the province of Lex Rex and the gradual convolution of that private authority to the specific "reasoning" of the judge, even as a law unto himself,which the professor attributes to Holmes, at least in making law. To quote Barnard, "Our English law never appeared in its strength until after the reformation; until after it had come in contact with a free Bible; until it had been softened, subdued and leavened by Bible teaching and Bible precepts, and, by these unmanacled from many of its glaring absurdities and heathenisms and unjust distinctions and inhuman punishments. It was not until then that civil liberty was reinstated after the downfall of the Jewish theocracy." Even before the reformation, the common law rule against torture was, as the professor suggests, a bulwark against inquisition. It furnished a response to Hobbes by way of CJ Hales' apology, and a substantial contribution to our constitutions without sacrificing the comity put forward by CJ Marshall in his Ogden dissent which denotes more a response to condition than a fear of destruction . Perhaps the professor's greatest contribution is his outline of a common law framework in dealing with the present problems of church-state relations and the like. Curiously, there is no mention of the Common law's traditional separation from the province of equity in Chancery - a benchmark for the separation of Church and State, reflected in the 1st Amendment, and hardly liberal in the sense the professor opines. All in all, Common Law Liberty represents a fine contribution to the emerging debate over fundamentals, which has pitted even those who believe in a "working" constitution beyond dead letter against those who have preached a "living constitution" of special interest.
(Review Data Last Updated: 2008-08-23 06:44:01 EST)
  
                  Reader Reviews 1 - 1 of 1                 
  
  
  
  
  
  

Because the data used to generate this site come from outside sources, VeryWellSaid.com cannot guarantee the completeness or accuracy of the data.
Search VeryWellSaid™
Google
Web VeryWellSaid™
New subjects are added every week.
View Subjects Below by:
* Top Selling
 (click category name, left)
* Top-Rated Top Sellers
 (click 'Top Rated', right)
In the news...  
Dubai\UAE Top Rated
Influenza\Bird Flu Top Rated
Iraq Top Rated
Supreme Court Top Rated
All Books Top Rated
Arts Top Rated
Photography Top Rated
Digital Photography Top Rated
Digital Cameras Top Rated
Biography Top Rated
Business Top Rated
Management Top Rated
Marketing Top Rated
Sales Top Rated
Stocks Top Rated
Bonds Top Rated
Real Estate Top Rated
Trading Top Rated
Commodities Trading Top Rated
Time Management Top Rated
Starting A Business Top Rated
Children's Top Rated
Comics Top Rated
Computers Top Rated
PC Top Rated
Mac Top Rated
Programming Top Rated
Design Patterns Top Rated
.Net Top Rated
C# Top Rated
Vb.Net Top Rated
Asp.Net Top Rated
Java Top Rated
Python Top Rated
PHP Top Rated
Perl Top Rated
Javascript Top Rated
Ajax Top Rated
CSS Top Rated
Open Source Top Rated
SQL Top Rated
Databases Top Rated
Oracle Top Rated
MySql Top Rated
Sql Server Top Rated
IIS Top Rated
Apache Top Rated
Linux Top Rated
Windows Server Top Rated
Project Management Top Rated
HTML Top Rated
UML Top Rated
IT Certifications Top Rated
Cisco Certifications Top Rated
MCSE Top Rated
MCSD Top Rated
Cooking Top Rated
Italian Cooking Top Rated
Vegetarian Cooking Top Rated
Wine Top Rated
Engineering Top Rated
Entertainment Top Rated
Health Top Rated
Nutrition Top Rated
Dieting Top Rated
Sex Top Rated
History Top Rated
Military History Top Rated
British History Top Rated
Middle East History Top Rated
Land Battles Top Rated
Naval Warfare Top Rated
Air Warfare Top Rated
9/11 Top Rated
Terrorism Top Rated
Home Top Rated
Mortgage\Home Equity Loan Top Rated
Cars Top Rated
Car Buying Top Rated
Sports Cars Top Rated
Cat Top Rated
Humor Top Rated
Horror Top Rated
Law Top Rated
IP Law Top Rated
Legal History Top Rated
Fiction Top Rated
Oprah's Book Club Top Rated
Medicine Top Rated
Cancer Top Rated
Stroke Top Rated
Heart Disease Top Rated
Fertility Top Rated
Diabetes Top Rated
Pharmacology Top Rated
Back Problems Top Rated
Menopause Top Rated
Thyroid Top Rated
Pain Top Rated
Organic Chemistry Top Rated
Immune System Top Rated
Mystery Top Rated
Nonfiction Top Rated
Outdoors Top Rated
Running Top Rated
Radio Control Models Top Rated
Guns Top Rated
Parenting Top Rated
Divorce Top Rated
Professional Top Rated
Reference Top Rated
Religion Top Rated
Romance Top Rated
Science Top Rated
Physics Top Rated
Chemistry Top Rated
Astronomy Top Rated
Psychology Top Rated
Science Fiction Top Rated
Sports Top Rated
Teens Top Rated
Travel Top Rated
USA Top Rated
Europe Top Rated
France Top Rated
Italy Top Rated
England Top Rated
China Top Rated
All Books Arts Biography Click Here For An A-Z Index Of All 213 Best-Seller Subjects Business Children's Comics
Computers Cooking Engineering Entertainment Health History Home Horror Humor Law Fiction Medicine Mystery
Nonfiction Outdoors Parenting Professional Reference Religion Romance Science Sci-Fi Sports Teens Travel
In Association with Amazon.com

Cache miss
(not cached)