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Souter, J., dissenting
have functioned as a limitation on their understanding of the new Nation's constitutional powers, this turns out not to be so at all. One of the characteristics of the founding generation, on the contrary, was its joinder of an appreciation of its immediate and powerful common-law heritage with caution in settling that inheritance on the political systems of the new Republic. It is not that the Framers failed to see themselves to be children of the common law; as one of their contemporaries put it, "[w]e live in the midst of the common law, we inhale it at every breath, imbibe it at every pore . . . [and] cannot learn another system of laws without learning at the same time another language." P. Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States 91 (1824). But still it is clear that the adoption of English common law in America was not taken for granted, and that the exact manner and extent of the common law's reception were subject to careful consideration by courts and legislatures in each of the new States.27 An
examination of the States' experience with common-law reception will shed light on subsequent theory and practice at the national level, and demonstrate that our history is entirely at odds with Hans's resort to a common-law principle to limit the Constitution's contrary text.
1
This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that "[t]he
27 See, e. g., Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791, 796 (1951) ("Whether we emphasize the imitation by the colonists of the practices of English local courts or whether we say the early colonial judges were really applying their own common-sense ideas of justice, the fact remains that there was an incomplete acceptance in America of English legal principles, and this indigenous law which developed in America remained as a significant source of law after the Revolution").
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