Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
under the proposed Constitution the people would not be "secured even in the enjoyment of the benefit of the common law." Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see also 3 Elliot's Debates 446-449 (Patrick Henry, Virginia Convention). In particular, the Antifederalists worried about the failure of the proposed Constitution to provide for a reception of "the great rights associated with due process" such as the right to a jury trial, Jay II, at 1256, and they argued that "Congress's powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain," id., at 1257.35 While Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e. g., 3 Elliot's Debates 451 (George Nicholas, Virginia Convention), they defended the decision against any general constitutional reception of the common law on the ground that constitutionalizing it would render it "immutable," see id., at 469-470 (Edmund Randolph, Virginia Convention), and not subject to revision by Congress, id., at 550 (Edmund Pendleton, Virginia Convention); see also infra, at 163-164.
The Framers also recognized that the diverse development of the common law in the several States made a general federal reception impossible. "The common law was not the same in any two of the Colonies," Madison observed; "in some the modifications were materially and extensively different." Report on the Virginia Resolutions, House of Delegates, Session of 1799-1800, Concerning Alien and Sedition Laws, in 6 Writings of James Madison 373 (G. Hunt ed. 1906)
35 See, e. g., 2 Elliot's Debates 400 (Thomas Tredwell, New York Convention) ("[W]e are ignorant whether [federal proceedings] shall be according to the common, civil, the Jewish, or Turkish law . . .").
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