Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
I have already indicated that the Framers did not forget the state-law examples. When Antifederalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists' answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that "every State has made great inroads & with great propriety on this monarchical code." Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A (emphasis in original).57 Madison went on to insist that
subjugation to the mother country and, in any event, seldom enforced in practice. See Stoebuck, 10 Wm. & Mary L. Rev., at 396-398, 419-420. The traditional conception of the common law as it developed in England had always been that it was freely alterable by statute. T. Plucknett, A Concise History of the Common Law 336-337 (5th ed. 1956); see also T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century 26-31 (1922) (finding no historical support for the claim that common law was "fundamental" or otherwise superior to statutes). Coke appears to have attempted at one time to establish a paramount common law, see, e. g., Dr. Bonham's Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C. P. 1610), but that attempt never took root in England. See Plucknett, Concise History of the Common Law, at 337; Jones 130; J. Gough, Fundamental Law in English Constitutional History 202 (1955) (observing that "[b]y the nineteenth century the overriding authority of statute-law had become the accepted principle in the courts"). And although Coke's dictum was to have a somewhat greater influence in America, that influence took the form of providing an early foundation for the idea that courts might invalidate legislation that they found inconsistent with a written constitution. See Jones 130-132; Gough, supra, at 206- 207 (noting that Coke's view of fundamental law came to be transformed and subsumed in American practice by treatment of the written constitution as fundamental law in the exercise of judicial review). As I demonstrate infra, the idea that legislation may be struck down based on principles of common law or natural justice not located within the constitutional text has been squarely rejected in this country. See infra, at 165-168.
57 See also 3 Elliot's Debates 469-470 (Edmund Randolph, Virginia Convention) (arguing that constitutional incorporation of the common law would be "destructive to republican principles"). Indeed, one reason for
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