Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
2
History confirms the wisdom of Madison's abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison's counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this
risdiction," ante, at 69, however; it is abundantly clear that we have drawn both sorts of principles from the common law. See, e. g., Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 609 (1990) (plurality opinion of Scalia, J.) (noting that American notion of personal jurisdiction is a "common-law principle" that predates the Fourteenth Amendment). Nothing in the history, moreover, suggests that common-law rules were more immutable when they were jurisdictional rather than substantive in nature. Nor is it true that "the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment." Ante, at 69. The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial. See n. 34, supra. Indeed, that Amendment vividly illustrates the distinction between provisions intended to adopt the common law (the Amendment specifically mentions the "common law" and states that the common-law right "shall be preserved") and those provisions, like the Eleventh Amendment, that may have been inspired by a common-law right but include no language of adoption or specific reference. Finally, the Court's recourse to a vague "jurisprudence in all civilized nations," ante, at 69, rather than the common law of England is unavailing. When the Constitution has received such general principles into our law, for example, in the Admiralty Clause's adoption of the general "law of nations" or "law of the sea," those principles have always been subject to change by congressional enactment. See, e. g., Panama R. Co. v. Johnson, 264 U. S. 375, 386 (1924) (noting that although "the principles of the general maritime law, sometimes called the law of the sea," were "embodied" in Art. III, § 2, of the Constitution, they remained "subject to power in Congress to alter, qualify or supplement"); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) (stating that the Court would be "bound by the law of nations" until Congress passed a contrary enactment).
165
Page: Index Previous 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 NextLast modified: October 4, 2007