re: #117 KGxvi

Judges and law professors are always very quick to point out that there is no federal common law. And that’s true to a point. But federal judges are prone to rely on common law understanding in constitutional law cases, and it’s really fairly easy to draw a line between traditional English common law (pre-1776) and Equal Protection jurisprudence (especially post 14th Amendment).

I’d go so far as to argue that the 9th Amendment was intended to give courts the power to continue the common law tradition, which more than anything was a historical practice by the courts of recognizing/declaring pre-existing natural rights.

So, yes, there’s no federal common law - and most of the States have taken to ratifying common law traditions to varying degrees. But, also, the courts have continued to recognize and protect natural rights.

US v. Wong Kim Ark says very explicitly that US jus soli citizenship is based on the English common law definition of natural born subject. Since there is no definition of “natural born” citizen in the US Constitution, the concept has to be based in common law.