Washington Law Review


Kenneth C. Cole


Bills of Rights are like New Year's Resolutions. The discipline they impose is self-imposed. It is also usually imposed in a period of sobriety in the fond hope that the conditions which brought forth excesses in the past will not do so in the future. And, more often than not, the history of nations like that of individuals teaches that while the spirit may be willing the flesh is weak. The flesh is weak because solemn declarations of good intention may have no roots in past performance—the history of the people may have developed no institutions providing an earnest that the good resolutions can be kept. They remain so many pious words abstracted from the character of the people for whom they are made. In the case of the American Bill of Rights this is happily not the case. There is practically nothing in our bill of rights which had not already been hammered out on the anvil of the English common law. There is hardly anything which does not presuppose the institution of courts and procedures on the common law model. In fact, I may go further and state as part of my thesis that the formal language of the first eight amendments to our federal Constitution (usually called our Bill of Rights) has been only a convenient peg upon which our courts have hung a common law version of individual liberties.

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