コモン・ロー，憲法，自由(8・完) ―19世紀後期アメリカ法理論とLochner判決―

This article examines the common law backgrounds of late nineteenth and early twentieth century American constitutional theory. At that time, the Supreme Court of the United States declared many socioeconomic regulations, including labor laws, to be void under the Fourteenth Amendment to the Constitution. According to conventional wisdom, conservative justices hated progressive social reform and preferred big business. For those reasons, it is said, they held the laws unconstitutional. However, this paper proposes another explanation. Constitutional theory at that time was based on the common law tradition. Justices in the Lochner era tended to defend common law rights and common law principles in their constitutional interpretations. They considered constitutional rights protected by the Constitution to have been derived from the common law tradition. This last installment of this article examines today’s situation of constitutional law and common law. Unlike the nineteenth century, the deep relationship between the common law and the Constitution has largely disappeared. Constitutional rights are no longer only related to persons and property derived from the common law. Rather, the Supreme Court of the United States has created constitutional jurisprudence independent of the common law. For instance, the defamation law of the common law is no longer relevant the defamation law of the common law is no longer relevant to the First Amendment jurisprudence. Moreover, equal protection and privacy interests protected by the due process clauses are not rooted in the common law. However, even today the common law exerts some influence over constitutional jurisprudence. For instance, some scholars who support “living constitutionalism” say the common law tradition is composed of the unwritten constitution of the United States. Another scholar says that constitutional jurisprudence has evolved in the same way as common law development. Originalists, the strongest opponents of living constitutionalism, insist the common law at the time of the framing the Constitution is relevant to constitutional jurisprudence today. The late Supreme Court Justice Antonin Scalia believed the Second and Fourth Amendments should be interpreted according to the common law at the time of framing. Similarly, some scholars argue that the Constitution should be interpreted in accordance with the understanding of the common law in the late eighteenth century. The common law is to some extent relevant to constitutional law even today. However, its influence is limited compared to the nineteenth century. Today, lawyers refer to the common law as one of many historical sources from which constitutional meaning is derived