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Fundamental Rights in Early American Case Law: 1789-1859

Abstract

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.

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The U.S. Constitution’s Emoluments Clauses: How History, Behavioral Psychology, and the Framers’ Understanding of Corruption All Require an End to President Trump’s Conflicts of Interest

President “shall not receive” any emolument, other than his fixed compensation, from “the United States, or any of them.” U.S. Const. art. II, § 1, cl. 7. Like the Foreign Emoluments Clause, it must also be read in light of the history that preceded the Framers’ choice of words. See infra , notes 13-32 and accompanying text. In the 17 th Century, it was customary for European heads of state to give elaborate and often expensive gifts. The intent was to create a sense of obligation on the part of the recipient. In 1651, the Dutch adopted a rule prohibiting their

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