If common law is judge-made law, as every law student these days is taught to think and as every political scientist who bothers to notice it presumes, then one easily enough understands why it is viewed by patriotic American citizens with suspicion. Everyone who reads the Constitution knows that the legislative power is vested in Congress, not the courts. Everyone who follows the courts knows that their constitutional decisions are treated in the press as judicial policy-making. And everyone who can connect the dots would conclude that common-law is the seductress leading judges away from their proper function of doing justice according to law in particular cases brought before them, and into the heady business of rewriting the Constitution when lobbied through the vehicle of a high-profile case.
Justice Scalia put this charge memorably in his book, A Matter of Interpretation, saying law students are taught in their common-law courses the art of “playing judge, which in turn consists of playing king—devising, out of the brilliance of one’s mind, those laws that are to govern mankind.”
On March 4, 1629, John Selden, the most learned man in England, was imprisoned in the Tower of London. He had been arrested on charges of conspiracy and sedition against King Charles I. The question is: what did Selden choose to read while imprisoned?