Deep State’s Enemy: the Common Law

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Deep State’s Enemy: the Common Law

Jim Harper – Non-resident Senior Fellow, American Enterprise Institute




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An untold part of what threatens liberty in the United States is the loss of the common law tradition inherited from England at the nation’s founding. Common law is a system for making and amending rules that solve real disputes when needed. It contrasts with the civil law system of continental Europe in which experts write the rules from above for the people to follow.

As often as not, legislation and regulation doesn’t solve problems but moves people and their property around like pawns on a chess board.

Information Age problems such as threats to privacy could be addressed by common law principles. Recognizing personal information as property, for example, when people have protected it, would mean that it cannot be searched and seized without a probable cause warrant.

With more and more rules written by politicians and bureaucrats, the administrative deep state has become a behemoth. Can we return to traditional common law principles that solve problems, leaves people alone, and empowers them to thrive?

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