British institutions were important (although not controlling) models for the American Constitution-makers.
For example, the Constitutionโs bicameral federal Congress had some similarities with the British Parliament. The Constitution built on the British concept of individual rights. The new U.S. postal system was a continuation of its British predecessor, with the Constitution borrowing its โPost Office and Post Roadsโ language (Article I, Section 8, Clause 7) from a 1767 parliamentary statute.
Further, the Constitution struck a balance of power between the federal government and the states similar to the balance existing prior to 1764 between the imperial government in London and the American colonies. To be sure, the Constitution did grant taxing authority to the new federal Congress although Americans had refused to concede such authority to Parliament (because they were unrepresented).
Adopting English Law
By the time of the Declaration of Independence, the legal system prevailing in England (although not in Scotland) had taken root in almost all of Britainโs American colonies.
There were exceptions: One colony, Quebec, applied French law. And other colonies rejected Englandโs rules of aristocratic privilege and much of her ecclesiastical and land law. Still, American judges usually imported and followed English case precedents, and their courts were patterned loosely on English institutions.
Thus, by 1776, the English legal system had become Anglo-American in scope.
Americans Continue to Apply Anglo-American Law
After Independence, some Americans proposed breaking with Anglo-American jurisprudence. In general, however, Americans continued to apply it. There were several reasons:
First, Americans were used to the pre-existing system. Radically altering it would have been very disruptive.
Second, Anglo-American jurisprudence incorporated Magna Carta (first adopted in 1215; final version in 1225). Magna Carta was probably theย most significantย secular constitutional document in human history. It served as the cornerstone for many of the rights of Englishmen and Americans. Likewise, Anglo-American jurisprudence incorporated other great documents fortifying individual liberties: the Petition of Right (1628), the Habeas Corpus Act (1679), and the English Bill of Rights (1689).
Another attractive feature of Anglo-American jurisprudence is that it was based on standing precedentโfreely available in published law booksโand the slow evolution of that precedent. This usually made the โright answerโ in disputes fairly predictable.
On the other hand, Anglo-American jurisprudence could be flexible. When an old set of rules wasnโt equal to a task, a new one was fashioned. By 1776, Anglo-American jurisprudence encompassed several discrete fieldsโmost notably:
- ecclesiastical law (used in America only for certain kinds of cases, such as divorce);
- โequityโ for cases involving fiduciaries and for specialized remedies;
- the โlaw merchantโ for regulating cross-border trade, and, most notably,
- the โcommon lawโ for handling routine crimes, injuries, contracts, and property disputes. The principles of the common law were based largely on individual freedom and resistance to arbitrary power.
Anglo-American judges generally were of high quality. To an extraordinary degree, they decided cases independently of politics or personal interest. This had not always been true, but by 1776 it was predominantly true.
In most cases, Anglo-American jurisprudence granted at least one party a right to trial by jury. Juries introduced common sense into decision making. They also protected somewhat against abuse of power.
Still another reason for retaining Anglo-American legal practice is that it almost always gave unhappy parties a right to appeal.
The founding generationโs decision to retain Anglo-American jurisprudence was a lasting one. Even today, most states haveย reception rules. These rules direct judges, in the absence of other authority, to follow the common law of England.
Coke and Blackstone
In 1788 the London publisher John Worrell issued a bibliography listing then-published books of English law. I have placed it on the internet (pdf). Itโs merely a list of books, yet it consumes nearly 300 pages.
Obviously, no lawyer could own all those books. But many were generally available, at least in the larger cities.
They included (pdf) collections of statutes, collections of cases, multi-volume โabridgmentsโ summarizing decided cases, law dictionaries, collections of forms for writing legal documents, and legal treatises. Treatises either focused on particular areas, such as commercial law or crimes, or were more generalโpurporting to discuss the law covering all important areas.
In both England and America two general works stood out among the rest. The earlier was the โInstitutes of the Lawes [sic] of England,โ written by the great 17th-century judge and parliamentarian Edward Coke (pronounced โCookโ). This book was tough going, but served as a primary teaching guide for law students. Senior members of the founding generation, such as Edmund Pendleton of Virginia and John Dickinson of Delaware and Pennsylvania, learned their law from Coke.
The other popular general treatise was William Blackstoneโs โCommentaries on the Laws of England.โ Blackstone was a judge who became the first professor to teach the common law at Oxford University. His โCommentariesโ were based on his university lectures. Published over the years 1766 to 1769, Blackstoneโs work was both more up-to-date than Cokeโs and easier to understand. After 1772 and throughout much of the 19th century, Blackstoneโs treatise was the backbone of legal education in America.
Anglo-American Law and the Constitution
The framers wrote the Constitution with Anglo-American jurisprudence in mind. In aย 2016 article, I listed 68 words and phrases in the Constitution that derive directly or indirectly from 18th-century English law. (Most are explained in my book, โThe Original Constitution.โ)
Many of the framers probably wanted the Constitution to be understood by the average educated person. So why did they insert so many legal terms?
In part, it was unavoidable: The Constitution is a legal document, and if the framers had tried to explain everything in ordinary language, the Constitution would have stretched from here to Cincinnati. (If you live in Cincinnati, think โhere to Denverโ). It would have been immensely long.
But the other reason was thatโas I noted in theย previous essayย in this seriesโAmericans of the founding generation were more legally literate than most Americans today. In a March 22, 1775, speech, Edmund Burke, perhaps the greatest British parliamentarian of his time, said of the American colonies:
โIn no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the [First Continental] Congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion [i.e., religion], were so many books as those on the law exported to the Plantations [i.e., colonies]. โฆ I hear that they have sold nearly as many of Blackstoneโs Commentaries in America as in England. General Gage [the British commander in Boston] โฆ states that all the people in his government are lawyers, or smatterers in law โฆ.โ
A Problem With Modern โConstitutional Lawโ
Most lawyers and legal educators are unaware that so many of the Constitutionโs words and phrases arose from English practice. Students rarely learn about them in law schoolโa neglect characteristic of what Alan Watson, the noted Scottish scholar, called โThe Shame of American Legal Education.โ
Talk to any third-year law student, and he or she will tell you a professor assigned opinions authored by the great Chief Justice John Marshall. But examine the assigned versions, and youโll find they omit Marshallโs references to prior English and American cases and legal sources.
One reason for these omissions is editorial ignorance. But another, I think, is that most law professors are fans of liberal judicial activism, and omitting Marshallโs sources fosters the illusion that Marshall himself was a liberal judicial activist. Whatever the reason, the result is ignorance among lawyers and judges of the background for much of the Constitutionโs language.
The Constitutionโs framers wrote the document to be construed by judges who understand the Anglo-American precedents and adhere to English-style judicial standards of independence and probity. When judges donโt live up to those standards, they effectively subvert our constitutional structure.
Read prior installments here:ย first,ย second,ย third,ย fourth,ย fifth,ย sixth,ย seventh,ย eighth,ย ninth,ย tenth,ย eleventh,ย twelfth,ย thirteenth,ย fourteenth,ย fifteenth,ย sixteenth,ย seventeenth, eighteenth, nineteenth, and twentieth.
- How the Founders Explained Limits on the Federal Government - January 21, 2026
- The Constitution and the Trump Tariffs - December 7, 2025
- Ancient Rome and the Constitution - October 29, 2025