Why American law should stop following old English rules

Far be it from me to disagree on constitutional precepts with Dean Erwin Chemerinsky. But something in his recent column on the "imperial Supreme Court" struck me as strange. Chemerinsky, "The rise of the imperial Supreme Court," Jul. 15, 2025.

I fully agree with his idea that it is absurd for us to adopt by rote as legal precepts those things that the British did before we revolted and separated from them. His criticism of Trump v. CASA for holding that we must interpret the Judiciary Act of 1789 in the way that the British courts interpreted their law in (perhaps) similar circumstances seems more than strange. Indeed, shortly before Congress enacted that legislation, we fought a bloody war to divorce ourselves from the British. Why should we assume that we intended to align our laws with those of a sovereign that we had just rejected? Forcibly.

Our Declaration of Independence was a bill of particulars that listed many reasons why it was necessary for us to part company and go our separate way. Thus, it seems to me that the thing to do in interpreting provisions adopted by Congress in the early days of this republic would be to determine what works best for us, not what worked (for better or worse) under a king whose actions we had excoriated.

Dean Chemerinsky's column is too shortsighted. After all, this is neither the first nor the only time that the Supreme Court has interpreted our laws in the manner that it presumes the tyranny we had just left would have interpreted similar laws.

I have been a constitutional property rights lawyer for more than half a century. Thus, my focus is on the last phrase of the Fifth Amendment: "nor shall private property be taken for public use without just compensation." As such, it has been my pleasure and privilege to participate in a number of important Supreme Court property rights cases. One of them was City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999). A key issue in the case was whether the issue of government liability in a Fifth Amendment takings claim was to be decided by a judge or jury. The Court eventually decided that the issue was for the jury, but not without a spirited debate.

As I wrote about this shortly after the decision came down, I can simply quote myself: "The dispute between the majority and the dissent quickly devolved into a historical dispute over how things were done in England at the time the Seventh Amendment (the one that guarantees Americans the right to a jury trial) was adopted. (It has always been a mystery to me why we would tie such an important thing as the right to trial by jury to pre-revolutionary English practice. I thought that, at least by 1776, we had decided to throw off the shackles of English practice and start fresh. But, in a number of legal fields, the courts have limited our rights to those enjoyed in eighteenth-century England. Go figure.)" Michael M. Berger, "Municipal Myopia Run Rampant: City of Monterey v. Del Monte Dunes," 31 Urb. Law. 363, 369 (1999).

Having written that more than a quarter-century ago, I am hardly a newcomer to the issue of the need (or not) to determine what pre-revolution English law was in order to interpret our own law. To be clear, I don't think we should care. What matters is what our own law teaches. In short, I find myself in agreement with Chemerinsky's view on reliance on antiquated English law. I just don't think he has gone far enough. I would like to see an extended analysis on why we should care at all about old English practice and whether we should tie the hands of our legal interpretation (whether statutory or constitutional) to that hoary history. In my view, it is time to complete the revolution. This is not to say there is no wisdom in English common law practice that could be useful for us to consider, merely that we should not consider ourselves bound by it when interpreting our own law.