As Thomas Jefferson pointed out, English common law goes back to Anglo-Saxon times, when England was still pagan. So Christianity has never been part of the common law. The only purpose of government is ensure our safety and health, maintain order and enforce legal obligations. The nine original common law felonies (or "true crimes", according to Steven Gifis in his Law Dictionary) were homicide, mayhem, arson, rape, robbery, burglary, larceny, prison breach and rescue of a felon. None of them drinking, dancing, blasphemy or pornography. And retribution is not in any way part of ensuring our safety or health, public order or enforcing legal obligations. It's revenge plain and simple. And if you want that, you'll have to do it yourself.
While the nine original crimes are foundational to common law, the system is far broader. Common law is a dynamic framework, evolving to address new legal and societal challenges, with its principles often informing and shaping modern statutory law. If common law had not been expanded beyond its original scope, the legal system would likely face significant limitations in addressing modern societal and technological challenges. The expansion of common law has been essential for creating a robust, adaptable, and just legal system. Without this evolution, the legal system would struggle to address contemporary issues, resulting in legal gaps, inefficiency, and injustice. The adaptability of common law has been its greatest strength, allowing it to evolve alongside society.
There are no common law federal crimes in the U.S. Criminal law at the federal level in the U.S is now entirely statutory and codified, although some fifteen states retain common law crimes. Certainty in the law is particularly important in defining crimes, and that hasn't been the forte of the judge-made CL system. In the U.S., common law is most often encountered in the field of torts or civil liability. Retributive justice has its critics, but is alive and well in the U.S. criminal justice system of the U.S. and most other countries. It appeals to the concepts of reciprocity and proportionality in human psyches, and was important as an alternative to vigilantism. We encounter the psychology behind it when the families of victims are distraught when the murderer of a loved one is pardoned or receives a lighter sentence than they think is appropriate.
So anyways, just to review, for the rights in the US Bill of Rights, there were no exceptions. Some might say, well, maybe a compelling state interest. But compelling state interest? What is that? Compelling state interest was actually invented (conservatives take note) by the liberal Warren court in 1963. There are no compelling state interests that overrule basic rights. Like someone once said, "congress shall make no law". If George Washington or Benjamin Franklin were around today, they'd say "'No law' means 'no law'. There are no exceptions". There were some classical exceptions though before 1963. The three classical exceptions to free speech were sedition, libel/slander and blasphemy. I was surprised to learn recently that Washington and Franklin would just see things like obscenity and pornography as a form of blasphemy, basically. But a religious establishment is forbidden by the First Amendment too. And the only purpose of government is for justice, peaceful coexistence, military and general welfare. Not people's personal moral agendas. Plus I was also reading recently that we live in a very different world than Washington and Jefferson's time. Jefferson opposed things like a national bank and strong central government because back then they would only be used for evil. Now they are used for good and to protect rights. And if Jefferson or Washington were around today, they would see that.
This statement is misleading. The rights stated in the Bill of rights have always been subject to exceptions, as determined by the judiciary. For example, freedom of speech is certainly a basic right. But some speedh is not "protected speech' under the First Amendment: the old cliche of not being able to cry "Fire" in a crowded theater. You mentioned other recognized exceptions: sedition, defamation, and "blasphemy" (still on the books in some states and litigated as recently as Kalman v. Cortes in 2010, which held the Pennsylvania blasphemy law to be unconstitutional.) As for "compelling state interest", that's very much alive in cases involving abridgement of "fundamental" rights--a category including rights specified in the U.S.Constitution. Freedom of Speech Freedom of religion jury trial in criminal cases Protection Against self-incrimination Protection Against unreasonable searches and seizures equal protection of the laws Right to vote As well as some not specifically mentioned in the Constitution marriage privacy contraception interstate travel procreation custody of one's children fundamental right The category was indeed "invented" by the Supreme Court, in the process of interpreting the Constitution. But that doesn't make it any less real. It would take a subsequent ruling by the Court or a Constitutional Amendment to change its status. Actually, a very conservative court included the right of contract on the list, but that was removed by the more liberal one under FDR. The significance of "fundamental rights" status comes up when a state regulation restricts one of them. No rights, even religion and speech, are absolute. Child sacrifice would probably not qualify for first amendment protection. Polygamy doesn't. BUT where fundamental rights are involved, the courts apply Strict Scrutiny. I.e., instead of giving a state regulation the benefit of the doubt under the "rational basis'' test, as is the usual practice where non-fundamental interests are concerned, the regulation restricting a fundamental right is presumed unconstitutional unless the state can show there's a compelling state interest. The burden of proof shifts to the state to show that it's regulation is especially necessary to protect the health, safety, welfare, or morals of the state citizenry. In addition, it must show that the regulation is the "least restrictive means" for accomplishing that purpose. But if the state can show that, as it did, for example, in a case involving internment of Japanese during World War II, the courts will allow it !
