What Samuel Alito is wrong about English common law

And for the court’s Catholic judges, it makes even less sense to deny rights based on what pre-revolutionary English jurists once thought. For about a century and a half before American independence, the English legal system imposed a wide range of civil and religious restrictions on English Catholics who had refused to convert to the Anglican faith. Catholics were repeatedly prohibited from voting, teaching, owning or carrying firearms, inheriting land owned by non-Catholics, and holding public office. The last statutory restrictions imposed on Catholics, including the ability to serve in the judiciary, were not repealed until the British government swept them away in 1829, not out of good heart but to ward off an impending uprising in Ireland.

Prior to this, anti-Catholic measures enjoyed good support from the English legal establishment. Coke, in his Institutes, discussed the crime of praemunire, which generally meant upholding any foreign jurisdiction over England, but often referred specifically to those who upheld papal authority. Coke noted favorably that “From and after conviction the accused shall be out of the protection of the king, and his lands and buildings, property and personal effects, forfeited to the king: and his body shall remain in prison at pleasure of the King”. About a century later, Blackstone concluded that it was no longer legally defensible to kill a man guilty of praemunire on sight, as Coke had once thought. But he added that the defendant still generally loses the protection of the English legal system, “being so far removed from the protection of the law, that he will not protect his civil rights, nor remedy what he might suffer as a than individual”.

Fortunately, Alito and the other four Catholic judges need not worry about a reversal of Catholic emancipation in the United States. One of the most important things that early Americans got rid of after independence was the overt religious bigotry that had consumed Europe for centuries. The Constitution explicitly prohibits religious testing for public office, and the First Amendment directly prohibits the creation of an established church. And even if they did not, it would be unthinkable to rely on centuries-old texts on English law to deprive American Catholics of their equal role in modern society. It should be equally unthinkable to use them to revoke any constitutional rights held by Americans in this century.