October 26, 2014
Orange, California
Last week, I posted a few comments about the three legal systems used in the world today: the civil law system, the Islamic law system, and the common law system.
Within each of these three systems, the Law may be divided into two broad categories: constitutional laws and nonconstitutional laws. Constitutional laws are those which constitute, or create, or establish the society. Every society has a set of constitutional laws, whether a nation-state or a neighborhood bridge club. Constitutional laws define or describe who is a member of the society, and, perhaps more importantly, who is not; how and by whom society-wide decisions are to be made and how collective action is to be taken; and what topics are subject to collective action, and what are not. Constitutional laws are inherently political because they deal with the distribution of power within society, and are enforced through political means. Constitutions are also invitations to society-wide dialogue within a framework for continuing arguments about political and economic life. (1) This is a much broader definition that commonly used by practicing lawyers, judges or law professors and is important to keep in mind when analyzing the Law as an historical artifact or historical actor in its own right.
Constitutional laws may be, but need not be, included in a document entitled “constitution.” In his examination of the British constitution, John Phillip Reid explained that “it was not a set of directives adopted by the people granting government its prerogatives and limiting its powers. The British constitution, rather was an idea, a way of thinking and arguing about authority, an outline of governmental goals and principles derived from existing institutions, laws, and customs, and drawn by deduction from the patterns by which they functioned."(2) The British constitution is justly celebrated for being partly written and partly unwritten. The written parts include Magna Carta of 1215, the English Bill of Rights of 1689 and certain acts of Parliament.(3) The unwritten parts are the political traditions of England stretching back a thousand years to time immemorial.(4)
We Americans are justly proud of our written Constitution. This document, at two and a quarter centuries years old, is one of the oldest written constitutions still in force, and one of the shortest being only about 7,400 words long in seven articles and twenty-seven amendments. Nevertheless, when the United States Constitution does not explicitly define some important aspects, an unwritten constitution made up of “venerable Supreme Court opinions, landmark congressional statutes, and iconic presidential proclamations,”(5) together with “textual silences, ... archaic assumptions,”(6) and the political traditions and customs of the American people fills the gaps. For example, laws which define who is a member of the society called the United States of America, but which are not in the document entitled “The Constitution,” are the Supreme Court’s decisions in Scott v. Sandford, which excluded African Americans,(7) and in United States v. Wong Kim Ark, which included the children of immigrants as native-born citizens,(8) and the acts of admission for each of the thirty-seven States admitted after Rhode Island. Another very important constitutional law of this sort is not a law in the usual sense at all. When Confederate Gen. Robert E. Lee surrendered to Union Lt. Gen. Ulysses S. Grant on April 9, 1865 at Appomattox Courthouse, Virginia, Lee established the constitutional law that the United States was an indissoluble union. Laws which deal with how and by whom collective decisions are to be made include the Supreme Court’s decision in Marbury v. Madison,(9) the 1842 statute which requires the House of Representatives to be apportioned in single-seat districts,(10) and the Communist Control Act which banned the Communist Party of the USA.(11) Laws which deal with what topics are subject to collective action are the Supreme Court’s decision in Heart of Atlanta Motel v. United States in which the Court approved Congress using its commerce power to protect civil rights,(12) and the Religious Freedom Restoration Act of 1993 which expanded the protections provided by the First Amendment to the Constitution beyond the minimum level established by the Supreme Court.(13)
Nonconstitutional laws are those laws which address all other issues. They may be enforced by institutions of competent jurisdiction. Thus, a constitutional law establishes the powers of society through society’s agent, the government, while a nonconstitutional law determines the relationships of private individuals within society. Nonconstitutional laws must not be confused with unconstitutional laws. An unconstitutional law is one that is in some way incompatible with the constitutional law.
Although the boundary between constitutional laws and nonconstitutional laws can be a little fuzzy, a close examination of specific laws makes the distinction clear. For example, the Contracts Clause is constitutional law, as is the liberty of contract, but the law of contracts is nonconstitutional. The Contracts Clause is found in article I, section 10 of the United States Constitution, “No State shall ... pass any ... Law impairing the Obligation of Contracts.” It removes the topic of State bankruptcy and debtor-relief laws from consideration for collective action by the States which are members of the society called the United States of America. It was intended by the Founding Fathers to encourage the development of a continent-wide, free-trade zone.(14) Liberty of contract was not an explicit textual provision of the Constitution, but was an interpretation of the Fifth, Ninth and Fourteenth Amendments holding that individuals had freedom to enter into contracts without undue government interference.(15) Both the Contracts Clause and the liberty of contract are constitutional laws because they restrict the power of the government to interfere with private relationships. On the other hand, the law of contracts is a huge body of statutes and common law principles that governs the formation, execution and enforcement of private agreements. Although the law of contracts places certain limits on the sorts of contracts that may be made or enforced, it remains nonconstitutional because it deals with the relationships between individual members of society and because its terms are enforceable by common law courts.
--- To Be Continuted ---
Notes:
(1) Joseph J. Ellis, Founding Brothers: The Revolutionary Generations (New York: Random House, 2000) 78; Thomas L. Friedman and Michael Mandelbaum, That Used To Be Us: How America Fell Behind in the World It Invented and How We Can Come Back (New York: Farrar, Straus and Giroux, 2011) 33; Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (New York: Henry Holt & Co., 2006) 270.
(2) John Phillip Reid, Constitutional History of the American Revolution, abridged ed. (Madison: University of Wisconsin Press, 1995) 3.
(3) J. Harvey and L. Bather, The British Constitution (New York: St. Martin’s Press, 1964) 4-5; Goldwin Smith, A Constitutional and Legal History of England (New York: Dorset Press, 1990) 520-522; Thoburn v Sunderland City Council, 3 W.L.R. 247 (Q.B. 2002).
(4) Ibid.
(5) Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 2012) ix.
(6) Samuel Issacharoff and Richard H. Pildes, “Politics As Markets: Partisan Lockups of the Democratic Process,” Stanford Law Review, 50 (1998): 714-715 (1998).
(7) Scott v. Sandford, 60 U.S. 393 (1857) (Overruled by U.S. Const., amend. xiv, § 1).
(8) United States v. Wong Kim Ark, 169 U.S. 649 (1898).
(9) Marbury v. Madison, 5 U.S. 137 (1803).
(10) Apportionment Act of 1842, ch. 47, § 2, 5 Stat. 491 (June 25, 1842), repealed see now Apportionment Act of 1967, P.L. 90-196, 81 Stat. 581 (Dec. 14, 1967) codified at 2 U.S.C.A. § 2c (2014).
(11) Communist Control Act of 1954, ch. 882, 68 Stat. 775 (Aug. 24, 1954) codified as amended 50 U.S.C.A. §§ 841-844 (2014).
(12) Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
(13) Religious Freedom Restoration Act of 1993, P.L. 103-141, 107 Stat. 1488 (Nov. 16, 1993) codified as amended 42 U.S.C.A. §§ 2000bb-2000bb-4 (2014).
(14) Douglas W. Kmiec, “Contracts Clause,” in Kermit Hall, ed., The Oxford Companion to the Supreme Court of the United States, 2d ed. (New York: Oxford University, 2005) 224-225.
(15) Peter Charles Hoffer, “Contract, Freedom of,” in Kermit Hall, ed., The Oxford Companion to the Supreme Court of the United States, 2d ed. (New York: Oxford University Press, 2005) 223-224.
October 13, 2014
Orange, California
Last week, I posted a few comments about the history of the Supreme Court of the United States. This week I decided to take a broader approach and write about law in general.
Broadly speaking, there are three legal systems followed in the world today: civil law, Islamic law, and common law. The civil law or code system is based on the idea that Law is a set of rules, sometimes expressed in terms of “Thou shalt ...” or “Thou shalt not ...,” or as if-then statements. These rules are written in a code or other authoritative text, sometimes quite literally in stone, so that all people can know what the Law is and adjust their behavior accordingly. Judicial precedent is of secondary, if any, importance. The civil law tradition is the oldest of the three and its origins go back to the earliest civilizations. Ancient examples include the Code of Hammurabi and the Law of Moses. China independently developed a similar legal tradition known as legalism, or fa-chia, literally school of law. More directly, in the Western world, the civil law tradition’s origins are in Roman law dating to the Twelve Tables of 450 BCE. It was especially influenced by the Byzantine Emperor Justinian the Great in the sixth century CE, by the canon law of the Roman Catholic Church during the Middle Ages, and by the French Emperor Napoleon Bonaparte in the early nineteenth century. Colonialism spread the civil law tradition across continental Europe, Latin America, francophone Africa, the Republic of South Africa, the State of Louisiana, the Provence of Quebec, and Japan. The term “civil law” is used in the United States to mean that branch of law dealing with private interactions such as property, contracts and torts, as distinguished from the law of crime and punishment, or criminal law, and the law of governmental regulation, or administrative law. It is not the same as the civil law tradition, and must not be confused.
Islamic law is also a code-based system and its origins are in the Holy Qur’an. It is the basis of the legal system in Saudi Arabia, Sudan, and Iran, among other places mostly in North Africa and South Asia.
In simplest terms, common law is a legal custom. It is not a fixed set of rules per se, but a set of guidelines based on reason, experience, and notions of liberty, equality, justice, mercy, good and evil. One of the common law’s main features is its reliance on prior judicial decisions called precedent. For this reason, the common law is sometimes referred to “judge-made law.” Because precedent is almost always followed by courts in subsequent cases, a practice known as stare decisis, individuals can know how similar disputes likely will be resolved in the future and thereby avoid them. The common law’s two other main features are its use of the adversarial system, in which the interested parties present their cases to a neutral fact finder, and the use of a lay jury as that fact finder more often than not. The common law evolved in England beginning in the reign of King Henry II in the mid-twelfth century. Colonialism spread the common law system, and it is the basis of law in most members of the British Commonwealth of Nations and former British colonies, including the United States of America.
— To be continued —
October 6, 2014
Orange, California
Today, the first Monday in October, begins the 2014-2015 of the Supreme Court of the United States. Over the next seven to eight months, the Court will hear and decide about one hundred “cases, in law and equity, arising under [the] Constitution, the laws of the United States, and Treaties made ... under their authority,” and “controversies to which the United States shall be a Party.”1 In doing so, the Court may rule that certain laws passed by Congress and signed by the President to be unconstitutional.
Why is this awesome power held by only nine people, in actual practice only five? Why are there nine justices on the United States Supreme Court? By the time the Constitutional Convention got around to dealing with the federal judiciary, late summer 1787, they were tired and cranky, and wanted to finish the Constitution and get it into the hands of the State legislatures for ratification as soon as possible. The Framers decided to punt and let Congress handle the details. Article I, section 8 authorizes Congress to “establish tribunals inferior to the Supreme Court.” Article III, section 1 specifies, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although a “Chief Justice” is mentioned in connection with the impeachment of the President,2 the exact make-up of the Supreme Court is not specified.
The Judiciary Act of 1789 set the membership of the Court at six, one Chief Justice and five associate justices.3 Over the next century the make up of the Court was altered from time to time, often for patently political reasons. Alfred H. Kelly, Winfred A. Harbison and Herman Belz pointed out, “Historically, the most feasible and expeditious way of influencing judicial interpretation of the Constitution has been to change the composition of the Supreme Court by altering its size.”4 After the Democratic-Republican electoral success in 1800, the defeated, lame-duck Federalists reduced the size of the Court to five members, effective upon the first vacancy to occur, simply to prevent the hated Thomas Jefferson from making an appointment to the Court.5 The Democratic-Republicans increased the number back to six in 1802 so Jefferson could make his appointment, of William Johnson in 1804, after all.6 In 1807, Congress added an additional seat to make the total seven in 1807, giving Jefferson a second appointment, and increased the total to nine in 1837, giving two appointments to Andrew Jackson.7 In 1863, Congress increased the number of Associate Justices to nine, thereby making the total membership of the Court ten, so Abraham Lincoln could have an extra appointment, and then reduced the total number to seven in 1866, so Andrew Johnson could not. The final change to the Court’s size was in 1869 when membership was increased to nine, during Ulysses S. Grant’s administration, and has remained so ever since establishing a unwritten constitutional tradition.8 That the number nine had become essentially constitutional was made abundantly clear in 1937 when President Franklin D. Roosevelt attempted to “pack” the Supreme Court with sympathetic jurists. The constitutional tradition was defended by Congress, which resoundingly defeated Roosevelt’s proposal, and the public which fully supported Congress.9
Nine has become the magic number for Supreme Court membership by tradition and by statute. The three women and six men who currently sit on the Court hold the power to decide the most important and pressing public questions in the country. Let us all hope and pray they decide well.
Notes:
1. U.S. Constitution, art. iii, § 2 (1788).
2. U.S. Constitution, art. i, § 3 (1788)
3. Alfred H. Kelly, Winfred A. Harbison and Herman Belz, The American Constitution: Its Origins and Development, 6th ed. (New York: W.W. Norton & Co., 1983) 496.
4. Ibid.
5. Ibid., 168.
6. Ibid.
7. Ibid.; Peter G. Fish, “Justices, Number of,” in Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States, 2d ed. (New York: Oxford University Press, 2006) 550.
8. Kelly, Harbison and Belz, The American Constitution, 496.
9. See e.g., James F. Simon, FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle of the New Deal (New York: Simon & Schuster, 2012); Burt Solomon, FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy (New York: Walker & Co., 2009); William E. Leuchtenburg, “The Origins of Franklin D. Roosevelt’s ‘Court-Packing’ Plan,” The Supreme Court Review, 1966: 347-400; Jamie L. Carson and Benjamin A. Kleinerman, “A Switch in Time Saves Nine: Institutions, Strategic Actors, and FDR's Court-Packing Plan,” Public Choice, 113, no. 3/4 (Dec., 2002): 301-324.