Department of State
"The
substance of the law at any given time pretty nearly corresponds, so
far as it goes, with what is then understood to be convenient; but its
form and machinery, and the degree to which it is able to work out
desired results, depend very much upon its past."
-- Oliver Wendell Holmes, Jr.
The Common Law (1881)
Americans
have gathered to make law since our colonial period and continue to
make law to maintain a well-regulated society. Although specific
procedures for creating law have developed over the centuries,
democratic law-making remains marked by a need to have the consent of
the people, a system of checks and balances, and a public policy
flexibility suited to the problems of time and place.
In
the 17th and 18th centuries, Americans sent delegates to colonial
assemblies to make needful rules for the regulation of daily economic
and social relations. Where a road should course or what constituted a
public nuisance could be debated and decided. Roads facilitated
commerce, and the disposal of agricultural waste was more than a
matter of aesthetics; both issues touched upon the health of a
well-regulated community.
In
the 19th century, Americans gathered in Missouri to make rules for the
governance of wagon trains. These "rules of the road" were intended to
safeguard their survival on the trek of thousands of miles to the
Pacific Coast. Gold rush miners when they arrived in the California
gold fields departed their wagon trains and gathered again to write
local mining district rules. These miners wanted a well-regulated
society protecting their enterprise and enabling its prosperity.
In
21st-century California, neighbors still gather to make rule changes,
within a recorded declaration of covenants, conditions, and
restrictions, on what property alterations are permissible for those
living within a housing tract. These property owners have the
authority to make needful rules for a well-regulated society. Whether
in township halls, capitol buildings, frontier settlements, or
up-scale living rooms in urban America, property owners, citizens, and
claimants of the American dream have gathered to make law for the
regulation of social and economic relations. That heritage resonates in
our local, state, and national law-making institutions.
Origins of U.S. legal traditions
This
everyday law-making process is part of an historical process that is
English in origin. When English colonists in colonial America put into
practice the law-making heritage that they brought with them, they
made certain alterations to suit their new environment. The King of
England granted charters to individual proprietors and joint stock
companies of entrepreneurs for the various colonies affording varying
degrees of law-making authority, but all English colonists had law
without current charters and colonial statutes. They had their ancient
constitution, the largely unwritten law of England known as the
"English common law," which prevented government from abusing the rights
of Englishmen. Included in this common law was Magna Charta -- the
charter signed by King John in 1215, which guaranteed due process of
law, the protection of property rights, and access to a jury. The
critical center of the ancient English law was the relationship
between private property and liberty. Private property in landholdings
had received favored legal protection and definition since the 14th
century, but English history and the American colonial experience
created a clear sense in American minds that only with the consent of a
sovereign people could rights in property and the exercise of personal
liberty be altered.
The
idea that governments derived legitimacy from the consent of the
governed had ancient origins in Greek and Roman history, and early
modern European political theorists had added substantially to the
concept of sovereignty as residing in the people. American colonists
of the Revolutionary War era advanced this concept by increasing the
rights specifically reserved to the people and further limiting
government's reach. These reserved rights would find their way into
state and national bills of rights that were written down.
Grappling
with how to prevent governments from trampling on rights by exceeding
the power delegated to them by the sovereign people, U.S.
constitutional convention delegates, state and national, created
systems of internal checks and balances within a separation of
law-making powers. Each branch of government would have independence
in the law-making scheme, but these powers would overlap, thus
constraining institutional reach within a system providing for broad
popular participation.
Extending the reach of law
The
extent of broad popular participation in government has varied with
America's history. At the nation's founding, only white and male
property owners constituted the participating element at the polls and
in law-making offices. In the 19th century, the property-holding
requirements for suffrage and office-holding broke down. But for many
years, the law-making excluded women, African slaves, American
Indians, and Asians. The campaign for equality grew during the 19th
century and triumphed in the 20th century. Women organized on the
local level to pressure legislators for rights. They joined anti-slavery
societies, declared for equality at Seneca Falls in 1848, and moved
west where they found far more fertile political soil for rights. In
the Wyoming and Utah Territories women won the right to vote in 1869
and 1870. Women gained community property rights via Spanish-Mexican
legal practice in California in 1849, but not the vote until 1911.
Women would have to inspire an amendment to the U.S. Constitution in
1920 to gain a national right to cast their votes.
African-Americans
won citizenship under the 14th Amendment of the Constitution in 1868
and African-American males the right to vote under the 15th Amendment
in 1870, but American Indians would not have citizenship or the vote
until 1924, while Asian immigrants would not win access to citizenship
until World War II. The children of Asians and other immigrant groups
born in the United States were citizens by virtue of birth in the
United States, but their parents did not have access to
naturalization. For Chinese immigrants excluded from citizenship by
statute since 1870, Congress extended naturalization rights in 1943 as
part of the war effort against Japan. For Japanese immigrants, the
McCarran-Walter Act of 1952 provided such access. Yet regardless of
whether they had the right to vote, Americans have petitioned their
law-making bodies seeking change. Women and African-Americans, even
before they had the vote, actively participated in the public,
political process of petition, protest, and advocacy. The fact that
law-making institutions were open to such democratic participation
enabled the public policy formation process to be inclusive, albeit at
a pace unsatisfactory to many of the participants at the time.
Universal suffrage
One
reason for this hesitancy to make suffrage universal was the prevailing
political philosophy of the 18th century. The English model, like
those prevailing in other countries at the time, generally had a male
king, Parliament, and judges buoyed by theories of mixed government
and rights derivative from land mostly owned by men. Yet much
political theory and rhetoric in its discussion of rights and
liberties seemed to imply that these values were universal. The rights
of Englishmen, then, as interpreted by Americans in America, formed
the constitutional basis for a revolution in 1776 to save the ancient
constitution of England from tyranny and preserve its promise for
Americans. How that goal would be worked out in practice was the job of
delegates assembled in state and federal constitutional conventions.
In
state constitutional conventions of the late 18th century, delegates
wrote documents that in a variety of ways fleshed out and expanded the
rights of American colonists. Maryland did relax the property
qualification in the election of delegates to its constitutional
convention. Georgia created a petition mechanism that led to new
constitutions in 1789, 1794, and 1797. The 1797 version contained an
amendment process rather than a convention vehicle for change.
Massachusetts
started a process in motion in 1776 that resulted in increased
authority in the people to make constitutional change. The Massachusetts
legislature (called the General Court) asked the state's towns to
authorize it to write a constitution in its next session. Towns,
rather than a majority of voters, controlled the fate of that
proposal, and Boston and eight other towns rejected the authority of
the legislature to write fundamental law for the state. In the ensuing
years, the towns authorized the General Court to act with the
authority of the towns to ratify a constitution. Eventually, however,
the towns, their citizens voting without normal property restrictions,
rejected this document. In 1779 the General Court conceded the
authority of the people voting in their towns to elect delegates to a
convention. The Massachusetts Constitution of 1780, based on such a
convention, eventually won ratification and its history established
several principles. First, conventions of elected delegates were
required for the writing of constitutions. Second, the people must be
guaranteed access to the process through elections and the amendment
process. Finally, the people must have the final authority in the ballot
box to ratify the constitution.
Liberty and property
The
Massachusetts Constitution was part of the context for the delegates
who assembled in 1787 in Philadelphia to write a federal constitution.
Another key part of the context was the developing relationship
between liberty and property in the law-making equation. The
17th-century English philosopher John Locke's political philosophy had
great influence in American thinking on this relationship. Locke had
argued that people agreed to live in a commonwealth so that government
would enforce natural law and rights. The rights of man in nature
included possessing liberty and property. Americans took this idea so
closely to heart that their political and constitutional rhetoric used
property law concepts when referring to personal liberty: Americans
could own liberty. Locke too thought life and liberty dependent upon
property, but individual use of property must not include waste or the
exclusion of other people from nature and its bounties. Thus, one
question for the delegates of the 1787 constitutional convention was
how best to protect both the fruits of liberty expressed in holding
private property and the access of the people to the bounties of the
land.
In
the U.S. Constitution, these delegates created a republican form of
government balancing interests and containing the elements of mixed
government. The concept of mixed government fuses historical elements
of monarchy, aristocracy, and popular government. Each of these three
forms of government had the tendency to favor itself; if left
unchecked constitutionally, each would result in an extreme form of
tyranny, oligarchy, and democracy. Each of these tendencies toward
power could also threaten the liberty of the people in their private
property, yet each interest needed representation to maintain a
well-regulated society. The solution put to practice by the
constitutional convention delegates provided for a separation of the
powers among the branches of government, yet an overlapping of the
institutional functions. Importantly, this overlapping created a kind
of institutional parity, with each branch retaining enough power to
balance the other branches.
Law-making at the national level
In
its 18th-century form, the national legislative body was made up of two
branches, the House of Representatives and the Senate. Voters within
districts within states elected members of the House in direct popular
elections. Initially, state legislatures elected U.S. senators. The
wish to balance the interests of less affluent people against the
interests of the propertied classes caused federal constitutional
convention delegates to opt for election of senators by state
legislatures at that time, in order to assure the representation of
propertied interests in the U.S. Senate. It was not until 1913 that
the 17th Amendment to the U.S. Constitution put the election of U.S.
senators directly in the hands of the people.
Under
the Constitution, the House and Senate constituted a congress that had
the authority to create and approve statutes. The president of the
United States had authority to execute those statutes. While it is not
spelled out in the Constitution, the president may also initiate
law-making by having members of his party introduce bills in Congress.
The federal judiciary had authority to interpret those statutes, and
the U.S. Supreme Court soon claimed the implied power to declare such
statutes -- laws -- unconstitutional. The president could veto a
statute, but the Congress could override that veto. Laws declared
unconstitutional could be changed to deal with the objections of the
courts, but Congress also could initiate a constitutional amendment if
it wanted to overturn a decision of the U.S. Supreme Court. The
overlapping system tends to be both conservative of individual rights
and protective of private property.
Law-making at the state level
As
the U.S. law-making system has developed at the state level, each state
has a similar structure of government, yet different traditions of
making law. State legislatures in some states meet annually and spend
most of the year in law-making. Other states have legislative sessions
that meet biennially for very short terms. The authority of these
legislatures to make law in the form of statutes is similar to the
authority of Congress to make needful laws for the country as a whole.
Some states have state constitutional provisions for the direct
popular amendment of the state constitution or the creation of law by
way of initiative and referendum, processes that allow ordinary
citizens to propose laws and regulations and put them up for popular
vote on state ballots.
Law-making: separation of powers
Whether
legislation or constitutional amendment is by means of direct popular
action or legislative process, these actions are subject to judicial
review. In both state and federal traditions, courts have the
authority to review legislation to determine whether it is in accord
with the constitution. Yet, following the concept of checks and
balances, courts are not entirely independent of the rest of the
political system. State court judges are often elected periodically.
Federal judges are appointed for life, yet both state and federal
judges are subject to impeachment for misconduct by the legislative
branch of government. Under certain circumstances, state governors have
the authority to appoint judges. Today it is a commonplace that
American courts make law in a sense -- through deciding cases. The
critical difference between legislative law-making and judicial
lawmaking is that courts can only decide cases that are brought before
them by litigants. Legislatures have far more breadth, yet they too
are constrained by the constitution as well as English common law
tradition. Courts, in deciding cases, consider the clear wording of
constitutions, prior case law, common-law traditions, and public policy.
In
sum, the American system of law-making rests on a foundation of
overlapping authority. States and state constitutions exist within a
federal system governed by a congress, president, and federal court
system constrained by the U. S. Constitution.
For
example, the commerce clause of the federal Constitution gives the U.S.
Congress the power "to regulate Commerce with foreign Nations, and
among the several States." The U.S. Supreme Court has interpreted this
wording to constrain the states from regulating interstate commerce
and intrastate commerce in ways that hamper interstate commerce. In
1964, this interpretation of the commerce clause extended
congressional authority to regulate public accommodations under the
Civil Rights Act of 1964, which prevented discrimination in renting
hotel rooms.
How
this overlap and interplay between state and federal interests works
out in practice depends upon myriad circumstances. The following
example will illustrate this. Congress, for example, has no explicit
power to tell the states how to set speed limits on their roads. This
decision resides in the hands of state lawmakers, county boards, and
city councils, depending upon the allocation of authority under state
constitutions and statutes. In the 20th century, some states had
highway speed limits set at 65 miles per hour for automobiles, and 55
miles per hour for semi-trailer trucks. Other states thought 75 miles
per hour on multi-lane freeways made more sense. Sparsely populated
states with vast distances between cities set speed limits at
"reasonable" under the circumstances. Driving in Montana at 70 miles
per hour or 120 miles per hour depended upon the road and driving
conditions. It was not very different from driving on Germany's
autobahn. Yet when America faced an energy crisis in the 1970s and
many in Congress believed that conservation required a national speed
limit of 55 miles per hour, Congress used the power of the purse to
persuade state legislators to change state law. Simply put, Congress
told the states that if they did not change their speed laws to comply
with the 55 miles per hour limit, federal highway dollars in the
millions would not be forthcoming. Americans were soon driving 55
miles per hour across the nation. State legislators had a choice and
they followed the federal dollars.
Fence law and federalism
The
cattle on Montana roads today is another example of the diversity of
law-making that has developed within the federal system. The issue of
whether cattle should run at large without restraint is as old as
America. Colonial legislators had to decide whether cattle owners
should fence their beasts to protect farmers' crops and gardens. To
fence would impose an expense upon cattle owners; to allow cattle to
run free would create a crop-damage expense upon farmers. Yet farmers
had common-law remedies against the cattle owners if the farmer could
catch the cow in the act, restrain the beast, determine its owner, and
haul him or her into a trial court.
Lawmakers
soon chose to create statutes requiring livestock owners to build
fences, and these statutes contained the definition of a legal fence.
This tradition continued across America until settlement reached the
Great Plains, the relatively dry region west of the 100th meridian, in
the 19th century. In the wooded eastern states, livestock owners
built fences, township fence viewers determined whether they complied
with law, and aggrieved farmers still hauled livestock owners into
court. Yet livestock owners with legal fences now had a defense
against their liability for damaged crops. On the Great Plains, the
range cattle industry of the 19th century and its interests sought cost
containment in the legislative declaration of open range law and
managed to revise the principle of fencing requirements. Under these
laws, the owners of crops and gardens had the expense of fencing
imposed upon them by statute if they wanted to collect for cattle
damages. With the demise of the range cattle industry in the 1880s,
the reason for open range law declined over the decades, yet in the
20th century some states, like Montana, retained the law.
Today
drivers on interstate highways in states like Montana see them fenced
at taxpayer expense, but not because of western open range statutes.
Rather, the safety of American motorists is at stake, and federal
dollars seek to protect drivers and passengers from harm. On state
highways in open range states, fences are few and signs warn motorists
that livestock might be on the road. As the complex patchwork of
fencing law and highway law makes clear, local, state, and federal
law-making bodies in the U.S. system have different authority and roles
in maintaining a well-regulated society.
Administrative agencies
In
the United States, there is an additional law-making institution with
legislative, executive, and judicial functions. That is the
administrative agency, a creation of the 19th century. The pioneer was
the New York Metropolitan Board of Health of 1866, but the railway
commissions of the 1870s and 1880s pushed the concept of
administrative agencies -- usually appointed boards of experts who
made public policy independent of legislatures -- into public view and
judicial scrutiny.
After
decades of judicial concern regarding the undue delegation of
legislative authority to administrative agencies, these institutions
gained substantial administrative and constitutional authority in the
early 20th century. The focus of regulation was public welfare,
whether in defining public hygiene, a reasonable railroad rate, or the
"bag limit" -- legal take -- for white-tailed deer. The concept that
legislators applied was that experts with authority to regulate were
best equipped to make needful rules for the operation of some complex
economic and social systems. Railroad, electrical utility, natural
gas, or freight rates were matters of complex economic calculation. To
set those rates, experts gathered to hear the business side of the rate
question and the consumer view of the issues. These commissioners
hired staff experts who analyzed the evidence presented. With all of
the evidence in hand, the commission issued rules for the business in
the public interest. These rules were subject to judicial review, and a
body of law called administrative law evolved.
Administrative
law consists of constitutional, statutory, agency, and common law.
Administrative agencies are creatures of statute, constitutional
provision, or executive orders based on statute. The bulk of
administrative law is judge-made case law on rulings and regulations
by various administrative agencies. Historically, until the early
1930s, courts focused upon constitutional issues inherent in
establishing administrative agencies, such as whether a legislature
had the authority to delegate power to an agency. Since the 1930s,
courts have scrutinized the procedural issues surrounding the
rule-making function and the discretion of agency officials. Agencies
have had to keep records regarding the evidence received in the
rule-making process and how they considered that evidence in arriving
at a decision. Whether an agency was setting telephone rates or
writing environmental rules, the judiciary stood as an arbiter of
whether the rules of procedure had been complied with in the process
of making the rule. Today the Interstate Commerce Commission and the
Environmental Protection Agency make many of the rules necessary for the
conduct of business on a national scale.
When
an administrative agency makes a rule that in effect has the power of
law, it maintains the access of the people to the lawmakers.
Rule-making procedure requires public notice of the beginning of the
process, public hearings on the questions at issue, public opportunity
to comment on proposed rules, and public notice of rules. A governor
or the president of the United States usually appoints the
administrator of the administrative agency, subject to legislative
confirmation. The people have access to this confirmation process, and
in the case of the federal government, the confirmation process is
frequently televised and the subject matter of media attention. Public
interest organizations frequently testify at the public hearings and
publicize their positions via the media. The significance of these
appointments is clear -- as well as the overlap of the executive and
legislative branches.
Democratic decision-making
The
American people have a history of abiding by the law of the land. In
part, this voluntary compliance results from a tradition of offering
citizens opportunities to be involved in the lawmaking process at many
points. Despite the diversity of population and culture in the United
States, the political system of democratic elections, representative
law-making bodies, and public access to the process have given the
American people a stake in the law as well as confidence in the
stability of personal and property rights. How personal and property
rights have been defined and protected over the centuries has varied,
but today, neighbors gathered in an urban condominium complex or living
room, or in a township hall in rural America, continue to make law,
knowing that maintaining a well-regulated society requires personal
attention in democratic decision-making.
Although
the American experience may not be applicable everywhere, the basic
principles of ensuring democratically created law are these: the consent
of the governed; the involvement of the people at all levels of
lawmaking; open access to the process of making law whether through
voting, petitioning, or filing lawsuits, or through judicial review of
statutes, administrative rules and regulations, and executive office
actions; and reliance on fundamental principles of government. These
fundamentals include checks and balances within the institutions of
government, the republican form of government, and democratic
elections. The federal and state governments operating under
constitutions have overlapping powers based in the tradition that
government is of, by and for the people.
For Additional Reading
Gordon Morris Bakken, Law in the Western United States (University of Oklahoma Press, 2000)
Douglas W. Kmiec, and Stephen B. Presser, The History, Philosophy and Structure of the American Constitution (Anderson Publishing Co., 1998)
William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (University of North Carolina Press, 1996)
John Phillip Reid, Constitutional History of the American Revolution (4 vols., University of Wisconsin Press, 1986, 1987, 1991, 1993)
Melvin I. Urofsky, and Paul Finkelman, A March of Liberty: A Constitutional History of the United States (2 vols., Oxford University Press, 2001)
About the Author:
Gordon Morris Bakken is
professor of history at California State University, Fullerton. He
holds B.S., M.S., Ph.D., and J.D. degrees from the University of
Wisconsin and is author of 14 books and 38 articles and reviews.
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