Course Project: First Half Due (week #3)

U.S. Congress

Over time, many changes have occurred within the U.S. Congress as a result of changes in leadership and political parties, amendments to the Constitution, and the influence of special interest groups. Let's learn about some of the important events in the history of the U.S. Congress.

Some additional historic events include the Federalist Papers, Anti-Federalist Papers, limiting the term of office for the President, establishing the Office of Vice President, the War Powers Act, and gifts to Congress by special interest groups.

Congress is a self-regulating body that applies an Ethics Committee to enforce congressional rules. Changes to the US Congress are documented in an Annotated Constitution. You can learn more about these changes through online research.

Next, let's learn about the powers of the U.S. Congress and its organization.

Under Article I of the U.S. Constitution, legislative authority is granted by the Constitution. You will also find information about representation, voting, meetings, and rules of legislation. Congress convenes every two years on January 3—the 1st was in 1789. Let's learn about the powers of the U.S. Congress.

The number of voting representatives in the House is fixed by law at no more than 435, proportionally representing the population of the 50 states.

Third parties rarely have had enough members to elect their own leadership, and independents will generally join one of the larger party organizations to receive committee assignments. The majority party in the House and Senate establishes the rules and controls the legislative agenda.

The U.S. Congress consists of the Senate, which is the upper house of the U.S. Congress, and the House of Representatives, which is the lower house of the U.S. Congress. Let's learn about their organization.

There are many agencies of the U.S. Congress that exist to promote the interests of both its houses. Let’s learn about these agencies.

House of Representatives

The Speaker of the House is the presiding officer in the House and is second after the vice president in the line of succession to the presidency. The Speaker is elected by the majority party by a simple majority of votes on the first day of the new congressional session. Besides having duties as the leader of his or her party in the House, the Speaker also has administrative functions such as procedural duties and presides over nearly all joint sessions of Congress. In addition, the Speaker remains the representative of his or her district from his or her home state.

Majority Leader

The majority leader in the House acts as a liaison with the minority leader, the executive branch, and the Senate. The main focus of the majority leader is on moving the party’s agenda forward as well as negotiating with others to gain consensus on issues. The majority leader is elected by the other House members of his or her party.

Minority Leader

The minority leader is elected by the minority party and has duties similar to those of the majority leader. Depending on the makeup of the House at the time, the minority leader may have less political clout compared with the majority leader.

Majority and Minority Whips

The majority and minority whips of the House are elected by members of their own parties. They are responsible for forming a consensus of their parties, count votes before the actual vote, and persuade others to join their side of the issue. The majority whip is the third-ranking member of his or her party; the minority whip is second in his or her party’s leadership line of command.

U.S. Senate Leadership

Now let’s look at the key leaders of the U.S. Senate.

President Pro Tempore

The role of the president pro tempore in the Senate is to preside over the Senate when the vice president is not present. While the vice president is the president of the Senate by the Constitution, he or she rarely comes to Capitol Hill unless there is a need to break a tie vote in the full Senate. Senior members of the Senate are given the position of the president pro tempore. They are third in succession to the presidency.

Majority Leader

The majority leader of the Senate has responsibilities similar to those of the majority leader of the House. Depending on the bill or resolution, the House or the Senate may have more impact on the life of the legislation being introduced.

Minority Leader

The minority leader of the Senate has responsibilities similar to those of the minority leader of the House. Depending on the bill or resolution, the House or the Senate may have more impact on the life of the legislation being introduced.

Majority and Minority Whips

The majority and minority whips of the Senate are elected by their respective party and have duties similar to those of the whips of the House of Representatives. They are responsible for forming a consensus of their parties, count votes before the actual vote, and persuade others to join their side of the issue.

State and Federal Judiciary

The judicial branch of the U.S. government was established by Article III of the Constitution and is led by the Supreme Court of the United States.Congress has the constitutional power to establish lower courts, and the members of the judicial branch are nominated by the president and confirmed by the Senate.

The judicial branch of the U.S. government is at two levels, federal and state. Let's learn about the federal and the state judiciary.

State Judiciary

In the state judiciary, the court systems are determined by the individual laws and constitutions of each state. Some states have circuit or district courts in addition to court of appeals and state trial courts. In addition, states have smaller courts that handle specific matters such as wills and juvenile and family law. The accused parties have the right to take their case to the highest state court to get their case heard.

Federal Judiciary

Federal courts serve the United States through their interpretation of the law, determining the constitutionality of the law, and how it can be applied to the individual. The U.S. Supreme Court hears far fewer cases than the U.S. district or appeals courts; however, once the Supreme Court has ruled, all lower courts must follow its ruling. Federal judges have no set terms of service and their term ends only when they die, retire, or are impeached. Federal judges can be impeached only by members of the House of Representatives with subsequent conviction and removal by the Senate.

Chapter 1 What Is Law?

We are firmly convinced, and we act on that conviction, that with nations as with individuals, our interests soundly calculated will ever be found inseparable from our moral duties.

Thomas Jefferson

CHAPTER OBJECTIVES

After studying this chapter you should better understand:

· • What is commonly meant by a rule of law

· • The nature of formal law and its limits for governing behavior

· • The interrelationship of norms, moral codes, and formal laws

· • The fundamental characteristics of the U.S. constitutional system

· • The basic sources of formal law in the U.S. legal system

The law is our constant companion. As with most companions our relationship is complex, sometimes supportive and other times maddening. Abortion, the death penalty, prayer in schools, government takings, and affirmative action are only a few examples of current issues that are the subject of much public attention and serious disagreement. Courthouses and law offices are crowded with individuals immersed in the legal process as parties or witnesses in criminal proceedings and civil lawsuits. The system is conspicuous in American culture: it is a recurrent setting for film and television, in popular novels, and in casual conversation. Jokes about lawyers are commonplace, as are expressions of frustration with lawyers’ influence. Yet becoming a lawyer still attracts many of the nation’s most gifted and ambitious individuals. There are more than 750 thousand lawyers in the country,1 and hundreds of law schools produce a steady stream of new graduates. To what extent do the perceptions we have about the law and about the legal process reflect their true nature?

This book examines the nature of the law and of the legal process. It also describes the general nature of the laws, cases, and legal principles that public administrators are most likely to encounter. A grasp of these subjects can be valuable to anyone. But more than passing familiarity with basic law subjects is necessary for public administrators to be able to make wise decisions about issues and problems involving the law. Decision makers should also appreciate the nature of sources of law and what makes laws matter or not matter.

The question considered in this chapter, “What is law?” is not just an academic exercise. Law is much more than the words of legislators or judges that can be found in published statutes and court decisions. Law does involve such rules, but decision makers should not assume that these rules explain what governs the behavior of others. Law involves more amorphous but equally important considerations. Everyone knows that there are formal laws that are routinely ignored and that there are sources of constraints on behavior other than formal law. Public administrators therefore should consider formal laws and what makes them legitimate as well as other factors that govern behavior.

This chapter considers the sources of rules that govern our behavior, including what we mean when we say a society is governed by a “rule of law,” and the nature of natural and formal legal constraints. It also provides an introduction to the formal sources of law in the U.S. legal system, including legislation, court decisions, agency regulations, and international laws. Together these subjects build a framework for exploration in the remainder of this book of the substance of modern law and the operation of the legal process.

Rules and Their Legitimacy

Common notions about law involve rules that govern behavior and relationships. The terms “positive law” and “formal law” are used to refer to a set of rules that a government proclaims and enforces. Humans are not necessarily ruled by formal law; a society can be imagined in which there is none. “Anarchy” refers to a condition in which society is not effectively governed by any government or formal laws. As James Madison, the primary architect of the U.S. Constitution, said, “If men were angels, no government would be necessary.”2 But humans are not angels, and the experience of civilization shows that anarchic conditions are likely to result in violence and destruction. As William Golding put it in his classic novel Lord of the Flies, humans seem to face a choice: “Which is better—to have laws and agree, or to hunt and kill?”3

It is easy to see that it is better to be ruled by laws to which we agree than by primitive force, but throughout history civilizations have struggled with the essential question of how those laws are determined. The philosopher Plato, in The Republic, described the possibility of ideal rules emanating from benevolent “philosopher kings” who would use their power and superior intellect in society’s best interest. But history has not given us much reason to expect such philosophic or benevolent tendencies from those with power. Autocratic rule has tended to entail flagrant abuses. In 1933, Hitler used the “The Law for Removing the Distress of People and Reich” to give himself the unfettered power he needed for fascist rule.4 The Soviets, who also presided over a brutally repressive regime, were expert at adopting formal rules. Their constitution cynically proclaimed that “citizens of the USSR have the right to protection by the courts against encroachments on their honor and reputation, life and health, and personal freedom and property.”5 But encroachment upon life, liberty, and property occurred at the pleasure of those who controlled the state and the party apparatus. These and many other experiences confirm economist Frederic Bastiat’s observation that “the law has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder.”6

Rule of Law

The founders of the U.S. legal system were well aware of the lessons of history about human tendencies toward seizing power and oppressing others. When they declared independence from England they listed the king’s “abuses and usurpations” against them, and they declared a right to oppose such oppression by instituting a new government that would better protect rights they said were “unalienable.” They sought to create a country governed by a “rule of law.” As Chief Justice John Marshall famously said in one of the earliest cases decided by the U.S. Supreme Court, “The government of the United States has been emphatically termed a government of laws, and not of men.”7 Since then government leaders and scholars have continued to refer to an ideal as a rule of law, usually as a contrast to the extremes of anarchy and authoritarianism. What does it really mean to be governed by a rule of law?

Powerful concepts embedded within the notion of a government of laws include a conviction that the law should be adopted in an open and democratic process. In a republic, elected representatives enact the formal laws through a legislative process. The legitimacy of these formal laws stems from the notion of the consent of the governed. As explained by philosopher John Locke, whose ideas were expressed in the Declaration of Independence, although we are born into a state of natural law and no one has inherent power over others, “every man that hath any possession or enjoyment of any part of the dominions of any government doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of government during such enjoyment as anyone under it.”8 According to this view of government’s legitimacy, the people empower their representatives to make and enforce rules for the common good, which are applied to everyone.9

The U.S. Agency for International Development invokes broader concepts when it says:

· The term ‘rule of law’ embodies the basic principles of equal treatment of all people before the law, fairness, and both constitutional and actual guarantees of basic human rights. A predictable legal system with fair, transparent, and effective judicial institutions is essential to the protection of citizens against the arbitrary use of state authority and lawless acts of both organizations and individuals. 10

This well-reasoned definition of a rule of law refers to other conditions that must exist together with rules. Legitimacy comes not only from the process by which the rules are adopted and enforced, but also the extent to which the rules reflect society’s customs and notions of proper human conduct.

Natural Law

The existence of formal laws alone does not equate to a rule of law. We know from history that lofty constitutional principles and comprehensive legislative schemes cannot by themselves guarantee rights and freedom. Formal law does not constrain harmful tendencies or protect individual liberties unless it coexists with mutual respect for individual rights within society. Thomas Jefferson warned about confusing observance of formal law with liberty. He said that “rightful liberty is unobstructed action according to our will within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of an individual.”11 Jefferson thereby reminded us that law can be something worse than an empty or cynical exercise, and time has proved him right.

We also know that even when formal laws are the product of a representative enactment process they do not always govern public behavior. Some laws are entirely unknown to the public or even though known they are routinely ignored. For example, there are state laws that still proscribe sexual conduct in which adults routinely privately engage. We also hear of inane laws, such as those prohibiting sleeping while wearing shoes or playing dominoes on a Sunday. Laws are not seen as legitimate unless they reflect community notions of right and wrong. Law philosopher Ronald Dworkin put it this way: the legal rule “represents the community’s effort to capture moral rights.”12 When a formal law fails to capture those rights, or loses touch with them, the law is likely not to be followed or enforced.

Formal rules also fail to result in a rule of law when they become too distant or unwieldy. The power of formal law and legal process cannot possibly reach all aspects of interactions among members of a society. Economist Frederick Hayek noted this natural limitation when he said that a rule of law “means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used.”13 Even the American Bar Association’s Model Rules of Professional Conduct acknowledge the limitations of rule formalization. The description of the rules’ scope includes the following comment:

· Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. 14

To understand what does constrain human activity we must consider the extra-legal bonds that exist as a matter of common understanding and custom.

Laws are an accurate measure of behavior when they reflect basic notions of right and wrong. The concept of natural law is a foundation of the American legal system. Natural law has been defined as “a system of rules and principles for the guidance of human conduct which, independently of enacted law or of the systems particular to any one people, might be discovered by the rational intelligence of man, and would be found to grow out of and conform to his nature, meaning by that word his whole mental, moral, and physical constitution.”15 Many eminent philosophers, including Aristotle, Thomas Aquinas, Thomas Hobbes, John Locke, and Thomas Jefferson have described the importance of natural law to human society. Jefferson wrote of this concept in the Declaration of Independence when he referred to the unalienable rights of life, liberty, and the pursuit of happiness.

Obviously notions of custom and morality guide those who enact and interpret the law. Legislatures sometimes expressly incorporate such concepts into their enacted laws. For example, unfair trade practice laws prohibit deception and authorize multiple damage awards and attorneys’ fees compensation to those harmed by such behavior. Businesses have been struck with substantial verdicts based on violations of these standards of decency even in the harsh commercial realm. The law governing common sales also adopts boundaries of good faith. The Uniform Commercial Code declares that “[e]very contract or duty [governed by the Code] imposes an obligation of good faith in its performance or enforcement,” which means “honesty in fact in the conduct or transaction concerned.”16 The Code also authorizes courts not to enforce a contract that is “unconscionable,”17 which courts have used to invalidate contractual agreements based on perceived unreasonableness.18

Judges also sometime explicitly refer to natural law in their analysis. For example, North Carolina’s constitution does not state that the government must pay compensation for property taken from citizens through exercise of the power of eminent domain, but the state’s supreme court said that a right to compensation is “so grounded in natural law and justice that it is part of the fundamental law of this State.”19 Courts also regularly defer to a sense of community standards in defining other important constraints. For example, the U.S. Supreme Court invoked such standards for determining whether laws against obscenity violate constitutional guaranties of free expression. In the 1964 case Jacobellis v. Ohio,20 involving an obscenity prosecution for a movie depicting an adulterous love scene, Justice Potter Stewart famously said, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”21 He believed that communities share unarticulated notions of unacceptable depictions of sexual material and that such notions could be the basis for deciding cases.

Even in the criminal context, our legal system acknowledges that the formal laws must sometimes defer to behavioral norms. This can be seen with “jury nullification,” by which a jury decides a case based on the jury’s sense of what is right without regard to the court’s instructions. As one court put it, “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge.”22 Judge Learned Hand described the jury as “introduc[ing] a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.”23

Community norms also underlie everyday exchanges. The innumerable social and business interactions in which individuals engage depend on trusting relationships and predominant norms of behavior by which individuals keep their word and act in good faith. Participants in a market economy rely on each other’s willingness to do business, which can be diminished by a reputation for bad behavior. Reasonable business people prefer to expend their energies in a mutually cooperative way rather than focus on disagreements.24 The limited reach of formal law means we must rely to a great extent on other constraints to govern our actions in our relationships. As Nobel Prize-winning economist Amartya Sen has explained, “Successful operation of an exchange economy depends on mutual trust and the use of norms—explicit and implicit. When these behavioral modes are plentiful, it is easy to overlook their role.”25 We depend on behavioral norms to facilitate our commercial and private interactions and constrain harmful tendencies, and these norms deserve attention as much when they are present as when they are absent.

Despite the inseparability of law and moral standards in core legal building blocks, much modern legal theory has strived to isolate morality from formal law analysis. Oliver Wendell Holmes, Jr., was the pathfinder in this movement. In his 1897 article “The Path of the Law,” he launched a quest for “legal realism” based on what has been called “moral skepticism.”26 Although acknowledging that a community would resist laws that violated basic moral senses, Holmes said that confusing legal and moral ideas will render the law useless in its essential role of providing predictable rules. He argued that the law should be seen scientifically as “the prediction of the incidence of the public force through the instrumentality of the courts.”27 Whatever the merits of social realism in the development and application of coherent formal rules, it necessarily falls short of providing a complete picture of how a society is governed. The result, as legal scholar Lon L. Fuller said, is that “the legal mind generally exhausts itself in thinking about law and is content to leave unexamined the thing to which law is being related and from which it is being distinguished.”28 Analytically separating morality from formal law causes us to fail to appreciate the extent to which morality legitimates law and governs our extralegal behavior.

Sources of Norms

What is the nature of the norms and moral codes that legitimize laws and guide behavior? They have spiritual, philosophical, and social origins, and many bright minds and devout souls have searched for clarity about what is right. Aristotle’s philosophy is a solid enough foundation for understanding the basic nature of behavioral norms, for several reasons. It is consistent with our predominant moral concepts. It profoundly influences the development of democratic government. It also puts virtue in the context of relationships, which is the sense in which morality results in constraints on behavior.

Aristotle saw moral virtues as habits that moderate between extremes. He said virtues are not instinctive—they must be learned and practiced within a culture.29 Philosopher Leszek Kołakowski explained this notion of virtue as the “moral skills essential for life in a human community, [that] in one important respect resemble other, non-moral skills. … We learn virtues by being brought up in a community where they are practised, in the same way as we learn to swim, or to use a knife and fork.”30 Those who achieve these virtues aim their actions, in Aristotle’s terms, “to the right person, to the right extent, at the right time, with the right motive, and in the right way.”31 Of the virtues identified by Aristotle, two in particular are at the heart of shared concepts of social norms of interactive behavior: truthfulness and justice. The person who loves truth, Aristotle said, will be “truthful where nothing is at stake, will still more be truthful where something is at stake; he will avoid falsehood as something base, seeing that he avoided it even for its own sake.”32 Justice is a closely related concept, which requires, among other things, keeping faith in one’s agreements.33

Fundamentally, these virtues put our behavioral choices in the context of our relationships with others. Even those who have never considered philosophical definitions tend to share this conviction, as expressed in the “Golden Rule,” by which we know it is right to treat others as we would want to be treated ourselves, a profound imperative on which the world’s cultures generally have agreed. As philosopher Immanuel Kant said, “There is … only a single categorical imperative and it is this: Act only on that maxim through which you can at the same time will that it should become a universal law.”34 Religious tenets worldwide express the same notion. For example:

· Buddhist Udana-Varga: “Hurt not others in ways that you yourself would find hurtful.”

Christian New Testament: “Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.”

Confucian Avalects: “What you do not want done to yourself, do not do to others.”

Hindu Mahabharata: “This is the sum of duty: do naught to others which if done to thee would cause thee pain.”

Islamic Sunnah: “None of you truly believes until he wishes for his brother what he wishes for himself.”

Jewish Talmud: “What is hateful to you, do not do to your fellowman. This is the entire Law; all the rest is commentary.”

Of course behavior does not always reflect philosophical or religious principles, and many aspects of community standards of expected and acceptable behavior vary among societies and over time. What one society abhors may be condoned by another; what was once forbidden may become commonplace. Nevertheless, the commonality of the Golden Rule in philosophical and sacred commandments reflects that at least as a matter of principle humans tend to ascribe to the same fundamental notions of right and wrong. These fundamental notions are at risk if we lose touch with their importance. To avoid disintegration of the essential governing norms we must abide by Shakespeare’s advice, “This above all—to thine ownself be true; And it must follow, as the night the day, thou canst not then be false to any man.”35 Or as Kołakowski put it, “[W]e should always be on guard against self-deception and self-satisfaction, and scrupulous in examining the true motives of our actions.”36 Those who formulate the law and administer the legal process need to heed this advice and must strive to align their motives and actions with society’s moral principles.

Public administrators may not be the kind of philosophers that Plato imagined could benevolently govern for the public good. Public administrators are humans with practical responsibilities, and they cannot reasonably be expected to act in all ways as if they are enlightened philosophers. But one need not be a philosopher to guide behavior according to thoughtful principles. As the Stoic philosopher Epictetus said, “Never call yourself a philosopher and do not talk a great deal among non-philosophers about philosophical propositions, but do what follows from them.”37

Evolution of Formal Law

As notions of fairness and justice have continued to evolve throughout history, civilizations have developed formal legal systems to reflect those notions and to organize a functioning society with increasingly complicated interrelationships. Although the founders of the United States declared independence from English rule, many fundamental aspects of the government, civil and criminal laws, and judicial procedures that governed the colonies were continued in the federal and state systems. Formal law is a product of thousands of years of evolution in legal traditions. These shared concepts about law and legal process continue to bind Western political and legal systems.

Scholars trace the Western legal tradition at least as far back as the Babylonians. In 1901 a stone monument was found in the Persian mountains on which were engraved hundreds of laws. These laws have become known as “Hammurabi’s Code” named after the Babylonian ruler believed to have proclaimed a code during his reign in 1795–1750 B.C. Jewish law incorporated many aspects of Babylonian law, as expressed in the Ten Commandments, the Torah, and the Talmud.38 These laws were believed to have emanated from God, and they were interrelated with religious practices. Many of the proscriptions, such as the commandments against murdering and stealing, are embedded in modern law.

The Greeks are known for laws not necessarily issued by a deity and for the emergence of laws, especially criminal laws, that focused on individual rather than family or collective responsibility.39 The writings of Ancient Greek philosophers such as Aristotle, about individual liberties, property ownership, and criminal procedure, were influential in the development of modern Western legal systems and remain sources of enlightenment for legal scholars.

Similarly, the period of Roman dominance made important contributions to development of modern legal systems in the Mediterranean region and beyond. The Romans were governed by published imperial edicts and judicial opinions. In the sixth century Roman Emperor Justinian published the first comprehensive set of formal legal rules in the Corpus Juris Civilis, or Justinian Code, from which Western legal systems draw inspiration.40 Justinian collected all of the imperial edicts into one source and collected judicial opinions into a digest. The word “Code,” which is now used to describe the collection of statutes currently in force, is derived from the word “codex” that the Romans used to describe their compilation.41 The Romans are also known for the emergence of a professional class of lawyers who valued legal reasoning and argument,42 although religious leaders continued to play a major role in the development of formal law.

While Mesopotamian, Greek, and Roman innovations built a framework for a comprehensive system of formal laws, many core aspects of the U.S. legal system are derived from innovations in English law. One of the most important developments is the idea of a constitution as the ultimate source of formal law. Western constitutional law customarily is traced to the Magna Carta of 1215, a charter to which English church leaders and nobles compelled King John to agree. The Magna Carta challenged the notion that monarchs are divinely chosen rulers subject to no earthly authority. King John agreed that certain rights were inviolable, such as the right that no “freeman” may be deprived of property or liberty except by process of the law. The king acknowledged that even he was bound by law,43 principles later expressed in the U.S. Declaration of Independence and in the Bill of Rights.

England is also important for development of a system of common law. The English Parliament, and other legislatures, enact statutes as rules to address many matters involving government and individual relationships. The common law emerged to address matters not covered by such enactments. It is the body of judicial decisions resolving disputes according to judges’ sense of custom and justice. Once a common law principle is established, by tradition the courts later abide by it as a matter of stare decisis, by which prior decisions on the same issue within the same jurisdiction are considered to be binding precedent in the same or substantially same circumstances in later cases. Over time the common law is adapted to new circumstances, and new common law principles evolve to deal with previously unaddressed situations. This English common law tradition survived the American Revolution in the United States. The newly established federal and state courts relied on English judicial opinions and law scholars as authorities in deciding cases. Most areas of the law remain heavily influenced by these English common law principles. For example, courts rely on common law to resolve property ownership disputes or claims for damages as a result of personal injuries and to define some crimes such as fraud.

This brief introduction to the evolution of formal law in Western Civilization is intended to give some perspective about the philosophical and cultural traditions that underlie modern law. Legislatures and courts do not often speak of such traditions when they pass laws or decide cases. But history unquestionably influences their initiatives and decisions. An understanding of this framework can lead to greater understanding of the nature of law and legal process.

Sources of Formal Law

Formal law is a complex puzzle with pieces that do not fit neatly together and with no discernable perimeter. Answers to legal questions can be found in any of a myriad of constitutions, statutes, ordinances, regulations, judicial opinions, and other sources. Moreover, the nature of formal law cannot be understood without also understanding the manner in which law makers are allocated power within the legal system. The following sections discuss each of the major sources of law, beginning with a discussion of the constitutional system and the main features of the manner in which legal authority is allocated, then continuing with a discussion of the principal sources of formal law.

Constitutional System

Formal laws begin with a constitution—a compact authorizing a government to exercise entrusted powers and forbidding government from infringing on certain rights. With the U.S. Constitution the states established a federalist government, granting certain powers to a central government but continuing their own self-government over other matters. The states’ constitutions in turn address their forms of government and limitations on their powers, which are in large degree modeled on the federal structure.

Recognizing the truth of Baron Acton’s famous statement, “Power tends to corrupt, and absolute power corrupts absolutely,” the framers of the U.S. legal system intentionally installed counterweights to the concentration of power. The states ratifying the U.S. Constitution agreed to surrender some of their power to the federal government to facilitate interstate commerce and self-defense and to promote prosperity and growth. But the states retained power over other matters. The founders also created separate branches of government—legislative, executive, and judicial—at both the federal and state levels, which were intended to have the tendency to check each other’s natural inclination to assume ever greater authority. James Madison, who said no government would have been necessary if humans were angels, also observed that “If angels were to govern men, neither external nor internal controls on government would be necessary.”44 The framers understood that humans were not angels and built controls into the legal system.

Federalist System

When the states joined the federal union their citizens became subject to federal laws enacted pursuant to the powers that the U.S. Constitution gave to the federal government. Article VI of Constitution provides, “This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitutions or laws of any State to the contrary notwithstanding.” With this Supremacy Clause the states conceded state law to matters assigned to the federal government in the Constitution. The states’ authority to enact laws in conflict with federal law is said to be “preempted.” A federal law preempts any state law or regulation if the federal law expressly does so or if preemption is implicit in the structure and purpose of the federal law. A state may be preempted from legislating in an entire field of law if the federal law is so expansive as to indicate that it was intended to occupy the field.45

Separation of Powers

The federal and each state constitution established three branches of government: the legislative branch to make law, the executive branch to enforce the law, and the judicial branch to resolve disputes. As discussed in other chapters in this book, the U.S. Constitution was not always entirely clear about which branch had a particular power or about how to resolve conflicts when more than one branch assumed the same power. A very important question not expressly addressed in the Constitution was how to resolve questions about whether a branch exceeded its constitutional authority. As discussed in Chapter 2, in the 1803 case of Marbury v. Madison the U.S. Supreme Court said that it was its role to declare what the law was and to determine whether a legislative or executive act was unconstitutional. Although at the time not all leading political figures thought the Court had such an implied role—some thought each branch determined the extent of its power and that the states ultimately could nullify actions not constitutionally authorized—the view expressed in Marbury v. Madison was accepted as establishing the Court’s ultimate arbitral authority.

The framers intended for there to be tension among the branches of government in the exercise of power. A separation of powers intentionally put the branches at odds to prevent any one branch from becoming tyrannical. In addition to dividing power among each of the branches the Constitution gave each branch some involvement in the others’ activities. One example of this interrelatedness is the process for enacting law. The Constitution gave the power to make law only to Congress, but the president was enabled to block legislation with a veto. The framers left the final say with Congress, however, which may override a veto with a two-thirds vote of both chambers. As another example of the checks built into the system, the Constitution gave the president the power to appoint federal judges, but those appointments are subject to the Senate’s approval. Also, Congress was given control over the judiciary’s budget, may impeach federal judges, may initiate amendments to the Constitution if it disagrees with the judiciary’s interpretation, and may change laws or enact new laws in response to court decisions. Conflicts among the branches are inevitable, but the framers saw tension as essential for preventing the power consolidation that history showed would otherwise occur.

Many important legal issues involve the tensions among branches of government. Some U.S. Supreme Court justices have seen their roles as protectors, ready to declare legislative acts invalid if they infringe on the justices’ understanding of what rights should be. Other justices have tended to defer to elected legislators as those who are constitutionally empowered to express the will of the people. Some justices seem to express both views over time, depending on the nature of the issue. Differing views about the proper role of the branches of government is a recurring theme in the discussion of substantive law in later chapters in this book.

Legislation

The federal and state legislatures enact statutes governing matters over which they have constitutional authority. Article I of the U.S. Constitution establishes Congress to enact federal laws. Provisions in state constitutions similarly establish state legislatures.

Legislative Enactment Process

Statutes become law through a legislative process. In the U.S. Congress members initiate legislation by introducing a bill. The president may propose legislation with an executive