The Common Law System, the United States Constitution, and Federalism

Basic Legal Law Systems

The modern world is built on two basic legal systems

• Common Law – the legal system built on the precedent of cases

  • History of court dispute resolution evolves into legal theories of a resolution whose elements must be met (with proof of fact) before a party may prevail
  • Largely followed by countries of the former British Empire
  • ==The United States follows the common law tradition==

• Civil Law – abstract codified law on the Roman tradition

  • Statutes are applied to disputes in court in court, but rules of resolution (the logic used to resolve the dispute) carry no weight of the law on future disputes with similar questions at issue
  • Largely followed by countries of continental Europe and their former possessions (e.g. South America)

• Many nations (not the U.S.) have a hybrid of the two systems

Substantive Law vs. Procedural Law

• Substantive Law is “that part of the law which creates, defines, and regulates rights, as opposed to [procedural law] which prescribes method of enforcing the rights or obtaining redress for their invasion” (Black’s Law Dictionary, 5th Ed.)
  • Example: Whether you have a right in property
• Procedural Law is “that which prescribes method of enforcing rights or obtaining redress for their invasion.”  By way of metaphor, procedural law is the machine we have designed to apply substantive law to resolve our disputes. 
  • Example:  Whether the government allowed due process in taking your right in property
• ==U.S. Constitution is largely procedural==

Drafting and Ratification of The United States Constitution

==Articles of Confederation were replaced by the draft of the Constitution in 1787.==

• Hamilton, Jay, and Madison published the Federalist Papers, 85 essays extolling the virtues of the new Constitution
• Ratified by nine states (required), thereafter by New York, Virginia, and Rhode Island (the last)
• Bill of Rights (Amendments 1– 10) drafted by the first Congress and presented to states for ratification
• US Supreme Court convenes February 1790

US Constitution Structure Review

Article I – The Legislature

• Taxes must originate in the House of Representatives (U.S. Const. art. I, § 9, cl. 1.)

• Commerce Clause (U.S. Const. art. I, § 8, cl. 3.)

• Article II – The Executive

  • “take care that the laws shall be faithfully executed” (U.S. Const. art. III, § 3)

• Article III – The Judiciary

  • Subject matter review

• Article IV – The States

  • Powers and limitations

• Article V – Amendments

• Article VI – Supremacy Clause 

  • “This Constitution…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (U.S. Const. art. VI, cl. 2)

• Amendments:  1 through 27

Concept of Sovereignty

• Sovereignty is “the right and power of regulating … internal affairs without foreign dictation” – Black’s Law Dictionary
• States must relinquish some power to be bound together in union
  • All powers not identified in US Constitution are reserved to the states
  • Tenth Amendment:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
  • ==Federal power is therefore limited power==

Concept of Federalism: Dual Sovereigns

• Federalism: the relationship between the federal government and the states. 
  • Sold to the citizens by the Federalist Papers (Hamilton, Jay, Madison)
• The Supremacy Clause (Article VI): Federal law, where applicable, is superior to state law. 
  • Sometimes federal regulation occupies the entire field and there is no room for state regulation. 
  • federal law preempts state law, which means that the state law is of no effect
  • Federal environmental law often delegates implementation to states
  • Example: Clean Air Act implemented by the states
• Concurrent jurisdiction: when the federal law or regulation does not occupy the entire field and there is room for state regulation. 
  • Through much of environmental law we will find that the states and the federal government may exercise concurrent authority.

State Sovereignty Relinquished (Art. I)

“No State shall enter into any Treaty, … coin money… make anything but gold and silver coin a tender in payment of debts; pass any … ex post facto law” (U.S. Const. art. 1, § 10, cl. 1)

• Ex Post Facto: A law that makes illegal an act that was legal when committed (see also U.S. Const. art. 1, § 9, cl. 3 limiting Congress from same)

• Contracts Clause:  “…or Law impairing the obligation of contracts (U.S. Const. art. 1, § 10, cl. 1)

• “No state shall, without the consent of the congress, lay duties on imports or exports….” (U.S. Const. art. 1, § 10, cl. 2)

• “No state shall… enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded…” (U.S. Const. art. 1, § 10, cl. 1)

State Sovereignty Relinquished (Art. IV)

Full faith and credit clause: the concept that states must recognize legislative acts, public records, and judicial decisions of the other states (U.S. Const. art. IV, § 1)

• Example: Will executed under laws of North Carolina is valid to dispose of property in Virginia

• Privileges and immunities clause: the concept that one state may not discriminate against residents of another state

  • Inferred right of interstate travel
  • Requirement of extradition (U.S. Const. art IV, § 2, cl. 2)
  • The requirement that those in servitude or property be returned
  • slavery was a function of state law, not federal

• No subdivision of states, nor joining of states without Congressional approval (U.S. Const. art IV, § 3, cl. 1)

  • West Virginia exception

State Sovereignty Relinquished (14th Am.)

Takings Clause (5th Amendment):  “… nor shall private property be taken for public use without just compensation.” (U.S. Const. am. 5.)

• Due Process Clause
  • 5th Amendment: "nor be deprived of life, liberty, or property, without due process of law” (U.S. Const. am. 5.)
  • 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const. am. 14.)
• Equal Protection Clause (14th Amendment):  “nor deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const. am. 14.)

Other Pre-emption over State Sovereignty \n Bankruptcy 

• “To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States” (U.S. Const. art. 1, § 8 cl. 4)

• Admiralty 

  • “The judicial Power shall extend to …all Cases of admiralty and maritime Jurisdiction” (U.S. Const. art. 3, § 2 cl. 1)

• Patents and Trademarks

  • “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (U.S. Const. art. 3, § 8 cl. 8)