Friedman (I)

Revolutionary ardor

In 1776, the colonies declared themselves independent. The bitter war that followed ended in an American
victory.

Peace raised many questions of government, about distribution of the power and wealth of a society.

How to plan the new American government was the major policy issue of the late 18 th.

After the failure of the Articles of Confederation, a federal Constitution was drawn up and ratified in 1787:

- It is still in force.
- It has been amended but the basic text is essentially the same.

Each colony underwent its own revolution. Colonial officials were replaced by men loyal to the
RevolutionColonies became states, and, after the war, debates over law continued:

The colonists had overthrown the King of England and his government. Should the king’s law also be
overthrown?

Yes:
- The common law and the reputation of the lawyers was badly tarnished
- New democratic states needed new institutions, including fresh, democratic law
- Monarchical and aristocratal institutions not consistent with republican principles
- Antiquated “tyranical” precedents
- People felt that the courts were biased by an oppressive, old fashioned system of law
- In the early 19th the Napoleonic Code was a model of clarity and order
- After the french revolution French civil law had a certain attraction for American liberals
- Common law seemed feudal, barbaric, uncouth vs the neatness of some features of civil law
No:
- Few lawyers had any grasp of French or any other language or system.
- They continued to apply the common law, the one that they knew.
- It was romanticized, as the birthright of free men
- It was a precious heritage perverted by the British under George III
- The foundation of freedoms, embodied fundamental norms of natural law
- Common law lawyers were among the heroes of the Republic (John Adams, Thomas Jefferson)
- Lawyers mostly drafted the state and federal constitutions
- Courts were increasingly manned by old lawyers, who continued to function, trainning new lawyers
in common law
- The common law was a weapon of integration: the Northwest Ordinance imposed common law on
the lands of the American frontier. In the prairies and forests, where French settlers lived and
worked in the path of the American onrush, the common law was an agent of American
imperialism.

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The first Continental Congress (1776) adopted a Declaration of Rights:

- it declared that the colonies were entitled to the common law of England, in particular the right of
trial by jury.
- Americans were also entitled to the benefit of those English statutes that existed at the time of
colonization, and which they have, by experience, respectively found to be applicable

The day after the independence

Now that the states had freedom to choose, what parts of English law would remain in force?
Many states passed statutes to define the limits of the law in force:

- A Virginia law of 1776 declared that the common law, all statutes or acts of Parliament (maid in aid
of the common law prior to the 4 th year of the reign of King James I, and which are of a general
nature, not local to that kingdom) shall be considered as in full force.

- The Delaware Constitution of 1776 provided that the common law of England and the statute law
adopted in practice in that state shall remain in force, except for those parts which were repugnant
to the rights and privileges expressed in the constitution and in the declaration of rights

A New York court held that some English statutes had become part of the common law of the colony. If so,
an indefiable, unknowable cluster of old laws had a more or less ghostly presence in the state.

They survived only insofar as they were not repugnant to the Constitution, or not suitable to NY conditions.

There were some states where nobody could tell precisely which English laws were dead and which were
alive.

For a long time, cases occassionally turned on wheter some statute or doctrine had been received as
common law in this or that state.

In a broader sense, the question of reception is endemic to the common law. Judges must always consider
how much old law still has value, and how much deserves to disapear

Reception statutes dealt with older English law. Did new English law count for much?

- Jesse Root of Connecticut (1798): “courts of a free country should not allow themselves to be
governed by foreign law”. Ideal of the republic of bees: members resist all foreign influence with
their lives and their honey though extracted from innumerable flowers was indisputably their own

- New Jersey law 1799: no decision given in any court of Great Britain after July 4, 1776 nor any
exposition of the common law shall be received or read in any court of law in that state as law or
evidence of the law -> It was repealed in 1819,

- Kentucky prohibited the mere mention of recent British law in its 1807 statute

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But, as a practical matter, courts and lawyers continued to refer to English law throughout the period and
the country.

- It was impossible to throw over the habits of a lifetime.

American law continued to borrow in a selective manner. The country invited in only those English doctrines
that were needed and wanted.

Americanization of common law

Between 1776 and the mid 19th there were sweeping changes in American law

It developed a true republic of bees: the flowers were the social and economic institutions that developed
in their own way in the country, making American law a distinctive system, a separate language of law
within the family founded in England.

Antilaw movement: the age-old dream of framing rules of simple, natural justice that anybody could
understand flared up with special vigor

Some thought that law was remote from the needs of ordinary people and biased toward the rich, others
condemned it as archaic, inflexible and irrelevant

It was utopian to imagine that society could overthrow law and replace it with natural justice. Society was
too complicated. In fact, as time went on, more rules with more definite shape were adopted.

American law in the 19th

One basic, critical fact of 19th century law was that the official legal system penetrated deeper into society.

Medieval common law was not the law everywhere in England, nor was everybody’s law. It was the law of
the gentry, local customs where the living law for ordinary folks.

In 16th or 18th in England, few people owned or dealt in land. Only a small percentage were inside the market
economy. Only a few were potential customers for family law, commercial law, and law or the law of
corporations. There was surely less oligarchy in the United States than in the old kingdoms of Europe. In
colonial America, there was a great deal of hierarchy and deference, but there was also widespread
ownership of land. And by the time of the revolution, even hierarchy and deference had diminished. More
men voted and counted in society.That a far greater percentage of families owned land, compared to
England, was a crucial fact.

American law had an enormous range, it affected the work and wealth of millions. Thus, a law of the
millions, and for the middle class, had to develop. Paradoxically, American law, divided into as many
subsystems as there were states, was less disjointed than the common law of England.

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This American law, to survive:
- had to be more pliant and accessible than a law for the wealthy few
- It had to suit the needs of its customers
- It had to be easy to use, or at least easy for ordinary lawyers

What it happened to American law in the 19 th basically, was that it changed fundamentally to conform the
needs, wants and preassures coming from the vast increase in the numbers of consumers of law:

- The primary function of law became not suppression and uniformity, as in the colonial time (law
emphasized community, order, and the struggle against sin), but economic growth and service to its
users
- People who mattered came to see law as a utilitarian tool: a way to protect property and the
established order, a way to further the interests of the middle-class mass, to foster growth
- Dynamic rather than static property, property in motion or at risk rather than property secure and
at rest

The source of the change lay not so much in the Revolution as itself, but the transformation of economy
and society that occurred in the machine age and the age of rational thought.

The theory of law that emerged from american society was an instrumental theory, a relativistic theory. It
was the idea that law was something people used to further their ends, and when ends changed, so did
means.

Such a theory implied a more creative view of precedent. The Constitution talked about natural rights, but
this rights served as a framework for the fullfilment of people’s needs and desires. It meant asking, whether
a rule or a doctrine made sense, and whether it met the needs os the here and the now.

At one time, law was conceived essentially in static terms. Any change was considered exceptional, and
treated almost apologetically. But in the 19 th legislatures made law wholesale, whitout any sense of shame.
Judges made law, too, in the course of deciding cases. Society was changing rapidly, and legislatures and
courts both worked creatively, building and rebuilding the house of the common law.

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Constitutions: Federal and State

As the years went by, the states became disillusioned with legislative supremacy.

Governor gained a longer term of office and the power to veto bills

Judicial Reviews: Marbury v. Madison (1803): for the 1st time, John Marshall and the US Supreme Court
dared to declare an act of Congress unconstitutional.

Judicial review of the court wasn’t used against Congress for over 50 years.

It was used more frequently against state statutes. State supreme courts too, began to exercise judicial
review.

Rules to control legislation were written into one constitution after another.

- Georgia Constitution (1798) outlawed the practice of legislative divorce

- Indiana (1816) forbade the establishment by statute of any bank or institution for the purpose of
issuing bills of credit, or bills payable to order or bearer

- The Louisiana Constitution (1845): turning point

- sharply restricted the state’s power to pledge its credit or to lend its money
- the state was not to become subscriber to the stock of any corporation
- forbidden: lotteries, legislative divorces, special corporate charters
- every law was to embrace but one subject and that shall be expressed in the title
- no new exclusive privileges or monopolies were to be granted for more than 20 years
- no banks of any sort were to be chartered

Why did legislatures lose some of their power?

Blocs of voters became afraid that landlords, corporations and other wealthy and powerful forces were too
strong in state lobbies

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Constitutional stare decisis: popular clauses or provisions tended to spread far and wide. New states
borrowed clusters of clauses and sections from old states.

- The New York Constitution of 1846 left a deep mark on Michigan, and later on Wisconsin.
- The first California Constitution was heavily indebted to Iowa
- Oregon was indebted to Indiana

The states shared a common political culture, for the most part, people in two states thought alike on
political and legal issues. Borrowing was always selective.

The Judges

How the judges were to be chosen and how they were supposed to behave was a political issue in the
Revolutionary generation.

Judges varied in qualification. English and colonial tradition had allowed for lay judges, as well as for judges
learned in law. There were lay judges both at the top and the bottom of the pyramid.

In the colonies, the governor frequently served, ex officio, as chancellor. New Jersey continued this system,
in its constitution of 1776, that also made the governor and council “the court of appeals in the last resort in
all causes of law as heretofore”. Since governor and council were or might be laymen, this meant that
nonlawyers had final control over the conduct of trials and the administration of justice.

- Give the electorate at least an indirect voice in judicial selection: Ohio Constitution of 1802 “Judges
of the Supreme Court, the presidents and the associate judges of the courts of common pleas” were
to be appointed by a joint ballot of both houses of the general assembly, and shall hold their offices
for the term of seven years”.

- Other states (Georgia 1812 and Indiana 1816) provided for popular election of some judges.

- Missisipi in 1832 adopted popular election for all. NY followed.

The elective principle: Judges invent or modify many of the working legal rules, they clearly exercise power,
they are part of the system of checks and balances, but who was going to check and balance them? The
voters

There was good evidence that judges could be biased, partisan and factional. Thomas Jefferson and his party
were convinced of this. Federal judges were appointed for life.

Ways to get rid of them:

- Impeachment: Literally interpreted, then, constitutional law allowed impeachment only in rare and
extreme situations.

But there were a few notable cases, in the early 19 th where impeachment was used to drive enemies
of party and state out of office.

It was, and is, rare and used only for flagrant cases.

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 - Abolish their offices: The Jefferson administration repealed the Judiciary Act of 1801, putting the
midnight judges out of bussiness.
-

Ultimately impeachment failed and the states turned to the elective principle. It was not right to replace
a sitting judge for political reasons. Judges won independence through a social compromise: judges
would take refuge in professional decorum. They would still make policy, but divorced from overt,
partisan politics. They would use principles and policies that were always dressed in the somber clothes
of the formal law. Justice would be blind; and it would wear a poker face. This ideal had enough force to
bring some peace and consensus to issues of tenure, selection, behavior, and removal of judges.
Perhaps it even affected the way judges actually played their roles.

Perhaps the greatest of the judges was John Marshall, Chief Justice of the United States. He gave federal
judgeship its meaning.

In Marbury v. Madison (1803) he invented or affirmed the power of the court to review even acts of
Congress. His doctrines made constitutional law. He personally transformed the function and meaning
of the Supreme Court. When he came on the bench, in 1801, the Supreme Court was a frail and
fledgling institution. In the first years, the Court heard only a handful of cases. It did not make much of a
stir in the country. By the time Marshall died, the Court was fateful and grate.

The Court handed down 41 decisions during the 1809 term. Marshall wrote 30 of these. He was on the
court for 34 years, he wrote 574 opinions.

There were strong leaders and builders in the state courts, too. They worked on a more modest scale
and in smaller ponds. Their work has less national significance. But they made a definite impact in their
home states and the common law world.

The colonial judges, who left no monuments behind, are forgotten men. From 1800 on, strong-minded
American judges, whose work was recorded, influenced their courts and the law. Precedent was
important, but not crucial. They chiseled law out of the hard rock of basic principle. Past cases were only
evidence of principle, and rebuttable at that.

- They firmly believed in law resting on the base concepts and ideas of a good society.
- Some were conservative men, passionate about tradition; they honored tradition, not for its own
sake, but for the values that inhered in it.
- They were political animals, and they believed in politics in its noble sense, separated from politics
in the sense of dirty, partisan wrangling.
- They lived in the present, shaping and reworking the living law
- Many of them were scholary men, a few very erudite
- Nobody cited his predecessors. Their opinions, unpublished, were gone with the wind.
- Some judges started collecting, revising, or digesting the statutes of their states and writing or
rewriting treatises.
- Very often, judges were men who had political careers before they became judges

Judgeship, then, was not a lifetime career for all judges. It was not a distinctive career, with its own
distinctive pattern of training and backround, as in many Continental countries. Judgeship was a matter of
luck and opportunity, not special skill, backround, or aspiration.

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Kermit Hall studied the men appointed to the federal bench between 1829 and 1861. An astonishing 78
percent of the judges had held prior elective public office. A successful lawyer suffered a drop in income, if
the became a judge. The salaries of judges, like those of public officials in general, were not generous.

Friedman (II)

Brown v. Board of Education (1954)

New Chief Justice, Earl Warren, wrote the court’s opinion. One of the most momentous of all Supreme
Court decisions.

The dual school system had to be ended. Segregation is inherently unequal, and inherently unlawful.

The Court did not order the system to end inmediately, it left the question of a remedy open. It asked for
arguments from all parties, on how to implement its decision. Then it dumped the problem into the laps of
the local district courts.

Southern states tried delaying tactics and, at worst, resorted to violence.

For at list a decade, almost nothing changed in the deep South. Some federal judges (at a great personal
cost) tried honestly to enforce what was now the official law of the land.

Others were themselves segregationists, who did what they could to obfuscate and delay.

Brown ended segregation in the border states. And the case, and the events and litigation that followed,
certainly catalyzed the civil rights movement.

“Separate but equal” was dead

Even though the Brown case talked only about education, the Supreme Court soon made it crsytal clear that
their principle went far beyond the schools. The 14 th Amendment meant there could be no segregation by
race at all, anywhere, in any aspect of public life. American apartheid was a violation of fundamental rights.

Massive ressistance from the South did not move the Court. Chief Justice warren and his colleagues refused
to budge. When states oneply defied the federal courts, and federal authority, presidetn Eisenhower was
forced to act, although he was no fan of the Brown decision. He sent paratroopers into Little Rock,
Arkannsas, to enforce a segregation order directed at Central High School.

With enormous efforrts and cost, and great personal humiliation and pain, in the decade after Brown, a
handful of black students did manage to force their way into segregated schools and universities (guarded
at times by battalions of federal troops. The civil rights movement, and its leaders, including Martin Luther
King Jr, struggled to break the stranglehold of white supremacy on the South.

It was the age of TV, and some horror incidents against black helped turn public opinion around, in the
North. Under President Lyndon Johnson, Congress passed two historic civil rights laws.

The great Civil Rights Law (1964) banned discrimination in education, housing, public accommodations, and
on the job. And it created a federal agency with power to make rules and regulations, and turn principle into
working reality.

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The Voting Rights Law (1965) was even more significant. It aimed to end the white monopoly on voting and
political power. It got rid of all those legal tricks that had kept blacks from voting (poll taxes, literacy tests…)

It also contained a unique and powerful trigger: any county (or state) where less than half the potential
voters were registered or voted, had to reform itself, and any changes in voting rules and regulations had to
be submitted to federal authorities for clearance.

The North had its own brand of apartheid, more subtle than the southern form, but also quite real. The 2
last decades of the 20th century brought about enormous change.

The Civil Rights Act opened many doors for blacks. They were able to get jobs and positions that exclusded
them in the past.

Blacks increased their role in political life.

The civil rights movement, and the civil rights laws, led to profound changes in American culture.

At the national level, presidents began to feel pressure for “diversity” in judgeship and high federal
positions. President Lyndon Johnson, in 1976, appointed Thurgood Marshall, veteran of the civil rights
movement, to be the first black justice on the US Supreme Court. George W. Bush, elected in 2000,
appointed the first black Secretary of State, Colin Powell.