On July 4, 1776, the Declaration of Independence was adopted by the Continental Congress, and the United States of America was severed from the rule of the British Crown under King George III. The government and the law have changed and developed over the past 250 years, and while the United States is a young country, relatively speaking, our civic development has been influential across the world. From the tradition of judge-made English common law to the modern administrative state, the United States of America has been a guide for developing a certain kind of representative democracy. The Declaration of Independence outlined 27 grievances that the Founding Fathers had against the king that led to the decision to sever the colonies from British rule. Many of these grievances were related to the way the king handled his lawmaking powers, including the way he forced legislative bodies to travel, refused to provide his assent to laws in a timely manner, and dissolved certain legislative bodies at his whim.1 The grievances also criticized the way the king handled the courts, by refusing to approve laws that established judiciary powers, and undermining the independence of judges by making them “dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”2 These grievances were part of the foundation of the new government and new body of laws the founders wanted to build. Influence of English Law at the Founding Though it may not seem like it makes much sense in the modern world, some of the most foundational legal concepts in the United States are based on the judge-made laws of England. The legal norms that are created and enforced by judges rather than written laws and constitutions are referred to as the “common law.”3 The early United States operated under heavy influence from the English common law system as the development of the legislative branch was happening. Under a common law system, the judge must enforce the known laws and customs, and previous judicial decisions are the best evidence of such laws and customs.4 The common law was not entirely abandoned when laws started being formally recorded, as some common law concepts became more formalized by the legislature when they were written down and codified.5 In the United States, the English common law is still referenced in legal proceedings, and certain decisions of the English courts are used to teach legal concepts. For just one example, criminal law classes may teach the case of The Queen (Regina) versus Dudley and Stephens, decided in 1883, which established that necessity is not a defense to murder.6 Further, the United States drew on the English law system of issuing “writs.” Most notably, we continue to issue warrants and subpoenas to compel individuals to appear in front of a court.7 Though the role of the courts in developing the basis of the law in the United States is important, the Founding Fathers envisioned a different kind of government that would balance the power of the courts with the power of the people and the power of the executive. Foundations of the Constitution – Three Branches The Founding Fathers set up a government of checks and balances, where the legislative, executive, and judicial branches of government would have clearly defined roles and could make sure no single branch acquired enough power to make the others obsolete. In one of the most famous Supreme Court opinions, Marbury versus Madison (decided in 1803), Chief Justice John Marshall defined the role of the nation’s highest court for the first time stating, “It is emphatically the duty of the judicial department to say what the law is.”8 This ruling established the concept of judicial review, where the courts are able to determine whether a law passed by Congress has violated the Constitution. This decision solidified the importance of the judiciary while also emphasizing that Congress should be the primary lawmaking body of the fledgling United States, rather than continuing with the common law tradition. Congress and the Legislative Branch The Constitution made it clear that “All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”9 Part of the Connecticut Compromise, the Constitution established a bicameral legislature to ensure that both large and small states were represented in the lawmaking branch of government. Bills are introduced by a sponsor, assigned to a committee, and sometimes released by the committee for a vote. Once the bill passes the House of Representatives, it moves to the Senate, then the two houses agree on the final language of the bill which can then be signed into law or vetoed by the president.10 Through the system envisioned by the Founders, the federal Congress has a specific list of powers that includes: the power to regulate commerce between the states, the power to tax, the power to raise armies, the power to coin money, etc.11 When considering the history of law in the United States, the role of Congress has shifted in importance through the life of the country. One of the enumerated powers of Congress is to “establish post offices and post roads.”12 Under this power, Congress went through the process of identifying the specific roads that should be considered “post roads,” listing each and every route and specifying which individual towns the roads had to pass through in bills that followed the traditional bicameral process.13 As early as 1791, there was debate over whether or not that specific job should be delegated to the president, rather than using the entire body of Congress to make such specific determinations.14 The answer in 1791 was that the role had been specifically given to Congress in the Constitution, and assigning it to the executive would be an unconstitutional delegation of Congress’s power to establish post roads.15 That power would eventually be shifted to an executive department called the “Post Office Department,” which Congress formally established in 1872.16 Shifting certain powers from the direct hand of Congress to an executive agency has been the trend over time as the country has grown immensely, its complexity has increased, and the needs of the population have changed. Administrative Agencies The modern “administrative state” has been in development across the nation’s history, but one of the major shifts came with the New Deal programs of the 1930s.17 Administrative agencies are created by Congress and operate under the leadership of the executive branch. Administrative agencies make rules that are published in the Code of Federal Regulations (CFR) under authorization by Congress, they are created and given an “intelligible principle” under which to operate to avoid nondelegation challenges.18 The idea of the administrative agency is for Congress to support its work through empowering agencies that can respond more quickly than the traditional Congressional process requires, be staffed by experts in a particular field, not bog down Congress, and be more accountable to the public through their attachment to the executive branch.19 Congress still plays an active role in lawmaking, as these agencies are empowered through laws recorded in the United States Code, but once Congress provides the intelligible principle, the agency is allowed to develop and pass its own binding regulations in the CFR if it follows the procedure outlined in the Administrative Procedure Act (APA). There has been criticism of the role of these agencies, as some view them as a violation of the Constitution because Congress is delegating some of its lawmaking power to these agencies, and those selected to oversee agencies are not directly elected by the people. Agencies may allow the government to respond more quickly to certain needs than going through the traditional process of bicameralism and presentment (bill passes both houses of Congress and is signed by the President), and despite the criticism of them and successful challenges to their authority in recent Supreme Court cases,20 administrative agencies remain a large part of modern American law.
Natalie Miller is a third-year law student at Northern Kentucky University’s Salmon P. Chase College of Law. She is the editor-in-chief of the Northern Kentucky Law Review and will be published in her law school’s journal with a student note about Ohio’s mandatory bindover policies. She worked for five years as a middle-school science teacher in northern Kentucky, has worked on preparing educational materials for the Cincinnati Bar Association as a legal education intern, and currently works as a legal intern for the Children’s Law Center.