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The Rule of Law in the United States: a Survey

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The Rule of Law in the United States: a Survey The Rule of Law in the United States: A Survey AMERICAN BAR ASSOCIATION COMMITTEE TO CO-OPERATE WITH THE INTERNATIONAL COMMISSION OF JURISTS (Section of International a!ld Comparative Law) The Section of International and Comparative Law of the American Bar Association organized in 1955 the Committee to Cooperate with the International Commission of Jurists. The "Survey" here contained is a Statement by that Committee and is not to be taken to represent the opinions or views of the American Bar Association or of its Section of Inter­ national and Comparative Law unless and until adopted pursuant to the by-laws of the Association and of the Section. Printed by INTERNATIONAL COMMISSION OF JURISTS 2, Quai du Cheval-Blanc, Geneva, Switzerland Inquiries for additional copies should be sent to this address or to AMERICAN FUND FOR FREE JURISTS, INC. 750 Third Avenue, New York 17, New York CONTENTS Introduction . 7 List of Contributors of Material to the Text 12 The Rule of Law in the United States: A Survev Committee I: The Legislative and the Rule of Law. 14 Committee II: The Executive and the Rule of Law . 31 Committee III: The Criminal Process and ,the Rule of Law 69 Committee IV: The Judiciary and the Legal Profession under the Rule of Law . 143 Bibliography . 165 The Survey Questionnaire . 168 5 THE RULE OF I.JAW IN THE UNITED STATES: A SURVEY Introduction In the ten years since the International Commission of Jurists was organized in 1952 it has become so well known in so many centers of legal culture throughout the free world - the high courts, university law faculties, practitioners, assooiations and institutes - that repetition of its origin, purpose and history is unnecessary here. It has fostered the creation of national sections and co-operating groups in many countries. In the United States the unit is the "Committee to Co-operate with the International Commission of Jurists," formed by the Section of International and Comparative Law of the American Bar Association. This "Survey of the Rule of Law in the United States" was undertaken by this Committee in response to a "Survey Question.,. naire" prepared by the Commission in February 1960. We under­ stand that similar studies have been prepared by corresponding groups in other countries. The members of this American Committee have enlisted the active, co-operating assistance of a wide number of judges, legal scholars and practitioners, to draw upon their experience with the law in action to prepare the materials which have been here fused into the answers that follow the separately stated questions framed by the Commission. A list of those Committee members and their collaborators who have thus participated in the preparation - by original written material or the critique offered by them to successive drafts - appears following this Introduction. An earlier study (1958) by this same Committee and bearing the slightly shorter title of "The Rule of Law in the United States," was in the form of a running text, of half the length of the present "Survey" and was conceived upon somewhat different bases of approach. More than 20,000 copies of that document were printed and distributed by the Commission. This 1962 Survey goes into much greater detail in the "Executive" and particularly in the "Criminal Process and the Rule of Law" sections. The two docu­ ments, however, are complementary each to the other. Tt will be observed that nowhere in the present statement is any definition attempted or over-all summary given of the basic concept and meaning of the "Rule of Law" phrase. It is left for the reader - assumed to be the foreign, non-American lawyer-student - to form his own concept of what that term means in this country. 7 The Questionnaire as framed offers no place for discussion and office, declaration and conduct of war, and the national military exposition of any basic philosophy of law in the United States, nor forces. Some powers are expressly forbidden to the states: e.g., the does this statement venture consciously into this field. Some readers, conduct of foreign relations, coinage of money and ex post tacto however, will perhaps find in these pages a reflection, but certainly laws. Then there are a considerable number of rights of the personal not one planned by the participants in its preparation, of the impact order which the Constitution guarantees to all citizens. These are uoon American judges, lawyers and legislators since 1910 of Dean "those wise restrictions which make men free"; many of these are Roscoe Pound's beliefs that the law should be shaped to give effect treated in the pages which follow. In the area of criminal off~nses to de facto individual and social "interests," articulately expressed. proscribed by the Congress are violations of the powers of the federal It must be emphasized that the statement is not a compendium government such as counterfeiting; transportation of narcotics or or cross-section of what the participants think our law should be; stolen property in inter-state or foreign commerce; smuggling into on the contrary, it is an attempt to state within the framework posed the country from abroad; evasion of federal taxes; the use of the by the Questionnaire what the law is today. At the risk of misleading mails or other media of inter-state and foreign communication to over-simplification, passing mention may also be made .of an under­ perpetrate frauds in property sales; offenses by the military forces; current in American judicial court opinions of "natural law." Some espionage, treason and other offenses against the national security. jurists such as Judge Learned Hand have rejected natural law. Mr. All powers other than those expressly or by implication con­ Justice Felix Frankfurter on the other hand, in a considered formal ferred on the federal government or expressly forbidden to the opinion, has referred to the long and well founded "meaning and states lie within the scope of state jurisdiction. The great body of justification" of naturallaw.1 We do no more here than mention the criminal sanctions lies with the states: murder and the lesser degrees recurrence of sharply divergent views_ of violence against the person; the common crimes against property Two other phenomena of the American legal scene should be rights such as burglary, theft and misappropriation; evasion of local alluded to. One is the problem of conflicting and at times overlapping tax imposts; bigamy and offenses against minors. These are the jurisdiction inherent in any federation system of government. We broad lines. In a few instances the same act may be a violation of have a national (known as the "federal") government functioning both a federal and of a state law. under the federal Constitution and we have fifty "sovereign" states The other functional characteristic of the American legal scene whose existence and general powers are equally definitely recognized to which preliminary attention should be called here is the scope of and prescribed by that same Constitution. Each of the states has its the power of judicial review that stems from the supremacy of written own constitution and tripartite division of powers between the constitutions in a structure of powers balanced, but divided hori­ executive (a "governor"), its legislature and its courts. At several zontally in our federal system, between the national and the state places in this study - particularly in the "Criminal Process" section­ governments. mention is made of differences in some respects between the "federal" Wholly within the scope of challenged federal action - executive, law as it has evolved in the judicial interpretation and application of legislative (an act of the federal Congress) or judicial (a case pre­ the federal Constitution to matters of federal jurisdiction, and the sented for decision in the first instance or on appeal from a lower laws of the states as applied by their courts (with variations between federal court) - one litigant may invoke the judicial power of review the several states) to matters of state jurisdiction that are not to decide whether such action thus brought into question is a violation governed by the federal Constitution. This 1789 document and the of some right prescribed or an abuse of power limited by the federal subsequent Amendments to it give to the national government Constitution. The court will determine whether the executive act was specified powers which are in most, but not all, respects exclusive. forbidden or required by the Constitution; or, if the act in question To these the federal courts have accorded apparent extensions of is derived from some purported power created by an Act of Congress, jurisdiction deemed by implication reasonably necessary to implement whether the statute is "unconstitutional"; or whether the decision of those powers expressly conferred upon the national government. the lower federal court is or is not within the scope of federal powers Among these express powers are: imposition of certain forms under that Constitution (or is otherwise in accordance with es­ of taxes, regulation of commerce between the states and with foreign tablished law). countries, naturalization, bankruptcies, coinage of money, the post When a case comes before a federal court in which the issue is squarely presented of whether the challenged action of a state organ 1 Adamson v_ California, 332 U.S. 46, 65 (1947); Swisher, The Supreme Court - its executive, its legislature by a statute or its courts by a decision - in Modern Role, 146 (1958). is in conflict with the overriding powers of the federal government 8 9 under the federal Constitution, the court will determine that issue. divisions of the Legislative, the Executive, the Criminal Process, the If the sole issue presented by the exercise of purported state authori~y Judiciary and the Bar- each in relation to the Rule of Law.
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