D R A F T Law and Legal Systems Lonn Lanza-Kaduce

Defining Law Black’s Law Dictionary defines law as “that which is laid down.” In other words, it is posited; it is announced. The implication is that someone has the power and/or authority to pronounce law, but the dictionary plays it safe. It doesn’t indicate who, which begs a variety of questions. Does law have to emanate from a sovereign political entity, a state or government? Is there law before the existence of the political state? When does law emerge in societies? Is there law outside of the political state? Are the rules of organizations (like corporations, churches, universities) law? Are governments subject to a higher law? If so, what is the source of that law? Can we use some construction of natural law to prosecute Nazi war crimes? Do we need to have international treaties and accords before holding a government accountable? But what happens when a sovereign nation refuses to recognize international jurisdiction? In such circumstances, is international law law? The dictionary goes on to declare that law “must be obeyed and followed by citizens, subject to sanctions or legal consequences.” This implies that law is premised on coercion or the threat of coercion and raises other complicated questions. Are sanctions and coercion necessary defining features of law? Does might make right? Is the legitimacy of the coercion at issue? How do we know what is legitimate? What happens when we don’t agree about legitimacy of use of force? How important are procedures in establishing legitimacy? Several commentators note that law does not really emerge from other social norms (including custom) until a “socially authorized agent” is designated to carry out the law (Akers 1965). In simpler societies this may be a village leader, a shaman, or an elder. In more complex societies of the modern world, it is more likely to be an administrative unit. One of the early influential definitions of law was offered by Max Weber (1951: 5), who was trained in sociology and law. An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose.

His definition will suffice as we begin our study of law and society. We may, however, have cause to adjust it later. Functions of Law Consideration of the functions of law may help us get a better handle on what law is. If we consider what law does in society, we may be able to conceptualize it more completely. Unfortunately, no set list of functions is agreed upon. Parson’s (19 ) for example, takes an abstract approach and says that law is primarily integrative for society in a number of ways. It is supposed to make things operate more smoothly (a position we will partially challenge a bit later). One of the ways law is supposed to do this is through social control. Friedman (1984) argues that law’s broadest function is social control. For our purposes we can define social control as securing conformity with group expectations. This emphasis captures both themes in the dictionary definition. Law “tells people what to do and not to do; and it backs up its directives with force” (Friedman 1984: 9). In their review of alternative conceptualizations of law, Akers and Hawkins (1975: 6) also identify the dominant one as being “law as social control through legitimized coercion.” This is a good and important starting point. We all probably accept that law employs negative sanctions (e.g., incarceration, fines, money damages, and other restrictions), and that force will be used if need be to carry out these sanctions. An exclusive emphasis on negative sanctions enforced through coercion (or the threat of coercion) does not, however, capture all of law. Laws can also provide incentives for behavior through subsidies, tax deductions, and even land grants. Would so many Americans borrow money (or at least so much money) to buy homes if the income tax deduction for home mortgages was eliminated? Is the tax deduction for home mortgages an act of kindness to distribute government largesse, a cynical ploy by politicians to get votes, or a policy measure to keep the market economy pumping? Some laws use incentives rather than negative sanctions or force to affect our behaviors. Incentives are another way in which conformity to societal norms (like that of private home ownership) can be achieved. When we think of legal sanctions, we need also to consider positive ones. Indeed, maybe the carrot is more effective than the stick to secure conformity. Emphasizing only the social control function is incomplete in a differennt way. It assumes an existing set of group expectations to which we are to conform. It is biased toward the status quo and does not address how group expectations change. Opium used to be legal and housewives were the largest group of addicts historically. Alcohol sales used to be banned (and organized crime took off). Traffic accident deaths used to be counted as homicides. Abortion used to be a crime (albeit not homicide). Parents used to be able to sell the labor of their young children because it was a protected exercise of their freedom of contract. Child and wife beatings used to be routine and not a legal matter. Clearly, group expectations shift and evolve. Law plays an important role in that development because it deals with conflicts and so performs another function in society. Law provides mechanisms for dispute resolution or conflict settlement (see Freidman 1984). Dispute settlement usually refers to small-scale, local disagreements between individuals. In modern law, disputes are the lifeblood of the courts, especially in an adversarial system like ours. One party (the prosecutor in criminal cases, the plaintiff in civil cases) takes another party (the defendant in both criminal and civil cases) to court because the parties have opposing claims over something of value—property, child custody, freedom, etc. Dispute settlement mechanisms allow legal specialists to apply (and extend) legal principles and reasoning to settle the matters brought before them. In the process, they change rules and establish new expectations. For example, at one time courts did not punish wife beating so long as it was not too severe. The term “rule of thumb” derives from a court case that established the group expectation (at least for a while)—wife beating was permitted so long as the switch was not bigger than one’s thumb. Especially in Common Law jurisdictions (like the U.S.), case resolutions can have a broad reach because of the principle of stare decisis. Prior case determinations become precedents for deciding future cases. Group expectations can also be established or changed at a large-scale level. In modern U.S. law, legislative enactments (e.g., the law on secured transactions) or administrative rule-making authorized by a legislative delegation of authority (e.g., environmental regulations) are illustrative. These efforts also often attempt to resolve larger scale conflicts between competing groups or interests in society. They are often referred to as conflict resolution. Environmental regulations, for example, reflect the input of both environmental groups and business interests. Law can also serve another function in society. Friedman (1984: 10) raises the prospect of a redistributive or social engineering function, which “refers to the fact that law is sometimes used to bring about planned social change—change imposed from on top, that is, by the government…. [It] embodies the planned or ‘engineered’ aspect of social policy—whatever is done deliberately through public choice. It stands opposed to the unplanned market … [where] the law of supply and demand sets prices.” Friedman (1984: 10) goes on to observe that the “legal system is in a way a rival scheme for distributing goods and services. It, too, rations scarce commodities. To raise an army during times of war, we could literally buy soldiers; and in the past some countries did exactly that.” Historically, the U.S. used the draft instead—and obtained more soldiers at lower cost. What grew up is a full-fledged Veteran’s Administration in government to deal with the many programs made available to veterans (e.g., education opportunities, home loans, medical treatment, and pensions). This legal bureaucracy continued to grow as the draft was replaced with a “volunteer” army. Early on in law school, I was introduced to a fencing image of law in which the law is presented as a series of thrusts and parries—it rarely advances too far without some kind of defense or block put up. Friedman (1984: 11) reminds us of that tendency when he warns about pushing the social engineering function too far. In fact, he argues that the social maintenance function of law often prevails. “The legal system keeps the machinery going more or less as it was in the past. After all, even the ‘free market’— even the ‘invisible hand’—needs law to guarantee the rules of fair play. Even in the most laissez-faire system; the law enforces bargains, creates a money system, and tries to maintain a framework of order and respect for property.” Others (e.g., Pound) have reframed this function to be one of predictability. Above all else, the law has to be predictable. Predictability may be important not only because it is necessary for basic activities like making bargains, exchanging money, and protecting property rights but also because it allows for notice. Notice is the underlying theme in Fuller’s (1961) discussion of law’s “internal morality.” He argues that its internal morality makes law possible and holds implications for conformity. Fuller lays out eight ways to fail to make law: 1) by having no rules so that all decisions are ad hoc; 2) by not announcing what the rules are; 3) by applying rules retroactively; 4) by making rules so complex that no one understands them; 5) by having contradictory rules; 6) by making rules that are extremely difficult to comply with; 7) by changing rules frequently; and 8) by having a large gap between the rules as they are announced and the rules as they are practiced or applied. His list remains useful for conducting a critique of modern law. The linkage between the law and the status quo raises one other possible function of law that needs to be presented. Critics of the status quo sometimes argue that law has a powerful ideological function (sometimes referred to as hegemonic) (see Chambliss and Siedman 1982) that supports the status quo. The basic thrust of the argument is that law erects a framework for how we think about things—that framework steers us toward some conclusions and away from others. If law is authoritative and it says we have equal opportunity, then poor people are poor because they have failed (not because the system has failed). If people are uninsured, it’s not the system’s fault because it extends equal opportunity. Law incarcerates someone who stabs us during a robbery but not someone who performs an unnecessary appendectomy. We fear the robber but not the surgeon (even though many of us are more likely to be the victim of unnecessary surgery than a robbery at knifepoint). Does our reaction reflect the dominant ideology embodied in the law? All the functions of law reviewed to this point have an instrumental cast. They help us achieve or maintain concrete observable outcomes (conformity, dispute settlement, planned change, maintenance of the status quo). Law can also have a symbolic or emotional function. It can “feel” good or right or just (or bad or wrong or unjust). Indeed, Weber’s orienting definition that was presented earlier made reference to avenging violations—a retribution-like function. In a similar sense, another early social theorist (Durkheim [1983] 1984) linked crime and punishment to expiation and validation of the norms of society. These mental reactions to law are potentially important in and of themselves. They may hold even greater significance in that how we think and feel may affect what we do. If someone has a strong sense of injustice about a law, are they more likely to violate it?

Lessons from Legal Realism Legal realists reject the notion that legal decisions naturally emerge from legal logic (and stand in opposition to legal positivists). One of the foremost realists, Oliver Wendell Holmes, put it this way: The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow- men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed (Holmes, 1881: 5). Accordingly, legal realists look at the “law in action” (what is done) rather than the “law in the books” (or the “black letter law”) to understand what is going on. So “law is not [just] in the law books” (Feinman 2000: 6). Rather it is “as much a language and a process as a body of rules and rights” (Feinman 2000: 23). In his introduction to first-year law, Feinman (2000) lays out some of the assumptions that are common to legal realists. First, law is not just in the law books. It is supplemented by what enforcers do and how we interpret it. One illustration of the way that practice drifts from black letter law is the flexibility in speed limits many of us depend on when traveling on interstates. Second, law is not secret. Everyone can observe it and lay people can learn it. Third, people make law. Attributing behavior to “the law” only makes it easier for a few powerful people to control it. Fourth, there are no simple answers. Because life is complicated, legal issues usually aren’t simple. They are often not even as straightforward as they first appear (or as they are presented in the media). Moreover, we can be of two minds about matters. For example, we want everyone treated the same but recognize that some situations are different and require individualized justice. This tension between equality and equity manifests itself in a variety of ways in law. For example, should the juvenile delinquent from the “good home” be treated differently from the “homeless” offender because the former has resources to get the help he/she needs? Finally, law is a battleground of political and social conflict. Law may be functional for society, but it also can be a weapon to use against others (including against larger societal interests). Components of Legal Systems Legal realists recognize that there can be a considerable gap between what’s in the books and what is practiced. An example emphasizes the point. The first amendment to the U.S. Constitution states that “Congress shall make no law … abridging the freedom of speech …” Unless we are to impute something to the verb abridge over and above its accepted dictionary meaning (i.e., “to reduce in scope, diminish”), the prohibition seems to allow no exceptions. The language is categorical and proscriptive—no law. Moreover, the Constitution also declares that it alone is the “supreme Law of the Land.” (Article VI, paragraph 2). The “black letter” words of the two clauses don’t leave much wiggle room if read literally. The supreme law of the land bars Congress from diminishing freedom of speech—end of case. But we know otherwise—we know we can’t say anything we want whenever we want and expect the Constitution to save us from law enforcement. We can’t publish pornography; we can’t let loose a tirade of obscenities over the air waves or at the public high school football game; we can’t spread malicious lies about people, we can’t make agreements to commit crimes, we can’t yell “Fire!” in a crowded theater if there is no fire. How do we understand this gap between the law in the books and the law in action? To understand the gap and its importance, we probably should consider what is all captured when we refer to “the law.” Friedman (1984) talks about three components that all legal systems share: content, structure, and culture. How these components are put together makes a difference. A. Content of Law The content of the law is comprised by the rules. The black letter law issues the formal, explicit rules. These black letter rules may be found in constitutions, codes and ordinances, administrative rules and regulations, rules of procedure, and court opinions. The formal rules can be either substantive or procedural. The distinction is an important one. Substantive rules are those norms and standards that we all have to comply with to avoid legal sanctions and/or to avail ourselves of legal remedies. If we want to buy some land, the substantive rules of property law tell us what we must do to have clear title, what benefits we enjoy if we do, and what problems we could face if we don’t. The substantive criminal law will codify what behaviors we must refrain from to avoid punishment—so we can’t “cook” “crack” cocaine and expect to avoid arrest, trial, and incarceration if our activities are discovered by government. We can and should take care in making sense of those black letter rules. We ignore them at our own peril. Note that the substantive rules include what remedies or sanctions are available if someone has violated the legal standards. The substantive rules, however, do not enforce themselves. If Feinman (2000: 8) is right (and I think he is), then “law is a battleground of political conflict.” The parties to any conflict or disagreement can certainly use the black letter rules (or any other lawful scheme) to help settle their disputes or problems, but we haven’t discovered the Utopia yet where all disagreements and problems can be solved privately—without specialists who are authorized to intervene. One of the steps in the evolution of societies occurs when legal specialists (like judges or police) are given authority to resolve disputes, settle conflicts, and maintain order. Legal specialization is a hallmark of the emergence of law from other societal institutions (see Akers and Hawkins 1975). It has several important implications. First, if legal specialists are recognized, they will be important because “people make the law” (Feinman 2000: 8). One of our key values in the U.S. is that “no man (person) is above the law.” Our democratic tradition will not accept an all-powerful law giver or law enforcer. The rest of us have a vested interest in structuring the discretion of the legal specialists so they exercise their legal expertise fairly. But that’s a loaded term. As Feinman (2000: 7-8) recognized, “we often are of two minds about an issue. We would like to have clear legal rules to ensure consistency, fairness, and predictability. But we want to make room for the equities of individual cases in which the application of a rule would produce an unfair result…” Historically that tension was reflected in separate systems for law and equity in the old Common Law we inherited from England. The need to structure and limit the discretion of legal specialists gives rise to procedural rules—the second type of rules that constitute the content of law. To many of us, the procedures should be secondary to the substantive law—they merely help carry out the rules of conduct that organize how all of us do things. To some, however, the procedural rules are at least as important to law as are the substantive rules. In fact, one learned legal commentator, H.L.A. Hart (1961), defines law as the union of substantive (what he called primary) rules and procedural (what he called secondary) rules. Social conventions other than law will have rules—what distinguishes law is that it meshes the two types of rules and emphasizes procedure as well as substance. The procedural rules inform the legal specialists how to conduct their law work. For example, procedural rules limit what the police can do during investigations (e..g. when they can search for and seize evidence and detain or arrest suspects). They structure the role of the judge and prosecutor. They dictate how to pass legislation. Procedural rules also tell the rest of us how to work with the legal system. They tell us how we can file a civil claim for damages if we have been injured or the other party has violated a contract with us. They provide for trials and juries and rules of evidence. They permit and structure appeals. In other words, the business of law could not be conducted except for explicit formal procedural rules. Recognize that part of the gap between the law on the books and the law in action is a consequence of the emphasis we place on formal procedural rules. Formal procedural rules affect how to carry out the letter of the substantive law and sometimes the procedural rule will trump the substantive law. If, for example, a police officer breaks into your house without a warrant and finds you using marijuana for recreational purposes, substantively you have committed a crime. But procedurally, you may be able to get the evidence suppressed from trial and avoid conviction. We will talk about whether such an outcome is fair later, but for now recognize how procedural law can affect how the substantive law will play out. The law in action also drifts further from the black letter law because law is not always formal (explicit or logically laid out). Legal actors have much discretion and the law is not always clear. Only general principles of law can be formalized—their application to particular people and situations is an exercise in discretion and judgment. Not surprisingly, informal ways of doing things develop. The black letter law may be that the speed limit on the interstate is 70 miles per hour; the informal legal practice might grant a buffer of 5 miles an hour so that many of us routinely drive at 75 without much concern about a speeding ticket. The emergence of law and legal specialists has another important implication for society. Specialists seem to provide an important check against the “eye-for-an-eye” blood feuds that have historically destabilized social order in so many places. Blood feuds are most often linked to less developed social arrangements that are organized around kinship. In America, a classic example would be the long-lasting and violent family feud between the Hatfield and McCoy clans in “hillbilly” folklore. One family was injured so they struck back at the other family, which retaliated and so on and so on. Neither side recognized the authoritativeness of the legal mechanism to resolve the dispute so it lasted for years. Feuds are more easily avoided when legal specialists are recognized and used to resolve disputes. Modern nations, however, may not have learned the lesson of blood feuds well. They seem to have their own parallel in international relations. Think about what happens when political conflict is waged through terrorism and pre-emptive attacks like assassination strikes by the governments that are targeted by terrorists. When neither the terrorists nor the governments recognize the legality or legitimacy of international courts or organizations to intervene, what happens? Do the violence and counter-violence continue to spiral out of control with both sides digging in so there is less and less order? Is this scenario so different from the Hatfields and McCoys? As Feinman (1980: 7) declares: “there are no simple answers.” B. Structure of Law The development of legal specialists point to the second of Friedman’s components of a legal system: structure. When legal specialists emerge, the law develops a structure; its organization reflects that specialization. Lots of different structures can occur. We could structure courts so they depend on both judges and juries to reach decisions or we could have judges do it all. We could have crime victims privately prosecute criminals (i.e., hire an attorney to bring the criminal charges) or we could shift that responsibility to the public sector and have a state or district attorney’s office handle the case using tax dollars to pay for it. We could have a unified federal system of law enforcement housed in an agency like the FBI or we could have a limited national police force and many county and municipal law enforcement agencies, over which localities can exert administrative control. One structural feature of American law is federalism. We have a national government and 50 state governments—we have 51 legal jurisdictions. The law is going to vary from place to place and time to time; it will have to deal with conflicts between jurisdictions as many cases will involve more that one body of law in more than one jurisdiction. Even where the substantive laws may be similar, different procedures could apply. Expect some gaps between what appears to be the black letter law and the law in action and expect some apparent inconsistencies across cases. The law is not a simple thing. The basic federal structure is laid out in the U.S. Constitution. Because of the historical experience with the domination of the British and King George, the American colonists who rebelled originally wanted a weak central government. The original structure of government and law was laid out by a confederation, which soon proved to be unwieldy and unworkable. The Constitutional Convention was called to rectify structural problems. Part of the political conflict at that convention was between those who wanted only some strengthening of federal government and those who wanted much stronger centralization. The compromise was a constitution that enumerated the powers that the federal government would have even as it declared itself to be the supreme law of the land—state and local governments and laws had to defer to the federal government and the U.S. Constitution in the enumerated areas. This federal structure continues to generate disputes and conflicts over how the balance between state and federal authority should be struck. When do federal laws pre-empt state and local laws and when do states prevail? The development of criminal law in the United States offers a dramatic illustration of federalism and structure and how they act back on the content of law. Like all areas of law, criminal law is both substantive (contains primary rules) and procedural (contains secondary rules). The police power, which is used to enact most substantive criminal laws (like murder, theft, robbery, drug possession, arson, etc.), was not one of those assigned to the federal government under the constitutional scheme. Hence, to this day, substantive federal crimes are not defined in terms of police power but in terms of implementing one of the enumerated federal powers (e.g., banking, currency, interstate commerce, protecting the borders). That’s how we have federal laws against bank robbery, counterfeiting money, phone fraud, and smuggling. Most substantive criminal laws are enacted and prosecuted by the states rather than the federal government because the police power resides in the states. [The limits of federalism also explain why the vast majority of police officers are hired at the state and local levels rather than by the federal government.] One of the other compromises that was necessary to enact the U.S. Constitution was the Bill of Rights. Those who were concerned with federal government’s potential to abuse the rights of citizens and the states wanted the first 10 amendments to the Constitution. Those amendments contained important criminal procedure provisions including search, seizure, and arrest law (4th amendment), grand jury indictments and the right against self-incrimination (5th amendment), and a series of criminal trial rights including the right to counsel and right to a jury (6th amendment). The concern was with how the federal government might abuse rights, so originally these procedural laws only applied to federal criminal prosecutions (not to state criminal trials). Criminal procedure law was re-structured after the Civil War (which was rooted in conflict over state’s rights and federal control). During Reconstruction after the North had prevailed in war, the 14th amendment was passed. The 14th amendment contains a due process clause tied directly to states: “…nor shall any state deprive someone of life, liberty, or property without due process of law.” Because crime is defined in terms of punishment, which involves a deprivation of life (capital punishment), liberty (incarceration or conditional release as in probation), or property (fines), every state criminal prosecution potentially implicates the 14th amendment. The 14th amendment due process clause became the vehicle for the federal courts (the U.S. Supreme Court in particular) to develop a constitutionally based law of criminal procedure that is imposed on every state. The federal court could have incorporated all of its rulings about the 4th, 5th, 6th and other amendments to the states via the due process clause so there would have been a uniform basis for criminal procedure in all 50 state jurisdictions. It decided against usurping so much power that had historically been reserved for states. Instead, the U.S. Supreme Court adopted a “selective incorporation” doctrine where only the most fundamental rights guaranteed by the Bill of Rights will be imposed on the states through the 14th Amendment due process clause. The right to trial by jury illustrates the complexity. Trial by jury is fundamental to criminal prosecution and has to be honored by all the states because of the 14th amendment. Although federal criminal trials must have 12 jurors, the number of jurors can vary from state to state (so long as it does not slip below six) since the number is not so fundamental. That it was the U.S. Supreme Court that altered criminal procedure reflects another aspect of the structure of our legal system. The U.S. Constitution created a separation of powers and a system of checks and balances. It divided the federal government into three ostensibly co-equal branches of government and enumerated what each of the branches could do—kind of. That enumeration creates a system of checks and balances. Congress can tax, authorize spending, pass laws, ratify appointments and treaties, declare war, etc. but cannot carry out the activities of governing. The President can make appointments, negotiate treaties, wage war, and run the government but only after the Congress has acted. The federal Supreme Court has appellate jurisdiction over all cases and controversies arising under the Constitution but depends on Congress for its funding and the executive branch for carrying out its rulings. Nowhere in the Constitution does it say that the Supreme Court can declare actions of the legislative or executive branches null and void because they are unconstitutional. That power, known as judicial review, was created by judicial interpretation and was first announced in Marbury v. Madison. A brief of that important case is appended to this chapter. It illustrates many of the points about law that Feinman articulated. It also shows an important development in the structure of our federal government. Judicial review is why the federal court could alter criminal procedure in the states once the 14th amendment joined due process to the states. The Constitution is only one of the factors that structure American law, As Weber noted, in modern times much of the work of law is done by administrative staffs. This implies some level of bureaucratization. Much law now operates through bureaucratic administrative agencies (welfare, environmental regulations, worker’s compensation, licensure, correctional agencies, public schools, police departments, etc.). We will return to some of the problems of bureaucratic structure later when we study the gap between the law in the books and the law in action and when we examine Weber’s ideas about law and society. C. Culture of Law Friedman’s third component is legal culture. We have feelings and thoughts and ideas, sometimes even full-blown philosophies, about law and justice. Our cultural orientations will affect how we respond to legal problems. For example, despite being critical of “hyperlexis” (“too much law and too many lawyers,” see Feinman 2000: 4), many of us consider suing others when things go bad. So do we believe there are too many lawyers and too much law? On the other hand, think about how many people you know who haven’t sued when they were legally wronged. At least some observers think that our legal culture encourages most of us to “lump it” rather than pursue our legal interests. For them, the problem is not too much litigation but not enough, especially for those who are disadvantaged and can’t easily access the civil courts. Indeed “we often are of two minds about an issue” (Feinman 2000: 7). The cultural orientations of the population make a difference in law. For example, Congress quickly authorized the Federal Trade Commission to keep and enforce a “no- call list” to protect people from pesky telephone marketers once a federal judge ruled that Congress had not previously given that authority to the commission. As one Congressman said, 50,000,000 Americans can’t be wrong. Elected officials, like legislators, once in a while do listen to what we think. Many times the cultural orientations of the legal specialists are even more important than that of the public. Most of the cases they deal with won’t be in the public spotlight. Judges, prosecutors, police, jurors, hearing officers, bureaucrats have discretion to interpret and apply the law, a discretion that we should expect to be influenced by their experiences and belief systems. Different ideas about the law will exist among practitioners. For that reason, we should expect the same law to be carried out differently by different specialists. We should expect a gap between law in the books and law in action. We should also expect differences of opinion in how legal specialists interpret the law —it is the stuff that good lawyering is about. Each lawyer has incentive to interpret the law and facts to benefit her/his client. The system invites clashing interpretations. We should not be surprised about clashes over judicial interpretation. Judges were lawyers; they were socialized to clash over points of law and fact. Moreover, we have institutionalized judicial review as part of the judicial role. One of the cultural debates both on and off the court is how to interpret the U.S. Constitution. To what extent is the Constitution a living document that evolves over time? Do we need to construct it to reflect current conditions and thought (constructivism)? Or should it be interpreted in accord with the intent of the framers of the Constitution (i.e., frozen in time and place)? Feinman (2000: 20-22) identifies ways that this latter approach, known as original intent interpretation (or originalism), is subject to constructivism. First is the problem of whose intentions to consider. “Reference to ‘the intention of the framers’ suggests that there existed a definable group of framers and that we can determine their intentions with a high degree of certainty. …The original Constitution was drafted, negotiated, and voted on in a convention composed of delegates from different states with different points of view, and then ratified by the members of thirteen state legislatures and conventions. The Bill of Rights was drafted in the First Congress and then submitted to the states for ratification. Subsequent amendments were drafted by later Congresses and ratified by still more state legislatures. Whose intent are we to focus on—the drafters of the provision at issue, others who participated in the debate at the convention or in the Congress, or members of the ratifying legislatures? And how are we to ascertain their intent: through formal statements, committee reports, floor debates, grandiloquent speeches, news accounts, private letters, or other historical sources?” … Feinman 2000: 20-21. No matter which we favor, it will involve constructivism. “Second even assuming we know whose intention to construct and how to do it, what kind of intention are we trying to construct?” Feinman 2000: 21. Feinman argues that the framers of the original constitution did not contemplate that subsequent courts should defer to their intent. “Lawyers and statesman in the late eighteenth century simply did not hold a conception of fundamental law as the positive enactment of a legislative body whose intention in enacting the law should guide its interpretation. For them, law generally reflected community norms…” In other words, the dominant approach of the framers was constructivism. Feinman (2000: 21-22) notes that the third problem with original intent is the problem of change over time. The framers could not anticipate all the new situations, technological advances, and cultural transformations that have taken place. To deal with changed circumstances, originalism can only fall back on general understandings, leaving the analysis “unmoored from historical intention and sets the Court loose to try to construct its own meaning…” Constructivism inevitably displaces originalism. Let me be bluntly frank about the tired cultural claim made by some who criticize the Supreme Court for “making law.” The Constitution contains about 4,400 words, but it is the Supreme Law of the Land. As such it has to work in our present day world, anticipate the future, and be able to incorporate all other law lest our legal system fails. The Court has to make law; it has no choice. Terms like “free speech,” “interstate commerce,” “due process,” “equal protection,” and “war powers” are not self-defining. Judicial activism is necessary; conservative and liberal justices engage in it all the time. For example, conservatives have created all sorts of exceptions to fourth amendment search and seizure law to avoid the traditional probable cause and warrant standards—exceptions that have no textual support in the fourth amendment or historical support as the intent of the framers. Liberals, on the other hand, created Miranda warnings using a broad interpretation of waiver requirements for one’s right against self-incrimination. And the reason these “activist” positions became the law of the land was that middle-of-the-road justices (or the swing voters) signed on to the opinions. What we despise as activism is nothing more than an interpretation with which we disagree. The court, and our legal system, operates best when it is de-politicized. Our name calling is so much propaganda that neither advances law nor helps us understand it. I frequently disagree with Supreme Court interpretations, but perhaps “... it is emphatically the province and duty of the judicial department to say what the law is” (Marbury v. Madison). What would the consequences be if we let every legal specialist interpret the most basic legal principles in the way that they see fit? What would the consequences be if we allowed the President or the Congress or each State to interpret the law as they see fit, especially if the interpretations were contradictory? Feinman (2000: 23) argues that judges have latitude in legal interpretation, but that their discretion is not unbridled. “Justices are constrained by the ways the constitutional text has been understood historically and by the political and legal culture.” Chambliss and Seidman (1971) discuss a variety of inputs that will affect appellate decision-making. One is the issue that is presented. Justices cannot very well make law on an issue that is not presented. A second concerns the permissible rules of law that apply to that issue. Justices do not make law out of whole cloth. They may expand on a previous doctrine or extend its application to a novel situation, but they are unlikely to make it up entirely. For example, rulings on abortion were predated by rulings on sexual privacy including rulings permitting the distribution of birth control. A third factor is the policy considerations that are raised. Rulings on civil liberties of suspected terrorists raise a different set of policy considerations than do decisions about the rights of public school students. A fourth input is the personal characteristics of each respective justice. Some are conservative; some are not. They come from different backgrounds and have different experiences and ideas. Another factor is legal and judicial socialization. Many justices go to elite law schools and bring with them the legal culture that they learned while there. Some have practiced law a great deal; others have taught law or sat on the bench most of their careers. These professional experiences will affect their decision-making. Chambliss and Seidman also draw our attention to situational factors. Some situations affect decisions. The constitutionality of interring Japanese Americans during World War II was determined during times when national security was threatened. Would the decision be the same if the situation were different? During the Watergate crisis that brought President Nixon down, the court managed to produce a unanimous decision about Nixon’s tapes. How much did the situation affect how that case was handled? Finally, Chambliss and Seidman also identify the importance of the court’s own organizational interests. Part of the structure of law in the U.S. government includes the separation of powers between the three branches of government (executive, legislative, and judicial). That structural dimension is reinforced by a system of checks and balances so that no one branch of government can dominate. In other words, efficiency was sacrificed to reduce the likelihood of an abuse of power—something that may be understandable given the colonial experiences with King George that led to the American Revolution. The judicial branch depends on Congress for its funding and much of its jurisdiction. It depends on the executive branch for enforcement. Supreme Court justices, even though they have life-time appointments that insulate them from many political battles while on the bench, cannot afford to ignore the organizational position of the court. Arguably, their decisions are somewhat constrained by their organizational interests.

References Akers, R.L. and R. Hawkins. Law and Control in Society. Englewood Cliffs, NJ: Prentice-Hall (1975)

Chambliss, W.J. and R.B. Seidman (1971). Law, Order, and Power. Reading, MA: Addison-Wesley (1971).

Chambliss, W.J. and R.B. Hawkins. Law,Order, and Power. 2nd ed. Reading, MA: Addison-Wesley (1984).

Feinman, J.M. Law 101. Everything You Need to Know About the American Legal System. New York: Oxford (2000).

Friedman, L.M. American Law: An Introduction. New York: W.W. Norton (1984).

Hart, H.L.A. The Concept of Law. London: Oxford at Clarendon Press (1961).

Holmes, O.W. The Common Law. Cambridge: Harvard Univeristy Press (1963); first published 1881 by Little, Brown. MARBURY v. MADISON 1 Cranch 137; 2 L.Ed. 60 (1803) Case History: A petition for Mandamus (a writ that commands performance of a specific official duty which the petitioner has a right to have performed) was filed with the U.S. Supreme Court-- as the court of original jurisdiction (or trial court rather than appellate court). Facts: Marbury and others were appointed as Justices of the Peace for the federal District of Columbia (Washington, D.C.) at the close of John Adams's presidency in February 1801. The appointments were completed pursuant to law by Adams's Sec. of State, John Marshall, who had just been named Chief Justice of the U.S. Supreme Court. But the appointments had not been delivered prior to the beginning of Jefferson's Presidency, when the balance of political power shifted from the Federalists to the Democrats. The new Secretary of State, James Madison, ignored the appointments. In the December term of 1801, Marbury and others petitioned the Supreme Court for a writ of mandamus. A provision of the Judiciary Act of 1789 enacted by Congress provided that the Supreme Court should have original jurisdiction over petitions for mandamus involving federal officials. The Supreme Court ordered the Secretary of State to show cause why such a writ should not be issued. The court decided the case when it reconvened in 1803. Issues: Were the judicial appointments valid? If so, is mandamus an appropriate remedy? Does the Supreme Court have the Constitutional authority to issue mandamus under a grant of original jurisdiction in the federal Judiciary Act of 1789? Marshall's opinion: The judicial appointments were valid and the executive branch should have honored them. "The government of the U.S. has been emphatically termed a government of laws, and not of men. ...[W]hen the legislature proceeds to impose on ...[an] officer other duties [beyond those political acts determined by the executive branch]....; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. ... It is, then, the opinion of the Court [that Marbury has a] right to the commission..." Mandamus would be an appropriate remedy for such nondiscretionary functions of government officials. BUT, Marshall held that the Supreme Court did not have original jurisdiction over mandamus. He noted that the explicit language in Art. III of the U.S. Constitution limited the kind of cases over which the Supreme Court had original jurisdiction; the bulk of its judicial power was appellate. Mandamus was not one of the areas over which the Constitution granted the Supreme Court original jurisdiction. He noted the separation of powers doctrine in the Constitution, the purpose of which was to limit power. If the Constitution is to be the supreme law of the land, then remedies must exist when members from one branch overstep their grant of power. "The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. ... It is emphatically the province and duty of the judicial department to say what the law is. If two laws conflict with each other, the courts must decide on the operation of each. ...The judicial power of the United States is extended to all cases arising under the constitution. ... [I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution..." The provision of the law that gave original jurisdiction over mandamus to the Supreme Court was unconstitutional. Holding: No mandamus was issued, because the federal law which authorized the Court to do so was unconstitutional. Judicial review was born.