2 Chapter 4: How Public Law Structures Politics
Public law is the law that governs relationships between the government and private persons or private institutions (such as businesses or non-governmental organizations), whereas private law governs the relationships between private entities.
To continue a long-running theme of this book, the definition of public law is murky, however. In numerous indirect ways the broader concept of the law (a system of rules adopted by a country) always touches upon government and individuals—it is, of course, the government itself that makes law, judicial institutions and actors adjudicate law, and individuals are invariably effected. For example, a tort case in which a private person brings an injury claim to court against another private person will always have some effect upon society. Suppose this hypothetical tort case involves a bicyclist who was hit by a motorist. Local government may seek to mitigate against future accidents by constructing a bicycle lane or a four-way stop or a traffic light on the road in which the accident took place, mandate bicycle helmets for riders, or lower the speed limit in certain areas. In short, private law has a public effect. But what makes public law unique is that the government is not merely an arbitrator but a key subject in the proceedings that are adjudicated. The relationship between government and individuals is not an equal one: private persons are subordinate to the state. Public law is the legal mediation of this unequal relationship between government and private persons. There are distinct areas of public law: constitutional law, criminal law, administrative law, tax law, and procedural law. In this chapter we will focus on constitutional law and provide a brief overview of criminal law.
Common Law vs Civil Law
To begin, it is important that we draw a distinction between the common law tradition and the civil law tradition. It may be helpful to think of common law and civil law as broad legal systems that determine how public law operates in a particular country. Common law refers to law that is made from the precedent of judicial decisions. In a common law country, judges—particularly those in the highest courts—can make law by deciding cases between private persons or between government and private entities.
The U.S. Supreme Court decision Roe v Wade (1973), which found a constitutional right for women to have access to an abortion, is an example of law made through a common law tradition. Key to the concept of common law is the legal principle stare decisis (Latin for “let the decision stand”), a principle in which judges are bound to precedent (past cases).
In a common law country, no judicial decision stands in isolation—every case and decision are connected to a body of law relevant and binding to future cases, a veritable library of judicial decisions in the past that directly determine cases in the present.
When we say that past decisions are binding, this does not mean that precedent is a concrete, immovable force and that all present cases are completely determined by past decisions. Precedent can be and has been overturned. Generally speaking, the older the precedent and the more cases that have relied on that precedent, the stronger it is, and thus the harder it is to overturn. Unanimous decisions, in which all judges or justices agree, also make for stronger precedent. There are exceptions to this in extraordinary circumstances.
Take for example the issue of slavery and civil rights for black Americans. In Plessy v. Ferguson(1896), the U.S. Supreme Court ruled that separate but equal segregation of persons by race was constitutional. There was only one dissenting opinion to the decision, was upheld it subsequent decisions (notably Lum v. Rice, 1927) and remained precedent for nearly sixty years. Nevertheless, the Supreme Court’s unanimous decision in Brown v. Board of Education (1954), which ruled that the separate but equal doctrine was unconstitutional in public education, effectively overturned the Plessy ruling.
The common law is an English tradition that developed after the Norman Conquest of 1066. The name is derived from the fact that it was a commonly shared law across all the king’s courts of England. The British Empire subsequently spread the common law tradition to its colonies. Over the centuries, England has produced a rich and deep corpus of law through court decisions. This is the English constitution—all the court decisions of its common law tradition, in addition to all acts of Parliament, conventions, and the Magna Carta. Compare this to the US Constitution, with its 7 Articles and 27 Amendments that can be read in its entirety in an afternoon. By the 1760s, Sir William Blackstone sought to organize this massive (and massively haphazard) body of judicial decisions in England, and to this day his commentaries and categorization are consulted by everyone from students to justices on the Supreme Court. As a system of law, the common law exists today as the main body of law in the United Kingdom, Ireland, Australia, New Zealand, Canada, and the United States. There are exceptions within these countries: Scotland (in the UK), Quebec (in Canada), and Louisiana (in the US) all have a mixture of common and civil law. In the case of Quebec and Louisiana, this is due to the influence of the French civil law system. There are several other countries in the world in which common law is combined with civil law, customary law, Islamic law, or Judaic law.
Civil law is a legal system in which codified law is organized into a referable system to be used in the adjudication of law. Codified law refers to law that is written down and organized into a code of law. Proclamations, decrees, charters, executive orders, and law passed by a legislature are examples of codified law that can be compiled for purposes of deciding legal cases. In a civil law system, statutory law (law passed by a legislature) is generally superior to case law. Civil law in the American legal tradition is characterized by the United States Code, which is the codification of all federal statutory law. This US Code can of course be used by judges (and justices of the Supreme Court) but precedent from past cases generally carry more weight in judicial decisions in the United States than statutory law. In “Common Law Courts in a Civil Law System,” Antonin Scalia argues that a civil law system is more democratic because judicial decisions are based on statutes that were passed by an elected legislature. For Scalia, the common law allows for judges to pick and choose past cases that line up with their political beliefs, thus legislate from the bench, and because judges and justices are appointed, not elected, the common law is undemocratic.
In both common law and civil law systems, judges and justices are tasked with statutory interpretation—discerning the meaning of a particular law. How do we interpret law? Interpretation requires a method to discern meaning. One method is to determine the intent of the legislature that drafted the law. What did the writers of the law intend by writing it? In determining intent, a judge may use legislative history—proceedings of floor debates, records, committee hearings, anything written or spoken about the law within the legislature. Another method for interpreting law is textualism, the favored method of Scalia. Textualism calls for judges and justices to interpret based off a close reading of the text of the law. As Scalia has argued, textualism is not a strict, literal interpretation—a limited context is necessary to arrive at the spirit of what a law means. The text of the law should be understood “reasonably, to contain all that it fully means.”
Reflect for a moment on what method you may prefer in determine what a law means. What if you were a judge—would you prefer a common law system, in which the precedent of case law carries more weight in your decision than statutory law, or would you prefer a civil law system, in which case law is subordinate to using a code of statutory laws to make a decision? Is the intent of the law maker important to you in determining what a law means? Or is it the text of the law, not intent, that is the best method for discerning meaning?
Understanding the US Constitution
First of all, what is a constitution? Its oldest meaning comes from Aristotle, who considered a constitution to be the foundation of government—the literal bedrock upon which political institutions are built and political ideas and values are affirmed. In this Aristotelian conception, monarchies, aristocracies, and democracies are constitutions. We no longer call these forms of government constitutions, but this older meaning as a foundation of government remains. Consider the US Constitution. Among the ways of understanding this document is that it is a blueprint, a foundational document, of a particular kind of government: a constitutional republic with a federalist system of shared powers between a national government and state governments. As mentioned in the previous chapter, the English constitution, on the other hand, fits the old definition of constitution quite well. The constitution in England is the entire body of law, developed over time, upon which its political institutions rest.
For the rest of this chapter, however, we will focus on American constitutional law, and to that end, it is essential that students get a solid understanding of what the US Constitution is and its effect on American politics.
The US Constitution is widely revered as one of the finest foundational documents of government, but in the late summer of 1787, when the members of the Constitutional Convention closed their proceedings, it was nobody’s favorite document. Everyone, including James Madison, arguably the main architect of the Constitution, was unhappy with certain aspects of what was a messy compromise (for Madison, he came away particularly distraught over equal representation in the Senate, which he felt was a severe disadvantage to more populous states). But over time the Constitution—now the oldest written constitution in the world—has gained strength, influence, and 27 Amendments. The Constitution continues to be contested and referred to in the day-to-day politics of America.
The Constitution’s main compromise resides in two plans for government presented at the Constitutional Convention of 1787: the New Jersey Plan and the Virginia Plan. The New Jersey Plan, favored by smaller states, envisioned a powerful unicameral legislature with equal representation for each state regardless of population. This legislature could overturn state law and had the ability to remove the executive leadership, which was envisioned as a plural executive (more than one chief executive officer). This legislature had the same powers as under the previous form of government, the Articles of Confederation, the most important being veto power for every state. This meant that the federal government needed unanimous approval from all the states to undertake any action. The Virginia Plan, favored by more populous states, envisioned a bicameral legislature with representation in both chambers based on population. The lower house in the Virginia Plan elected the upper house, the president, and the federal courts, including the Supreme Court.
Reflect on this plan—the legislature wields tremendous power, in effect appointing the rest of the federal government. How democratic is this plan? Compare to America’s federal government today. Which is more democratic?
The New Jersey and Virginia Plans were cobbled together to form the great compromise of the Constitutional Convention—a bicameral legislature with the lower house based on population (and divided by districts within states), an upper house with equal representation (2 representatives per state) and appointed by state legislatures, an executive indirectly election by the people through the Electoral College, and a Supreme Court and lower federal courts appointed by the president with the upper chamber’s approval. This is the basic architecture of the federal government, but the Constitution does much more than erecting this architecture, and to understand some of its important features it is necessary to look in more depth at each of the 7 Articles. To begin, let’s use an acronym: L-E-J-S-A-S-R. Each letter corresponds to the first letter of the subject for each of the seven articles. L stands for Legislative powers; E stands for Executive powers; J stands for Judicial Powers; the first S stands for State powers; A stands for Amendment process; the second S stands for Supremacy clause; and R stands for Ratification process. You can remember LEJSASR with one of two handy mnemonic devices: Let’s Envision a Just, Sustainable, And Secure Republic; or, Let’s Eat Just Soup And Sandwiches, Randy. Pick one of these (or devise your own, so that you can remember LEJSASR.
The first three letters of this acronym correspond to the three branches of federal government: Legislature, Executive, and Judiciary. Article I pertains to the legislative powers and begins identify where these powers lie:
“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.”
The next several sections deal with the qualifications, elections, and procedures of these two chambers of Congress. Section 2 pertains to House qualifications and role in impeachment of a president, Section 3 Senate qualifications and role in impeachment, and Section 4 pertains to elections for both chambers (determined by state legislatures) and a requirement that both chambers must meet at least once a year. Section 5 essentially states that both chambers judge their own elections, determine their own rules, keep a journal of their proceedings, and determine for themselves how to punish members or expel them (the only requirement for expelling a member is two thirds consent of that chamber). Section 6 pertains to compensation for members, certain immunities from law, and a prohibition against holding any other government office simultaneously. Section 7 details the process by which a bill becomes law, including presenting this bill to the president to be signed into law and the process of a presidential veto and veto override.
Article I, Section 8 of the Constitution is one of the most important and contested sections of the document. In sum, it outlines what Congress can do, detailing its expressed (or specific) powers, with a clause at the end that indicate implied (not expressly detailed) powers. It begins with “Congress shall have the power To …” Every clause in this section begins with the word “To.” This phrase, “Congress shall have the power to” subsequently shows up in 5 of the 27 Amendments to direct Congress to specific powers. Even just a brief perusal of the expressed powers in Article I, Section 8 indicate a focus on the economy and national security—the first eight clauses are focused on money, commerce, and regulation, and the following nine clauses are basically focused on military matters and national security. Briefly, let’s identify a few essential clauses among these expressed powers:
- Article 1, Section 8, clause 1: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” This clause gives crucial taxation power to Congress. Taxation, of course, was a highly controversial issue in Colonial America, often seen as an oppressive weapon of the British Crown. Following the Revolutionary War, some newly independent American citizens argued that taxes were unnecessary in a truly free nation. The states, however, had a variety of poll and property taxes. For the first 100 years of independence, the federal government’s revenues came almost entirely from taxes on imports (tariffs) and excise taxes (from these instruments, the federal government derived significant revenue from the slave trade and the institution of slavery). It was not until the passage of the 16th Amendment in 1913 that the federal government could constitutionally levy income taxes on individuals and businesses. Lastly, this clause states that Congress has the power to “provide for the common Defence and general Welfare of the United States.” What does it mean for a legislature to provide for the general welfare? This is open to interpretation but over time this has been understood to give Congress sweeping powers to pass any law that provides for the general welfare—social security, minimum wage laws, federal insured banking (FDIC), and other social services provided by the federal government are all constitutionally protected under this phrase and the expressed power it provides Congress.
- Article 1, Section 8, clause 3: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This is known as the commerce clause and is a much contested element in the Constitution. How the government and the public interprets this clause goes a long way toward determining the extent to which the government can regulate the economy. What constitutes interstate commerce? A wide interpretation assumes wide powers to regulate markets and commerce; a narrow interpretation assumes limited powers to regulate markets and commerce. In the widest interpretation, even wheat grow and consumed exclusively on your farm effects market prices and is thus subject to government regulation (see the Supreme Court case Wickard v. Filburn from 1942). In the narrowest interpretation, only the distribution sector of the economy, in which goods physically travel across state lines, are open to federal government regulation.
- Article I, Section 8, clause 18: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This is the Necessary and Proper Clause, also known as the Implied Powers Clause, and it is one of the most contested an important clauses in the Constitution. Alexander Hamilton pointed to this clause to justify economic programs led by a very active government. Thomas Jefferson, despite his adherence to a limited government, was the first president to use this clause to justify government action (in his case the Louisiana Purchase). Over time, this clause has been used to justify a wide variety of congressional legislation. Broken down, this implied power is tied to the expressed powers above (“for carrying into Execution the foregoing Powers”). A broad interpretation of this clause gives sweeping powers to Congress to pass all laws which shall be necessary and proper to provide for the general welfare. A narrower reading of this clause may emphasize the word “necessary.” Indeed, Hamilton squabbled with Congress over the words necessary and proper in the 1790s. The emerging Democrat-Republican Jeffersonians argued that laws passed by Congress should be absolutely necessary and anything short of that was unconstitutional.
Article I is by far the longest article in the Constitution, and is rounded out with Sections 9 and 10. Section 9 pertains to what Congress cannot do and Section 10 lists what the states cannot do vis a vis Congress. This last section basically limits the states from levying their own import and export taxes, prohibits them from making war independently (except when in imminent danger, and, crucially, prohibits states from printing and coining their own money. This last prohibition was intended to curb the economic problems stemming from numerous state currencies that circulated in the years after independence.
Article II pertains to executive power, which is vested in a presidency and vice presidency. It details the Electoral College for selecting the president and vice president (details later refined in the 12th Amendment, which replaced the previous system in which the top two recipients of elector’s votes would be president and vice president respectively with a system in which a ticket of president and vice president ran together). Article II also details the presidential oath, gives power to the president to make foreign treaties and fill vacancies in the federal judiciary (both subject to Senate approval), and to be Commander in Chief of the military with the authority to execute war (but not declare war, which is a congressional power). Article II also compels the president to submit a State of the Union address to Congress (the word “may” was replaced with “shall” in this clause during the Constitutional Convention as the framers realized such an address should be a responsibility of the president, not a voluntary choice).
Article III pertains to judicial power, which is vested in a Supreme Court and inferior courts as established by Congress. This article details the jurisdictional power of the federal judiciary. Crucially, however, Article III says nothing about the Supreme Court’s most important power today, to review the constitutionality of law (known as Judicial Review). That power was acquired by Chief Justice John Marshall in his masterful majority opinion in Marbury v. Madison (1803). Judicial Review in a common law system gives the Supreme Court tremendous power to shape law in the United States. Strong free speech, privacy, and gun rights, along with the right to abortion and gay marriage, are all direct consequences of the Supreme Court’s power of Judicial Review.
In overviewing Articles I, II, and III, it should be apparent just how long and detailed congressional power is relative to the executive and courts. This difference may have effected the historical development of these institutions in such a way as to gradual limit congressional power at the expense of growing executive and judicial power. Congress was by most accounts much more powerful that the president or federal judiciary in the early American republic. Over time, however, executive power expanded, particularly beginning in the 20th century. An example here are war powers—the United States have not fought a war that went through the traditional constitutional process of initial congressional war declaration since arguably the Korean War. Likewise, the federal judiciary, once regarded as the “weakest branch” of the federal government tree, now reigns supreme—the public today has a much higher approval rating of the Supreme Court than Congress or the president, and its ability to make law the moment a decision in a case is made far surpasses the slow, complicated process of law making in Congress. Reflect theoretically on this comparison between Article I, on the one hand, and Articles II and III on the other. The broader theoretical lesson may be that powers well defined are more easily circumscribed, whereas powers vaguely defined lack certain boundaries to that power. The vagueness, in other words, of Articles II and III may well explain why these branches of government have grown so substantially.
The last four articles pertain to state powers, amendment process, supremacy clause, and ratification of the Constitution itself. Article IV on the states defines much of the relationship between states and the federal government. It requires that states give “full faith and credit” to public acts, records, and judicial proceedings of the other states, and protects the fundamental rights of citizens across states (a state cannot violate the fundamental rights of out-of-state citizens). Section 3 of Article IV gives the power to form new states to Congress and details the process by which a new state may be formed from two existing states. Lastly, Article IV guarantees every state a republican form of government. This clause has been contested a few times in history (is this a right to or a requirement for a republican form of government? If a state does not have a republican form of government, is that unconstitutional?). This is the only instance in which the Constitution refers directly to a republican form of government and is one example in which the Constitution affirms some form of democratic principles (see Democracies vs. Republics from Chapter 3). The phrase “We the People” from the preamble and a “Republican Form of Government” in Article IV, Section 4 are the most prominent examples in which the Constitution indicates eludes to a democracy.
Article V details the process for amending the Constitution, and indicates there are two routes to do so: the state convention route, in which states hold Constitutional Conventions (with a three-fourths majority of states needed), or the congressional route, in which two-thirds of both houses pass the proposed amendment (three-fourths of state legislatures must also pass the amendment in this route). There is no provision in the Constitution that cannot be amended. Indeed, if one were to draft a 28th Amendment that read in part: “The current Constitution and its amendments are hereby null and void. The new Constitution will read as follows: Article I…” The ability to amend the Constitution is arguably one of its most important and far-reaching features, allowing a process for the Constitution to respond to historic changes and developments in the country. Slavery was abolished, women received the right to vote, all citizens enjoy equal protect under the laws and due process rights (against both federal and state governments), members of the Senate are elected directly in statewide elections—these are a few of the historic political changes brought about the Constitutional amendments. There is, however, one provision in the Constitution that is nearly impossible to amend. Article V states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” This effectively means that an amendment to change equal representation in the Senate (2 senators per state) must be unanimously affirmed by state legislatures, a highly likely event given that states with smaller populations would lose substantial amount of power in Washington.
Article VI has three main components, though arguably the most important is the Supremacy Clause—where federal and state laws conflict, federal law “shall be the supreme law of the land.” Take the issue of recreational marijuana, for example. Several states has legalized recreational marijuana (Washington, Colorado, Oregon, California, among others) but that federal government still classifies marijuana as an illegal, Schedule 1 (the highest level of narcotic illegality) drug. If the federal government were to press the matter in courts, the Constitution indicates they could force states to rescind the legalization of marijuana. The last article of the Constitution, Article VII, details the process for ratifying this Constitution in effect. This article was historically relevant during the contentious process in which states ratified the document in the 1790s, but is of course a lot less relevant today, although secessionist movements (movements advocating that a particular state succeed from the Union) from time to time evoke Article VII in claiming that a state could rescind its ratification.
The Bill of Rights and Subsequent Amendments
As previously mentioned, the Constitution was a controversial document at the conclusion of the Constitutional Convention in 1787. A protracted and vociferous political battle broke out among the Federalists (who supported the document) and Anti-Federalists (who felt the document gave too much centralized power to a federal government at the expense of states). Some Anti-Federalists called for a Bill of Rights to be immediately amended to the seven articles, rights that protected states and citizens from federal government action. England had a Bill of Rights at this time, as did most state constitutions. Madison, one of the main authors of the Constitution, was initially wary and lodged two complaints:
(a) that a bill of rights would circumscribe and put boundaries on the rights citizens hold, thus limiting rights to only what is enumerated; and (b) that a bill of rights would be “mere parchment barriers,” paper protections that government can easily violate.
But the political winds were shifting in favor of amendments that affirmed key fundamental rights, and Madison quickly signed on, becoming one of the principal forces shaping the first ten amendments to the Constitution.
If you are a citizen of the United States, one of the most important things to know about American politics is the Bill of Rights. Even for non-citizens residing (or simply visiting) the United States, the Bill of Rights enumerates crucial protections against government action. Whether you are a German tourist in America or an undocumented person from Cuba residing in America, equal protection and due process rights are afforded to you no less equally than to citizens. When the Constitutions uses the words “citizen,” “persons,” or “people,” it does so for specific reasons. “Citizen” limits the scope to those formally part of the national community, “persons” refers to all individuals regardless of political status, and “people” generally refers to the public and collective political community essential to a republican form of government. Equal protection and due process rights are therefore afforded to all persons within US legal jurisdiction because the 5th and 14th Amendments explicitly state so.
We can organize the first ten amendments in a way that makes it easier understand and remember them. The first 8 amendments correspond to which branch of government is principally restrained by those rights. Look at the language of the First Amendment: “Congress shall make no law…” This is an explicit recognition that the government action most likely to violate your free speech, religious establishment, or assembly rights would be Congress passing a law to that effect. This does not mean, obviously, that a president or federal court is unable to unconstitutionally violate those rights (they can), or that, if they did, it would be constitutional. This is an example of how a strict, literal reading of the Constitution does not carry much weight. Nonetheless, the First and Second Amendments are principally directed at protecting rights against congressional law making. The Third and Fourth Amendments—protection against quartering soldiers in the Third and a warrant requirement and protection against unreasonable searches and seizures in the Fourth—are principally focused on executive action, specifically military and police actions that may violate individual rights. Amendments 5, 6, 7, and 8 all pertain to judicial or court actions—right to a speedy and public trial by your peers, right against self-incrimination, prohibition on being tried for the same crime twice (double jeopardy clause), equal protection under the laws and due process right (that an individual’s life, liberty, or property cannot be taken without due process of law), right to compensation for seizures of private property, and prohibition against cruel and unusual punishment are among the crucial rights afforded someone accused or convicted of a crime, or engaged in a civil suit.
The Ninth and Tenth Amendments are a little different than the above, focusing less on limitations of federal government. The Ninth Amendment states that the enumeration of rights in the Constitution should not be taken to “deny or disparage others retained by the people. This sweeping, almost philosophical amendment is a clear assertion that the government does not know all the rights individuals have—we have broad, fundamental individual rights (“penumbras and emanations,” in the words of Supreme Court Justice William O. Douglas) that are not given to us by government, but are endowed to us by simply being human. This amendment has a sort of meta-quality to it: it is text that cautions us to not take text as definitive and exhausting. These rights are referred to as non-enumerated rights—individual rights that are not written down. A right to marry and to have children, a right to the expectation of privacy, a right to be treated by government with dignity and respect, these are all non-enumerated rights the courts have long considered constitutionally protected. Privacy, for example, has long been considered by the courts to be constitutionally protected, a right that fundamentally underpins other, enumerated rights, such as assembly in the First Amendment (what good is your right to assemble for political purposes if government can spy on your proceedings and discussions?) or the Fourth Amendment (unreasonable search and seizure protection implies that you have a privacy right over your person, house, papers, and effects). Lastly, the Tenth Amendment states that powers not granted to the federal government in the Constitution are reserved “to the States, respectively, or to the People.” This amendment indicates general powers of government reside with the states and that federal government powers are more limited by the Constitution. Modern conservatives wary of the sweeping, broad interpretations of the Necessary and Proper Clause of Article I, Section 8 make take some measure of comfort in the Tenth Amendment, which can be interpreted in such a way as to narrow centralized federal power and strengthen state power.
There are 17 subsequent amendments to the Constitution. One can organize these 17 amendments in historical clusters: 11 and 12th are early procedural amendments focused on correcting some early perceived flaws in the Constitution (suits between a state and a person from another state and the Electoral College). 13, 14 and 15 are Civil War Amendments intended to end slavery forever, give civil rights to all Americans, and give political rights to African American men, respectively. 16, 17, 18, and 19 are influenced by the Progressive Era legacy that sought to democratize and energize government to be more responsive to the people (the 16th authorizes an income tax, the 17th calls for direct elections for senators, the 18th prohibits alcohol, and the 19th realizes women’s suffrage). The 20th Amendment sought to clarify the terms of president, vice president, and Congress so as to make for a smoother transition of power. The 21st is the only amendment that repealed a prior one—it repealed the 18th Amendment’s prohibition of alcohol, bringing legal liquor back into American life (you can remember this one by recalling that an individual must be 21 years of age to legally drink in the US). The 22nd Amendment limits presidential terms to two (8 years total) in response to Franklin Delano Roosevelt’s 12-year long hold on the presidency. The 23rd gives presidential electors to the District of Columbia, a response to the growing importance of the city in American society. The 24th Amendment repeals all forms of poll taxes (a tax on voting) for federal elections and was, in part, a response to the demands of a growing Civil Rights movement that sought justice and equality for non-white Americans. The 25th Amendment was in direct response to the assassination of John F. Kennedy on November 22nd, 1963, and clarified the lines of succession for a presidential vacancy and the process government could take in lieu of presidential disability or inability. The 26th Amendment was a direct response to the Vietnam War, in which tens of thousands of American men below the age of 21 were drafted in the war but could not vote; by this amendment the voting age was set to 18 years of age at the time of the election.
The 27th Amendment, adopted in 1992, has the most curious and unusual history of all the amendments. First proposed in 1789 along with 11 other amendments (the ten adopted would of course become the Bill of Rights) the amendment states that pay raises Congress authorizes for its members cannot go into effect until after their next election. This amendment was not ratified by the requisite number of states at the time and was subsequently relegated to the dust bin of history. Then, in 1982, a sophomore student at the University of Texas-Austin named Gregory Watson wrote a paper for a political science course in which he argued that the amendment should be ratified. He received a C grade for the paper and, perhaps in response to a disappointing grade, would not let the matter rest. Watson began writing letters to state legislatures and petitioning for the amendment. What began as a snowball accelerated into an avalanche and within ten years the 27th Amendment was adopted. In 2017, 35 years after getting a C, Watson’s grade was changed to an A.
Every American, “We, the People,” are all party to the Constitution. The Constitution speaks to us all. Moreover, every citizen has a valid claim to interpreting the foundational text upon which government is erected. The story of the 27th Amendment indicates that every citizen—even a C student in a political science class!—has the ability to change the oldest surviving constitution in the world. Now that we have done a brief overview of constitutional law and the Constitution, let’s take a look at another body of public law: criminal law.
Why do we need criminal law?
The first task of substantive criminal law is to determine what wrongful acts are criminal in nature. Not all wrongful acts are crimes. What distinguishes criminal offenses from other wrongful acts? As a hypothetical example, imagine you are at a softball game and someone is doing practice swings with a bat. Another person is behind them, does not notice the bat, and his accidentally hit on the head. Now imagine another scenario at the softball game in which, during an argument, someone swings a bat and hits the other person in the head. The first scenario is not a criminal act—the person who was struck accidentally may bring a civil personal injury suit and seek monetary compensation for medical bills or lost time at work, etc. In the second scenario, the person who swung the bat did so with intent and is therefore culpable of a criminal act. There are two components to a crime: actus reus, the criminal act itself; and mens rea, a state of mind in which intent to commit a criminal act is present. In other words, a criminal act must always have a corresponding state of mind that is voluntary and intentional to be considered a criminal act.
The basic differences between criminal and civil law are: (1) criminal law pertains to an injury to the public, whereas civil law pertains to a private injury or wrongdoing; (2) criminal law is prosecuted by the government, whereas civil law requires a private party (plaintiff) bringing a suit against another private party (defendant); (3) in criminal law, an attorney is provided to the defendant if they cannot afford one, whereas in civil law both plaintiff and defendant must provide their own attorneys; (4) in a criminal trial the burden of proof is beyond a reasonable doubt (near certainty the defendant committed the crime), whereas in a civil trial the burden of proof is a preponderance of evidence (more likely than not); (5) lastly, the penalties in criminal law may include loss of liberty or, where the criminal jurisdiction includes capital punishment, loss of life, whereas in civil law penalties are typically monetary.
At its most basic level, criminal law requires punishment of those who committed an intentional and voluntary wrongful act, not just remedy, restitution, or relief to an injured or wronged party. Why do we need punishment? There are two main justifications for why we should punish intentional and voluntary wrongful doing: utilitarian and retributivist. Utilitarianism is the theory that society should be organized so as to bring the great good to the greatest amount of people. In the utilitarian view of criminal law, punishment promotes the greatest good because it acts as a deterrence in a number of ways: it deters criminals from future acts (individual deterrence), and it deters individuals in society from committing such acts (general deterrence) since the punishment is public (society is warned that if individuals commit similar acts in the future, they too will be punished). Criminals may also be forced to rehabilitate and essentially reform their ways to be law-abiding and productive citizens, and this too is useful to society. Lastly, punishment also acts as a public denunciation of crime, and this public statement of wrongdoing sends a message that we live in a fair and just society.
The retributivist view suggests that we need punishment because criminal acts are morally wrong and justice is demanded for crimes that are committed. In short, the retributivist view justifies criminal punishment because punishment serves justice. It is not particularly important in the retributivist view that punishment is useful—criminals deserve to be punished on the basis of the crimes committed, whether it is useful or not to society. The public demands retribution. In a sense, it is not deterrence the retributivist justification seeks, but justice. The retributivist view may help deterrence, however, since a strong sense of justice in criminal law may encourage individuals to view their society as just and may therefore be more inclined to obey the law. On the other hand, the retributivist view can keep deterrence in check by keeping deterrence in line with justice. We might punish petty theft by cutting off the hands of the offender, for example. This brutal and harsh punishment might serve as a very strong deterrent (only the extremely desperate would risk committing the crime), but the retributivist view of criminal law would regard such harsh punishment as unjust in itself.
As mentioned above, for a wrongful act to be considered criminal there must be culpability—an individual must have some mental state of intent and voluntariness to commit a crime. There are four main levels of intent in the US Criminal Code: negligence (the lowest level of intent), recklessness, knowing, and purposeful (the highest level of intent). Someone is negligent when they should have been aware of a substantial or unjustifiable risk, but was not. Someone is reckless when they are aware of a substantial and unjustifiable risk but did it anyway. Someone is knowingly culpable when they are practically certain a criminal result will occur. Someone is purposefully committing a crime when they consciously intend to bring about the criminal result. Punishment is typically most severe for purposeful intent, punishment for knowing intent less severe for purposeful, reckless intent less than knowing, and negligent intent less than reckless.
Lets use an example of one criminal act in which the results are the same but the level of intent is not: a father leaves his baby in a hot car during a summer day, resulting in the death of the child.
The father is negligent if he were simply unaware of the risk but should’ve been—perhaps the father did not usually bring the baby to childcare on his way to work, but in this instance was supposed to, and simply forgot the child was in the car, never went to the daycare, and did not look in the backseat of the car when he arrived at work. The public punishment for this crime will typically be less severe since the trauma and turmoil of the loss of life serves its own punishment upon the father. But let’s say the father drank alcohol to the point of being slightly drunk and forgetful before getting in his car. This is reckless intent—he was no doubt aware he was taking a substantial and unjustifiable risk, but did so anyway, drove past the daycare, and went to work forgetting about the baby in the backseat. The punishment for this crime will typically be more severe than if he had negligent intent. Let’s say the father knowingly left the baby in the car—perhaps he stopped at a gas station to buy some snacks on his way to work and left the baby in the car. He knows what he is doing but he may have justified it in a number of ways, thinking he would simply dash in and out and the baby would be fine. Maybe he cracked a window thinking that would suffice. Nonetheless, the father in this instance knowingly committed a crime, and thus the punishment will typically be more severe than if he were negligent or reckless.
Lastly, consider the case of a father from the state of Georgia named Justin Ross Harris. Harris went to work one morning with his 2-year old son in the backseat. Forgetting to bring the child to daycare and failing to check the back seat, Harris arrived at his place of employment and worked all day. After the work day was completed, Harris returned to his car to find his son dead in the back seat. He showed remorse for the incident and maintained it was an accident. But when police detectives investigate the incident and circumstances surrounding it, they discover that Harris had been having affairs with other women and expressed a desire to get out of his marriage and family. Further, detectives discovered that Harris had made Google searches about children dying in hot cars and several days before the incident had watched a video online about pets dying in hot cars. Harris did not forget to bring his child to daycare—he purposefully left the child in the car with conscious intent to bring about the result of death. Harris was charged and convicted of first-degree murder with malice aforethought and was sentenced to life in prison. This example illustrates the levels of intent in criminal law.
The relationship between the US Constitution and criminal law is an important one because half of the rights enumerated in the Bill of Rights pertain to criminal process. Individual rights involving criminal conduct directly shape the contours of criminal law. The state can deprive criminals of life, liberty, or property, but must do so following due process procedures in arresting, charged, convicting, and sentencing the criminal. The criminal process, however, remains largely the purview of state and local laws—how police officers interact with the public, the process for handling domestic disputes, interrogations, prosecutorial practices for dealing with minor offenses, bail, plea bargaining, etc.—all these matters are generally shaped by local law enforcement, local attorneys, and local courts.
This chapter provides an overview of public law, the body of law that governs the relationship between government and private entities. We began with the distinction between common law legal systems and civil law legal systems. In a common law system, both statutory and judge-made law are in effect and legal decisions rely on the precedent of past cases. In a civil law system, on the other hand, legal decisions are rendered by interpreting codified statutory law—past cases may be helpful but are not binding. The common law is an anglo tradition typically found in legal systems historically influenced by the English legal tradition.
Constitutional law is a significant area of public law that governs the foundations of government, powers of government, and the rights of individuals in relation to government power. American constitutional law is an important area of study for political science and understanding the basic features of the US Constitution is essential for all political science majors in American higher education. To this end, this chapter provides some useful tools gaining knowledge of the 7 articles and 27 amendments of the US Constitution.
Lastly, this chapter briefly covers some essential details of another important facet of public law: criminal law. Criminal law is unique in that it requires a corresponding frame of mind (mens rea) to the wrongful act (actus reus) and thus requires punishment for the wrong doer, not just remedy for those who are wronged. There are two broad justifications for why we need criminal law: utilitarian (criminal law is useful to society because it deters) and retributivist (criminal law is justified because punishing criminal acts serves justice). Lastly, we covered four broad levels of intent in committing a crime: negligence, recklessness, knowingness, and purposefulness.
In the next chapter, we consider the theories and values of democracy, how democratization develops, and justifications for democratic governance.
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Criminal Law, University of Minnesota, OER Textbook, 2015: https://open.lib.umn.edu/criminallaw/ (accessed on August 9, 2019) ↵