The history of law in the USA

The system of law in the USA originates in the American Constitution that was established in 1787. The Constitution was created by the ‘Founding Fathers’, a group of prominent dignitaries from the fledgling United States, a new entity that had recently freed itself from British imperial rule. A key motive of these early American leaders was to establish a political and legal system which could make law in the USA free from external (British) influence. The Constitution was officially ratified in 1789 and it remains a major source of political and legal authority to the present day, forming the fundamental basis of the American legal system and shaping law in the USA for over 200 years. The Victorian British Prime Minister W.E Gladstone described it as “the most wonderful work ever struck off at a given time by the brain and purpose of man”.

The US Constitution established a system of law and political rule that revolved around the principle of the ‘separation of powers’, a concept heavily influenced by the 17th century political philosopher John Locke. The system of law in the USA therefore originates from a deliberately fragmented ‘federal’ structure where three separate branches of government- the executive, the legislature and the judiciary, each seek to determine and influence legislation. However, no branch can formally get involved or ‘overlap’ its powers into that of another branch of government when determining law in the USA. For example, the President is not a member of Congress while the Supreme Court does not legislate or create law, it instead interprets law in the USA. The USA’s constitutional authors were determined that the political system used to create law in the USA would not be as centralised and as tyrannical as the British monarchy that had previously ruled their territories.

The source of political and legal power was therefore split three ways:

• The executive body is the President and his cabinet
• The legislative body is Congress, consisting of the more powerful Senate and also the House of Representatives
• The judicial body is the Supreme Court.

Each of these bodies has a direct influence on the shape and flavour of law in the USA. The President is ostensibly the most powerful of the three branches as this is the only position elected in its own individual right by the wider nation as a whole. The holder of this office therefore has a major role to play in formulating and proposing law in the USA, and this individual can often initiate momentous decisions like taking the country to war. In recent years, particularly since the 1960s, concerns have been raised that the President has been exceeding the powers that the constitution and law in the USA have established for this role. The historian Arthur M. Schlesinger Jr. coined the phrase ‘The Imperial Presidency’ in the 1970s to reflect this executive trend. Despite such great power being vested in one individual and a relatively subservient cabinet, the ‘Founding Fathers’ were careful to prevent the abuse of power and sought to develop a system of ‘checks and balances’. This subsequently ensures that no one body or individual can accumulate excessive power in this political and legal process. Subsequently, both of the other branches of government can influence law in the USA in significant ways. Bills and proposed legislation can also originate in either chambers of Congress, and any executive proposals that emanate from the President can be rejected by Congress if a two-thirds majority can be reached in both chambers. Both chambers are elected, with the 100 Senators serving six years and the 435 Congressmen serving two. Congress was originally supposed to be the primary institution in the federal system of government where most of the key laws in the USA were made, but over the years it has been transcended in importance and power by the Presidency.

Legislation can be also challenged by the Supreme Court via the process of judicial review, which ultimately rules whether a proposed law is in line with the principles of the American Constitution. For example, it was the Supreme Court that ultimately decided on the legality of abortion in the USA in the landmark ruling of Roe vs. Wade in 1973. Therefore, specific law in the USA is created, reviewed and influenced by various different sources.

The Supreme Court consists of nine judges who are appointed by the President and ratified by the Senate. They can often hold the position for life and as individuals and as part of a body, they are ultimately extremely influential within the American system of government. Its judicial role goes to the heart of the interpretation of law in the USA. As well as its controversial ruling on abortion, the Supreme Court has passed judgments over the years that have affected fundamental aspects of the American political and legal system and therefore shaped overall law in the USA. In 1974, the Supreme Court’s ruling in USA vs. Nixon played a crucial role in forcing President Richard Nixon to resign from office following the Watergate Scandal, the only holder of this office to have done so.

The Court also made a crucial ruling in Bush vs. Gore (2000) which effectively decided the outcome of the knife-edge presidential campaign between George W. Bush and Al Gore, a ruling with the most fundamental impact on government and law in the USA. The American Constitution is codified in a single document and is difficult to change. Constitutional amendments require explicit Presidential support, a two-thirds majority in both houses of Congress as well as in three quarters of the 50 state legislatures. Such coalitions of support are difficult to achieve and this ensures that important principles of law in the USA, along with fundamental rights and civil liberties of the American people are enshrined and protected. There have only been 27 amendments to the US Constitution since its formulation, and ten of these occurred soon after its creation and are known as ‘The Bill of Rights’ (1791), which outline basic individual liberties. Fundamental law in the USA is therefore established and protected by a process and system that has stood the test of time since the late 18th century.