THE PRINCIPLE OF SEPARATION OF POWERS IN THE UNITED STATES LEGAL SYSTEM

Schroeder, Outline of United States Government, Office of International Information Programs, U.S Department of State, 2000, p.. Schroeder, Outline of United States Government, Office o

FUNDAMENTALS OF THE UNITED STATES LEGAL

The founding history of the United States

The United States has long been viewed as a land of opportunity that draws people from around the world, each pursuing a different path but sharing the belief that it offers a better life The country’s humane social security system, its government-supported public education, and a health care system with a budget larger than that of many other nations contribute to this attraction Collectively, these factors reinforce the view of America as a land of paradise for those seeking a promising future.

From a population of about 250,000 in 1690, the United States has grown into a global economic superpower by the 20th and 21st centuries, a status it continues to sustain This remarkable ascent can be partly explained by the United States’ founding framework and enduring political and economic institutions that foster growth and innovation Even as debates over the legal and constitutional foundations continue, these core principles help explain the nation’s sustained economic power.

8 Douglas K Stevenson, American Life and Institutions, Bureau of Educational and Cultural Affairs, United States Department of State, Washington District Columbia 20547, p.10

9 Bureau of International Information Programs, Outline of United States History, U.S Department of State,

12 system of America came from the common law 10 , Americans are proud of their sustainable Constitution

The United States Constitution, with its seven articles, sets out the core issues every federal state must face and highlights the distinctive features of American federalism; through these articles and the subsequent amendments, it defines the division of powers between the federal government and the states This work does not aim to reconstruct a complete history of the United States or explain its political or economic system, but rather to show how the formation and nature of the separation of powers arise from the founding context and shape the modern American legal framework.

Every legal system develops with its own distinctive characteristics, and examining the nature of its legislation is essential to identify the factors that shape its formation The British legal system arose from the Norman conquest and subsequent reforms in administration, military, and judiciary aimed at unifying the nation and its laws French law, by contrast, is the product of the bourgeois revolution and the continuation of the pre-revolutionary legal tradition, marking a transition period in its evolution For the United States, understanding the law’s nature goes hand in hand with studying its constitutional framework and historical development that underpin its distinct legal order.

Common law can be understood in three senses: first, the law laid down by the courts rather than by legislatures; second, the body of rules applied by the common law courts, distinct from the equity or admiralty jurisdictions; and third, the description of this country as a "common law" nation whose legal framework is based on English law rather than a "civil law" tradition derived from Roman law This third sense is the one used in this dissertation.

11 The United States regime will be explored in the later chapter

An analysis of the United States’ foundations shows that European immigration—especially from Britain—was the most influential factor shaping the nation’s population Understanding this history explains why the character of the American people and the U.S legal system differ so markedly from England, despite the fact that U.S law is largely derived from English law.

1.1.1 The immigration from Britain and the foundation of the United States

The ancestors of the United States include not only the British settlers who founded Jamestown in 1607 but also the peoples who crossed into North America from Asia around 30,000 BCE After arriving in Alaska, these early populations gradually moved south, threading their way through openings in massive glaciers to populate what would become the United States A clear understanding of the American legal system begins with how these separate colonies were welded into a single nation under a durable Constitution, a framework built on seven articles and twenty-seven amendments that has withstood centuries of diversity and change from 1789 to today.

The earliest Europeans with solid evidence to reach North America were the Norse The broader European exploration and migration to the Americas began when Portuguese explorers opened new routes, with involvement from Portugal, Spain, Sweden, the Netherlands, and France, and was largely driven by the pursuit of valuable resources such as gold and silver.

12 Bureau of International Information Programs , Outline of United States History, U.S Department of State,

13 Smithsonian Institution , Peopling of Americas, National Museum of Natural History, 2004

14 H S Commager, Documents of American History, 7 th Edition, 1963, p.7

German, Scottish, and Northern Irish immigrants, along with enslaved Africans who were forcibly brought to North America, helped populate the continent and shape its early society English emigration began later, with the first settlements established in the early 17th century The English colonists’ migration to North America played a decisive role in the birth of the United States and its legal system.

Migration to America from various countries differed in timing, purpose, and migrant composition, and these factors directly influenced the origins and character of early United States society Among European sources, Britain played the most influential role in founding the United States, as 17th‑century political, economic, and legal conditions pushed British immigrants to seek new settlements in America Immigrants from other European nations arrived earlier to exploit the abundant natural resources of this fertile land, while the British viewed North America as a new home and actively built the infrastructure needed for permanent settlement The British immigrant population was diverse, including merchants, artisans, plantation owners, small farmers, pioneers, slaves, servants, and prisoners, though the core often came from the middle class—farmers, tradespeople, mechanics, sailors, shipwrights, weavers, carpenters, and others Many European migrants crossed the Atlantic to earn a living, to escape political oppression or religious persecution, to avoid rigid economic patterns of the Old World, or simply to pursue opportunities beyond what was available at home.

15 Due to a huge geographical isolation, approximately 5580 kilometers (about 3460 miles), more than halfway around the world Also, there is Atlantic Ocean separates two countries

15 residents in particular immigrated to America to flee from the autocraticule of King Charles I 16

Although immigrants came from varying socioeconomic backgrounds, pursued different settlement goals, and held diverse religious beliefs, they shared one overarching desire: freedom They sought a new legal framework and hoped to escape English common law This shared impulse helps explain why the United States has roots in England but diverges significantly in its law and institutions Unlike some colonial policies of other eras, migration from the United Kingdom was not directly government-backed; private groups—most notably the Virginia Company and the Massachusetts Bay Company—driven by profit played central roles Yet the British Crown's claim of sovereignty over North America helped propel migration, and once in the land, the British established settlements or displaced existing populations through force Between 1610 and 1776, about 50,000 English prisoners were transported to the colonies; authorities sometimes offered convicts a chance to emigrate to places like Georgia instead of serving prison sentences, though most could not afford the cost of passage for themselves and their families.

16 D Flaherty, Essays in the History of Early American Law, ed 1969, Lanham, Maryland: Rowman and Littlefield, p 28

During this period, English common law grew increasingly draconian In civil matters, case law regulated the social relations of the emerging capitalist system mainly through compensation, while additional financial instruments were used to force contract performance In criminal law, British authorities exiled prisoners to North America, a policy that provoked indignation across the country.

18 In 1664, the British driven the Dutch out of New Netherland New proprietary colonies were established in New York, New Jersey, Delaware, and Pennsylvania Bureau of International Information Programs, Outline of United States History, U.S Department of State, 2005, p.17

There were two main ways that they could achieve their dreams: they could either sign a contract to work as a servant to the captain of the ship or sign a contract with the Virginia or Massachusetts Bay Companies, committing to work for them in a period of four to seven years with the promise of freedom and in some cases, a small piece of land upon expiry date The diversity of immigrants created the fear of the dominance of one group over another Americans always sought to prevent this situation This is one of the premises that shaped the system of checks and balances in the United States and it is completely different from the doctrine of British and French governments Despite initial difficulties, the exodus remained continuously 19

By 1690 the American population stood at about 250,000 From then on, it doubled roughly every 25 years, and by 1775 it numbered more than 2.5 million This growth, driven by diverse motives for settler immigration, culminated in the establishment of thirteen British colonies along the Atlantic coast.

1.1.4 Drafting and ratifying context of the Constitution of the United States 22 1.2 Features of the United States legal system

Conclusion

Today the influence of English law on the American legal system is minimal, having virtually ended by the Civil War Modern American courts rarely cite recent English decisions, and questions that hinge on the reception of English law are infrequent Nevertheless, the core approach of the common law, its essential vocabulary, and many of its fundamental principles and concepts remain familiar in the United States.

70 Richard C Schroeder, Outline of United States Government, Office of International Information Programs, U.S Department of State, 2000, p.8

English case law, though relatively small in numbers, remains part of the taught tradition in American law schools Meanwhile, the United States preserves a sense of continuity through core values traceable to its founding From its origins as a cluster of obscure colonies along the Atlantic seaboard, the United States has undergone a remarkable transformation into what Ben Wattenberg called “the first universal nation”—a population of nearly 300 million representing virtually every nationality and ethnic group on the globe The nation also experiences ongoing, rapid change across economic, technological, cultural, demographic, and social dimensions.

Chapter 1 of this dissertation introduces the fundamentals of the United States legal system and provides an overview of the nation’s constitutional foundations and the characteristics that shape its legal framework, helping readers understand why the United States adopts the principle of separation of powers The separation of powers, enshrined in the Constitution, plays a central role in the U.S legal system by dividing authority between the federal and state governments and by shaping the limits on each branch’s legislative, executive, and judicial powers Chapter 2 will examine this principle in greater detail.

71 E Allan Farnsworth, Introduction to The Legal System of The United States, Oceana Publications, Inc., p.11

72 Bureau of International Information Programs, Outline of United States History, U.S Department of State,

THE PRINCIPLE OF LIMITING THE LEGAL

The basic division of the legal power between the states and the

In the United States, the Constitution is the supreme law of the land, and no legislation, subordinate regulation, or federal or state judicial precedent may conflict with it It divides government into three branches—the legislature, the executive, and the judiciary—within a framework of separation of powers and checks and balances The federal–state relationship follows the principle of federalism, where state authorities are primary and the federal government has limited, enumerated powers that are exceptional rather than general.

2.1.1 The organic power of the states

2.1.1.1 Legislative power Legislative power of every state can be understood as the right to make law, occurred from the social relationships When researching a legal system of a country operating under a common law system like the United States,

Under the Tenth Amendment, the legal foundation for federalism holds that the powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States or to the people The federal government’s enumerated powers are listed in Article I, Section 8, while the powers prohibited to the states are set out in Article I, Section 10.

39 legislative power does not relate to issues The latter is also considered one of main law sources in the United States legal system

State governments wield what is often called the organic power—the legislative authority that cannot be separated from the states themselves—because most daily rules affecting citizens are created at the state level rather than by the federal government Each state keeps its own constitution and laws, with its legislature empowered to regulate key social relationships in areas such as Contract Law, Enterprise Law, Family Law, Inheritance Law, Property/Asset Law, Criminal Law, and remedies for breach of contract This independence has been recognized and promoted by the U.S Constitution since 1787, and states have the power to issue and enforce laws, collect taxes, and administer governance with limited federal interference Historically, geography and local traditions have fostered self-governance on each state’s land, supporting broad state autonomy Although federal and state systems develop in parallel and sometimes overlap, states remain largely free to exercise their powers, ensuring that substantial governance occurs at the state level and daily life is shaped by state law.

74 Organic (adjective): consisting of different parts that are all connected to each other Oxford Advanced Learner‟s Dictionary, 7 th ed

75 Return to Chapter I, part 1.1 The founding history of the United States

76 Alan B Morrison (chủ biên), Những vấn đề cơ bản về luật pháp Mỹ, nhà xuất bản Chính trị quốc gia,

40 not prohibited to them In order to restrict state government powers, the restrictions must be spelled out in the state‟s constitution 77

Under the principle of federal residual authority, states can regulate in areas where the federal government has not fully exercised its power, serving a gap-filling role when Congress does not issue comprehensive regulations State authority is permitted to supplement or complete federal law, provided that state rules do not conflict with the federal framework and existing federal regulations A common example is environmental law, where the federal government sets minimum national standards and the Environmental Protection Agency enforces them, while states and local governments can implement their own programs aligned with those standards The key constraint is that state regulations must operate within the legal frame established by the federation and cannot contradict federal law, a balance that allows states to detail regulations and tailor programs within the broad federal objectives In this system, states and local governments share responsibility for applying and administering nationwide programs, contributing to a cohesive regulatory landscape that respects both federal supremacy and state initiative.

77 Viện nghiên cứu Giáo dục Quốc tế, Đôi nét về nước Mỹ: Chính quyền Mỹ hoạt động như thế nào, nhà xuất bản Từ điển Bách khoa, 2007, p 48

78 Réne David, Những hệ thống pháp luật chính trong thế giới đương đại, nhà xuất bản TP.HCM, 2003, p

Environmental law in the United States is a complex system that includes federal, state, and local laws, regulations, administrative decisions, and court verdicts While federal law governs much of national environmental policy, states retain authority in areas not expressly addressed by federal legislation, provided their regulations do not conflict with the U.S Constitution and do not impede interstate commerce The Supremacy Clause (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties are the supreme law of the land, binding judges in every state, with state laws that conflict being preempted Consequently, when states enact regulations under their residual powers, they must carefully ensure compatibility with the Constitution and federal law, or their regulations may be invalidated in the future.

79 Alan B Morrison (chủ biên), Những vấn đề cơ bản về luật pháp Mỹ, nhà xuất bản Chính trị quốc gia,

Beyond the organic authority of states, this article likewise examines the judicial power of states Court verdicts are regarded as a distinct category of legal sources in the United States, shaping interpretation and practice across the legal landscape These rulings carry significant influence with U.S lawyers, often more prominent than codified written law sources In light of this prominence, studying the judicial power and its decisions provides a valuable perspective on how law operates in the United States.

State judicial power is largely exercised at the state level, with most authority residing in the states and the legislative framework mirroring that structure Federal jurisdiction only arises when the United States Constitution explicitly designates it, in which case the case may be brought to a federal court If a matter falls outside constitutional assignment, litigation typically begins at the lowest state court and may progress upward, potentially ending at the state's supreme court.

The state court system has jurisdiction over most civil cases between parties in the same state, criminal cases involving violations of state or local law, family law matters, and issues related to the state constitution Therefore, the National Center for State Courts’ annual statistics on state court caseloads often underscore the central role of the state courts in the judiciary The majority of the national judiciary’s workload is carried by state courts, highlighting their importance in the legal system.

80 Mullenix, Linda S., Martin Redish, and Georgene Vairo, Understanding Federal Courts and Jurisdiction, New York, NY: Mathew Bender, 1998, p 183

81 Woll Peter, American Government: Readings and Cases, 13 th ed., New York, New York: Longman, 1999, p 37

82 Administrative Office of the United States Courts, United States Courts: Their Jurisdiction and Work,

83 Fallon, Richard H., Hart, Henry Melvin, and Wechsler, Herbert, Hart and Wechsler’s the Federal Courts and the Federal System, 5 th ed., New York, NY: Foundation Press, 2003, p 28

84 Bureau of International Information Programs, Outline of the United States legal system, U.S Department of State, 2001, p 55

State courts handle the vast majority of trials in the United States, operating at the state level rather than the federal level Each year, state courts process millions of cases across civil, criminal, family, juvenile, and traffic matters For example, approximately 27.5 million civil and criminal cases are resolved in state courts nationwide, along with about 4.5 million family cases, 1.7 million juvenile cases, and more than 55 million traffic cases This enormous volume highlights the essential role of state and local courts in regulating society and handling most legal matters in the United States.

2.1.2 The limitation in power of the federal government

According to the United States Constitution, the federal government is limited to the powers and responsibilities and is prohibited to implement certain fields

2.1.2.1 Legislative power Before the appearance of the United States Constitution in 1787, states played a significant role in regulating the daily life of people from 13 colonies in North America The states step by step set up their own colonies, reinforced the relationship with their inhabitants, as well as harmonized the benefit conflicts in the society The state government has grown up on the way to establish the nation The United States Constitution was written basing on experiences drawing from the state Constitutions, from ruling of the colonists of states on the onset Each state can never abandon its independence States exist as independent countries and no states can be considered to be more powerful than the other

85 Alan B Morrison (chủ biên), Những vấn đề cơ bản về luật pháp Mỹ, nhà xuất bản Chính trị quốc gia,

Federal government authority is limited and differs from the organic authority of state governments, which retain broad legislative power in most areas as long as state regulations do not fall under exclusive federal powers or violate the Constitution The federal government regulates only the areas delegated by the Constitution, and any overreach by Congress can be ruled unconstitutional In such cases, the Supreme Court may declare that Congress has exceeded its powers.

The limited authority content of the federal government is regulated in the Constitution including the following powers and responsibilities: 1) to lay

Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States; these duties and levies must be uniform across the United States; it can borrow money on the credit of the United States; and it may regulate commerce with foreign nations, among the states, and with the Indian tribes.

4) to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; 5) to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; 6) to provide for the punishment of counterfeiting the securities and current coin of the United States; 7) to establish post offices and post roads; 8) to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; 9) to constitute tribunals inferior to the supreme court; 10) to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; 11) to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 12) to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; 13) to provide and maintain a navy; 14) to make rules for the government and regulation of the land and naval forces; 15) to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; 16) to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress; 17) to exercise exclusive legislation in all cases whatsoever, over such district (not

Features of the principle of separation of powers in the United States

2.2.1 The relationship between federal and state legislative power

According to the Constitution and its amendments, the separation of powers between federal and state governments reveals the dominant role of state governments in the legislative process and the exceptional responsibilities of the federal government in national affairs States hold primary authority to legislate on many local and regional issues, while the federal government handles constitutional powers, national defense, interstate commerce, and nationwide policy This division of powers, anchored in federalism and checks and balances, prevents the concentration of authority and fosters cooperative governance between both levels.

Under the Constitution, the federal government is expressly limited in its powers, while state law governs most areas of daily life and is enforcement-oriented primarily by state governments However, the federal government's authority has expanded over time, largely through interpretations of the Constitution by the U.S Supreme Court There are numerous areas where federal and state authority overlap—tax, credit, eminent domain, health care, education, welfare, and transportation—often requiring cooperation between the two levels The federal government can influence state policy by steering legislation or policy through conditional funding, stimulus packages, or economic constraints on states Tight federal–state cooperation is a key factor in upholding the Constitution, fostering national prosperity, and preserving freedom for citizens.

State governments are not subordinate to the federal government; they retain powers in areas defined by the United States Constitution They are not responsible to report to the federal government for those powers In cases of conflict between federal and state authority, the U.S Constitution and federal law take precedence over state constitutions and laws, as established by the Supremacy Clause in Article VI, Clause 2 of the Constitution Consequently, federal statutes trump the highest state laws.

101 Michael Bogdan, Luật so sánh, nhà xuất bản Kluwer Law và Taxation, 2002, p 120

Provisions in Section 56 state that a valid discretionary act by a single federal administrative official prevails when it conflicts with a state constitution Consequently, federal law preempts the conflicting provisions of the state constitution, ensuring that federal decisions take precedence.

However, applying this clause in practice is not always straightforward, and courts have sometimes struggled to interpret it In Cipollone v Liggett Group Inc (1992), Cipollone sued Liggett Group, a cigarette company from which she had purchased cigarettes for years, while Liggett relied on federal law in defense After navigating pivotal controversies that shaped the court's views, the U.S Supreme Court held that some—but not all—state-law arguments are preempted by federal law The federal preemption principle then imposes two limitations on state legislative authority: first, states may not levy taxes or duties on the federal government unless Congress explicitly authorizes them; second, states may not tax or regulate individuals and organizations employed by the federal government or acting as private contractors in ways that hinder the federal government's use of this workforce.

Although the federal government has grown to predominate within the separation of powers, state governments still retain guaranteed authority in several important areas First, states are empowered to govern within their borders by exercising police powers, enacting laws on education, public health and safety, regulating intrastate commerce, and addressing local needs that do not fall under federal jurisdiction They also administer elections, manage state budgets, and protect constitutional rights, all while complying with the U.S Constitution and federal law This framework preserves a vital balance between national authority and state sovereignty in the American system.

103 Alan B Morrison (chủ biên), Những vấn đề cơ bản về luật pháp Mỹ, nhà xuất bản Chính trị quốc gia,

104 See Cipollone vs Ligget Group, Inc., 505 U.S 504, 112 S Ct 2608 (1992)

105 Alan B Morrison (chủ biên), Những vấn đề cơ bản về luật pháp Mỹ, nhà xuất bản Chính trị quốc gia,

106 Alan B Morrison (chủ biên), Những vấn đề cơ bản về luật pháp Mỹ, nhà xuất bản Chính trị quốc gia,

The framework establishes state and local government structures, conducts elections, and protects community health The state legislature retains authority to set the timing, polling, and procedures for its Senate and Representative elections Congress may modify state election laws at any time through legislation, with the exception of provisions governing state election polls This arrangement embodies a balance of power between Congress and the state legislatures, ensuring that neither holds unchecked authority while both play a role in governing one another.

State governments are an integral part of the government system, embedding laws into daily life and ensuring local authority governs local disputes The federal government cannot predominate over state governments, preserving a balance of power within the federal system In the judiciary, federal courts interpret the United States Constitution and apply federal law, but they must respect the jurisdiction conferred on state courts by the Constitution Federal courts shall not infringe on state court jurisdiction, and judgments by state courts in disputes arising under state law are final and ordinarily not subject to federal reversal in such cases This framework ensures that the state government retains ultimate power over disputes arising under state law, allowing final judgments to stand at the state level.

US political parties are hierarchically organized with integrated political structures spanning multiple levels of government This system draws party members from both state and federal agencies, which enhances cooperation between federal and state authorities and supports more coordinated governance.

107 Van Horn, Carl, The State of the States, 3 rd ed., Washington D.C.: CQ Press, 1996, p 74

108 Van Horn, Carl, The State of the States, 3 rd ed., Washington D.C.: CQ Press, 1996, p 78

109 Viện nghiên cứu Giáo dục Quốc tế, Đôi nét về nước Mỹ: Chính quyền Mỹ hoạt động như thế nào, nhà xuất bản Từ điển Bách khoa, 2007, p 49

58 government leaders come from the same political party Even when they act independently, party members tend to align with the party’s guiding philosophy They also rely on the support of fellow party members and the party’s government machinery to pave the way for re-election.

2.2.2 The relationship between the multinational agreements and domestic laws of the United States

Multinational agreements are international treaties that set the legal rules for the matters the contracting parties address and provide mechanisms to safeguard their rights and interests The United States, a global power in economy, military, culture, and education, has long been a leader in negotiating and signing multinational agreements across diverse fields Yet the U.S constitutional framework—where the President negotiates and signs treaties and the Constitution divides treaty-making power between the federal government and the states—adds complexity to the national process This federal–state divide has sparked debate about the validity and domestic enforceability of these international documents.

First of all, the authors would like to discuss about the provisions of the Constitution which established the authority of the President of the United

States to negotiate and sign the multi-national agreements Section 2, Article

II of the United States Constitution, provides that “He (the President) shall have Power, by and with the Advice and Consent of the Senate 113 , to make

110 Bureau of International Information Programs, Outline of the United States legal system, U.S Department of State, 2001, p 58

111 Law Library Resource Exchange, available at http://www.llrx.com/

112 Polsby, Nelson, Presidential Elections: Strategies and Structures of American Politics, 9 th ed., Chatham, New Jersey: Chatham House, 1996, p 65

113 The Senate is also called the Upper House

Under the Constitution, treaties require the concurrence of two-thirds of the Senators present, and the President, by and with the Advice and Consent of the Senate, shall nominate and appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers whose Appointments are not otherwise provided for by law; Congress may by law vest the appointment of such inferior Officers in the President alone, in the Courts of Law, or in the Heads of Departments This arrangement can create challenges in signing multinational agreements For a bill to become federal law, it must follow a strict bicameral process beginning with introduction in the Senate or the House of Representatives, then referral to a committee with authority to work directly on the bill, and finally passage by both houses.

After both chambers approve the conference committee bill, it goes to the President for signature The President has four options: sign the bill into law; take no action while Congress is in session, in which case the bill becomes law after ten days; take no action while Congress adjourns, in which case the bill dies; or veto the bill Because of these checks and procedures, only a small number of bills are approved and become law each year, compared with thousands proposed in Congress.

However, with the rights authorized by Constitutions at Section 2, Article II, President, can easily get the legislative competence with much simpler procedures Most barriers are also demolished except the condition

114 Section 2, Article II, the United States Constitution

115 In this case, the Congress may attempt to override the veto This requires two-thirds vote by both the House and Senate Section 7, Article I, the Constitution of the United States

Conclusions

Separation of powers is a foundational principle of the United States legal system, guiding an effectively operating national government amid competing political and social demands from states and the federal level As a federal system, the United States comprises layers of government—federal, state, and local—each with distinct powers that distribute authority and prevent its concentration This structure divides government into the legislative, executive, and judicial branches, creating checks and balances that foster accountability and coordination across levels Together, these elements enable governance that can respond to diverse constituencies while managing the tensions between state autonomy and national interests.

Within this dissertation, the principle of separation of powers in the United States is described as operating through two sovereign layers—the federal government and the state governments—each defined by its own constitution, elected officials, and administrative structure States retain the authority to make and enforce laws, levy taxes, and conduct their affairs largely without interference from the federal government or other states By contrast, the federal government is limited to the powers expressly granted to it by the United States Constitution Over time, constitutional interpretation and amendments have adapted to changing circumstances, causing the scope of federal power to evolve alongside the nation.

144 Fallon, Richard H., Hart, Henry Melvin, and Wechsler, Herbert, Hart and Wechsler’s the Federal Courts and the Federal System, 5 th ed., New York, NY: Foundation Press, 2003, p.62

145 Samuel Eliot Morison, Henry Steele Commager and William E Leuchtenburg, The Growth of the American Republic, pp.198, 7 th edition, New York: Oxford University Press, 1980

The United States is a constitutional federal republic that has been a leading economic, political, and cultural force for more than two centuries While many factors explain its global strength, a clear understanding begins with the framework of its government and legal system Americans take pride in the Constitution and in the federal structure, believing they implemented a foundational invention of social organization The federal system, established by the Constitutional Convention and codified in the 1787 Constitution, introduced the world to a new model of governance and launched a remarkable experiment in liberty and democracy Today, the United States' governmental framework remains a major reference for scholars and policymakers worldwide seeking to study and learn from its design.

The United States has normalized diplomatic relations with the Socialist Republic of Vietnam, marking a major shift in US-Vietnam relations, while Vietnam has joined the World Trade Organization as the organization’s 150th member, signaling expanded access to global markets and strengthened economic cooperation between the two countries.

146 Central Intelligence Agency, The World Factbook, ed 2010 (area given in square kilometers)

147 Embassy of the United States, United States – Vietnam relations: 15 th Anniversary, vietnam.usembassy.gov/15th-anniversary.html

Vietnamese organizations and individuals aiming to learn about the United States—its people, society, and institutions—should pursue a thorough, foundational understanding This mutual insight can act as a bridge between the two nations, fostering a stronger, more enduring partnership that supports the long-term goals of both countries.

148 The General Council approved Viet Nam's accession package on 7 November 2006 Viet Nam became the

WTO's 150th member on 11 January 2007, available at www.wto.org/english/thewto_e/acc_e/a1_vietnam_e.htm

1 The Constitution of the United States in 1787 (with 27 amendments)

2 The Constitution of Socialist Republic of Vietnam in 1992 (amended in

3 Alan B Morrison (chủ biên), Những vấn đề cơ bản về luật pháp Mỹ, nhà xuất bản Chính trị quốc gia, 2007

4 PGS TS Phạm Duy Nghĩa, Tìm hiểu pháp luật Hoa Kỳ trong điều kiện

Việt Nam hội nhập kinh tế khu vực và thế giới, nhà xuất bản Chính trị quốc gia, 2001

5 Phạm Minh, Những điều cần biết về pháp luật Hoa Kỳ, nhà xuất bản

6 Réne David, Những hệ thống pháp luật chính trong thế giới đương đại, nhà xuất bản TP.HCM, 2003

7 Michael Bogdan, Luật so sánh, nhà xuất bản Kluwer Law và Taxation,

8 Michel Fromont, Các hệ thống pháp luật cơ bản trên thế giới, nhà xuất bản Tư pháp, 2006

9 Ngô Huy Cương, Góp phần bàn về cải cách pháp luật ở Việt Nam hiện nay, nhà xuất bản Tư pháp, 2006

10 Nguyễn Cảnh Bình, Hiến pháp Mỹ được làm ra như thế nào, nhà xuất bản Tri thức, 2009

11 Viện nghiên cứu Giáo dục Quốc tế, Đôi nét về nước Mỹ: Chính quyền

Mỹ hoạt động như thế nào, nhà xuất bản Từ điển Bách khoa, 2007

1 Administrative Office of the United States Courts, United States Courts: Their Jurisdiction and Work, Washington D.C, 1989

2 Baum, Lawrence, American Courts: Process and Policy, 5 th ed., New York, NY: Foundation Press, 2003

3 Brinkley, Alan, Nelson W Polsby, Kathleen M Sullivan, The New

Federalist Papers: Essays in Defense of the Constitution, New York,

4 Bowen, Catherine, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787, Boston,

5 Bureau of International Information Programs, Outline of United States

6 Bureau of International Information Programs, Outline of the United States legal system, U.S Department of State, 2001

7 Chemerinsky, Erwin, Federal Jurisdiction, 4 th ed., New York, NY: Aspen Publishers, 2003

8 Day, The National Conference of Commissioners on Uniform State

9 D Flaherty, Essays in the History of Early American Law, ed 1969,

Lanham, Maryland: Rowman and Littlefield

10 Douglas K Stevenson, American Life and Institutions, Bureau of

Educational and Cultural Affairs, United States Department of State, Washington District Columbia 20547

11 E Allan Farnsworth, Introduction to The Legal System of The United States, Oceana Publications, Inc., 1994

12 E Jaynes, The Selection and Tenure of Judges 96, 1944

13 Edward L Ayers, In the Presence of Mine Enemies: War in the Heart of America, 1859 – 1863, W.W Norton and Company, 2004, p.65

14 Fallon, Richard H., Hart, Henry Melvin, and Wechsler, Herbert, Hart and Wechsler’s the Federal Courts and the Federal System, 5 th ed., New York, NY: Foundation Press, 2003

15 Feinman, Jay M., Law 101: Everything You Need to Know About the

American Legal System, New York, NY: Oxford University Press, Inc.,

16 Fine, Toni M., American Legal Systems: A Resource and Reference Guide, Cincinnati, Ohio: Anderson Publishing, 1997

17 Franklin, Carl J, Constitutional Law for the Criminal Justice Professional, Boca Raton, FL: CRC Press, 1999

18 Friedman, Lawrence Meir, Law in America: A Short History, New York, NY: Modern Library, 2002

19 J Hurst, The Growth of American Law: The Law Makers, 1950

20 Jagdish Bhagwati, CEE: Protectionism, Conciese Encyclopedia of Economics, Library of Economics and Liberty, ed.2008

21 James Wilson, American Government: Institutions and Policies, 7 th ed., Boston, Houghton Mifflin, 1998, p 27

22 Mason, Alpheus, American Constitutional Law: Introductory Essays and Selected Cases, 12 th ed., New York: Prentice Hall, 1998

23 M Horwitz, The Transformation of American Law, 1780 – 1860,

24 Meador, Daniel J., American Courts, St Paul, Minnesota, West Publishing Co., 1991

25 Mullenix, Linda S., Martin Redish, and Georgene Vairo,

Understanding Federal Courts and Jurisdiction, New York, NY:

26 Polsby, Nelson, Presidential Elections: Strategies and Structures of American Politics, 9 th ed., Chatham, New Jersey: Chatham House,

27 Richard C Schroeder, Outline of United States Government, Office of

International Information Programs, U.S Department of State, 2000

28 Robert A Carp and Ronald Stidham, Judicial Process in America, 5 th ed., Congressional Quarterly, 2001

29 Samuel Eliot Morison, Henry Steele Commager and William E Leuchtenburg, The Growth of the American Republic, pp.198, 7 th edition, New York: Oxford University Press, 1980

30 Stein, The Attraction of the Civil Law in Post – Revolutionary America,

31 Van Horn, Carl, The State of the States, 3 rd ed., Washington D.C.: CQ Press, 1996

32 Woll Peter, American Government: Readings and Cases, 13 th ed., New York, New York: Longman, 1999

III CASE STUDY (in English)

1 Heydon‟s Case, 76 Eng Rep 637; 3 Co 7, 1584

2 Omychund v Barker, 26 Eng Rep 15, 24; 1 A and K 22, 23, 1744

3 McAlister (Donoghue) v Stevenson, A.C 562 (House of Lords: Scotland), 1932

5 Klaxon Co v Stentor Electric Manufacturing, Inc., 313 U.S 487, 1941

6 Wickard, Secretary of Agriculture v Filburn, 317 U.S 111, 63 S.Ct 82,

7 The United States v Morton Inc., 338 U.S 632, 1950

8 Katzenbach v McClung, and Heart of Atlanta Motel, Inc v the United States, 379 U.S 241, 85 S.Ct 348, 1964

9 Russell v the United States, 471 U.S 858, 105 S.Ct 2455, 1985

10 The United States v Lopez, 115 S.Ct 1624, 1985

11 Cipollone v Ligget Group, Inc., 505 U.S 504, 112 S Ct 2608, 1992

1 Quốc hội Việt Nam, www.na.gov.vn

2 Cổng Thông tin Điện tử Chính phủ, www.chinhphu.vn

3 Tòa án Nhân dân Tối cao, www.toaan.gov.vn/portal/page/tandtc

1 The White House, http://www.whitehouse.gov

2 USInfo, http://usinfo.state.gov

3 Thomas, http://thomas.loc.gov/

4 FirstGov.gov, http://www.firstgov.gov

5 National Conference of State Legislatures (NCSL), http://www.ncsl.org/

6 National Association of Counties (NACo), http://www.naco.org/

7 Brookings Institution, http://www.brookings.org

8 The Heritage Foundation, http://www.heritage.org

9 American Enterprise Institue, http://www.aei.org

10 The Cato Institue, http://www.cato.org

11 The Urban Institue, http://www.urbaninstitue.org

12 C-SPAN, http://www.c-span.org/

13 American Historical Association (AHA), http://www.historians.org/index.cfm

14 American History: A Documentary Record, 1942 – Present, http://www.yale.edu/lawweb/avalon/chrono.htm

15 American government, http://www.america.gov

16 The Avalon Project at the Yale Law School: Major Collections, http://www.yale.edu/lawweb/avalon/major.htm

17 Biography of America, http://www.learner.org/biographyofamerica/

18 Digital History, http://digitalhistory.uh.edu/

19 Documents for the Study of American History, http://ku.edu/carrie/docs/amdocs_index.htm