In 1765 English jurist SIR WILLIAM BLACKSTONEdescribed“the power of Parliament” to make laws in England as“absolute,” “despotic,” and “without control.” The American Revolution, which be
Trang 1antecedents of many substantive areas of U.S.
law, including the ubiquitous system of state and
federalTAXATION, may be found in English history
as well
The story of English CONSTITUTIONAL LAW
prior to the American Revolution, which is
inextricably intertwined with the development
of English law as a whole during this period, can
be told in three parts: the centralization of power
in the monarchy, the creation of Parliament as a
limitation on the absolute power asserted by the
monarchy, and the struggle for supremacy
between Parliament and the monarchy In large
part, the American Revolution resulted from
Parliament’s failure to check the monarchy’s
sovereignty and establish itself as the supreme
lawmaking body representing the people of
England and its colonies
When William, duke of Normandy, also
known as William the Conqueror, vanquished
England in 1066, there was no English law as
the Americans of 1776 came to know it No
national or federal legal machinery had yet been
contemplated Law was a loose collection of
decentralized customs, traditions, and rules
followed by the Anglians and Saxons, among
others Criminal cases were indistinguishable
from civil cases, and both secular and spiritual
disputes were resolved at the local level by
community courts Trials in the modern sense
did not exist, nor did juries Guilt and innocence
were determined by compurgation and ordeal
Compurgation was a ritualistic procedure in
which accused persons might clear themselves
of an alleged wrongdoing by taking a sworn
oath denying the claim made against them, and
corroborating the denial by the sworn oaths of
12 other persons, usually neighbors or relatives
If an accused person failed to provide the
requisite number of compurgators, he or she
lost The number of compurgators was the same
as the number of jurors later impaneled to hear
criminal cases under the common law In the
United States, the SIXTH AMENDMENT to the
Constitution required that all criminal trials be
prosecuted before 12 jurors—until 1970, when
the Supreme Court ruled that six-person juries
were permissible (Williams v Florida, 399 U.S
78, 90 S Ct 1893, 26 L Ed 2d 446)
Trial by ordeal was a superstitious
proce-dure administered by clerics who subjected
accused persons to physical torment in hopes of
uncovering divine signs of guilt or innocence
The most common forms of ordeal involved boiling or freezing waters and hot irons In the ordeal of freezing water, accused persons were thrown into a pool to see if they would sink or float If they sank, the cleric believed they were innocent, because the water would presumably reject someone with an impure soul Of course, persons who sank to the bottom and drowned during this ordeal were both exonerated of their alleged misbehavior, and dead
Battle was another form of primitive trial that was thought to involve divine intervention
on behalf of the righteous party The comba-tants were armed with long staffs and leather shields, and fought savagely until one party cried, “Craven,” or died
Trial by battle, though in many ways as barbaric as trial by ordeal, foreshadowed modern trials in several ways The combatants fought in an adversarial arena before robed judges who presided over the battle The accused person was required to put on a defense, quite literally in the physical sense, against an oppo-nent who was trying to prove the veracity of his
or her claims Some parties to a battle, particularly women, children, and older indivi-duals, were entitled to hire stronger, more able champions to fight on their behalf This last
In 1215, King John approved the Magna Charta, which guaranteed fundamental liberties
to the church and to individuals CORBIS.
Trang 2practice sheds light on the more recent phrase hired guns, which is sometimes used to describe U.S trial attorneys
William the Conqueror understood the importance of revenue, and that is where he began building the English empire In 1086 William initiated the Domesday Survey, which sought to determine the amount and value of property held in England, for the purpose of assessing taxes against the owners The Domes-day Survey was conducted by eight panels of royal commissioners who traveled to every county in the country, where they collected information through sworn inquests Although the survey began as a method of recording real property held in the kingdom, one contempo-rary Saxon chronicler moaned“that there was not a single hide… nor … ox, cow or swine”
omitted (Trevelyan 1982) The Court of Exchequer served as auditor, accountant, and tax collector for William, and provided a venue
to settle disputes between the Crown and taxpayers, becoming the earliestDEPARTMENT OF STATE
William’s system for revenue collection began a process that gradually replaced the community courts of justice with a legal system that emanated from a central location, the king’s castle in Westminster One symbol of powerful centralized government in the United States is theINTERNAL REVENUE SERVICE For many U.S citizens, paying taxes is a necessary evil
Taxes are necessary to keep the government, and its justice system, afloat At the same time, they take away individuals’ money
Henry II (1154–89) further strengthened the central government by enlarging the power and jurisdiction of the royal system of justice During his reign, any crime that breached the ruler’s peace was tried before a royal court sitting in Westminster, or by royal itinerant justices who traveled to localities throughout England to hear disputes Heretofore, the royal court heard only cases that directly threatened the monarch’s physical or economic interests Most other complaints, except for those heard by the Catholic Church, were leveled by private indivi-duals, who were also responsible for proving their accusations By increasing the sphere of what the government considered public wrongs, Henry II laid the groundwork for the modern U.S criminal justice system, where attorneys for the federal, state, and local governments are
invested with the authority to prosecute persons accused of criminal wrongdoing
Henry II also laid the groundwork for the common-law method of deciding cases,
where-by judges make decisions in accordance with other decisions they have rendered in similar matters The royal system of justice was governed
by a single set of legal rules and principles, which was applied evenhandedly to litigants presenting claims to the monarch’s justices This system superseded one that applied the often inconsis-tent customary laws of neighboring communities
of different ethnic backgrounds Because the monarch’s law was applied in a uniform manner,
it became“common” to every shire in the land This“common-law” system of adjudication was adopted by the American colonies and continues
to be applied in nearly all of the 50 states of the Union
In addition to becoming more prevalent, the royal system of justice was becoming more popular Its popularity stemmed from the rational legal procedures and reliable modes of evidence developed by the King’s Court, which slowly supplanted their superstitious, ritualistic, and dangerous predecessors, compurgation, ordeal, and battle One new rational procedure was trial by jury, which Henry II made available
in land disputes between laypersons and the clergy The juries comprised 12 sworn men who possessed some knowledge of the property dispute, and were asked to announce aVERDICT
to the royal justices based on this knowledge The trial-by-jury system employed by Henry II, though only an embryonic form, reflected society’s growing understanding that verdicts based on personal knowledge of a dispute were more reliable than verdicts based on ordeals of freezing water and contests of brawn and agility Henry II also made the law more imper-sonal and less vindictive In 1166, the Assize of Clarendon prohibited the prosecution of any-one who had not first been accused by a
“presenting jury” of 12 to 16 men from the community in which the crime occurred The presenting jury foreshadowed the modern GRAND JURYas anACCUSATORY BODYthat identified persons for prosecution but made no determi-nation as to guilt or innocence The presenting jury was seen as a more neutral and detached alternative to the system it replaced, which required the alleged victims, some of whom were waging a personal vendetta against the
Trang 3accused person, to identify alleged criminals for
prosecution
The writ de odio et atia provided additional
safeguards for defendants wrongfully accused of
criminal activity, by permitting theDEFENDANTto
appeal legal issues to the King’s Court in cases
where the complainant was proceeding out of
spite or hatred This writ of appeal was an early
precursor to the modern appellate system in the
United States, which similarly permits parties to
appeal legal issues they believe did not receive
appropriate consideration at the trial level
The presenting jury and writ of appeal
underpin two beliefs that have been crucial to
the development of the English and U.S
systems of justice The first is the belief that a
wrongfully accused person is no less a victim
than is the target of civil or criminal
malfea-sance The second is the belief that the legal
system must provide an impartial forum for
seeking the truth in disputed legal claims These
two beliefs paved the way for an assortment of
procedural and evidentiary protections that
have evolved to protect innocent persons from
being unjustly convicted in criminal cases, and
to keep prejudices from biasing judges and
jurors in civil cases
However, the English monarchy did not
centralize its power without cost Frequently,
English rulers abused their enlarged power to
such an extent that they met with popular
resistance One of the earliest such
confronta-tions occurred in 1215, and produced the
first great charter of constitutional liberties,
theMAGNA CARTA The Magna Carta can best be
understood as a peace treaty between three rival
jurisdictions of political and legal power: the
Crown, the church, and the barons
In the thirteenth century, the king’s system
of justice competed for influence with
ecclesias-tical and manorial courts The ECCLESIASTICAL
COURTSwere run by the Catholic Church, with
the pope presiding as the spiritual head in
Rome Manorial courts were run by barons,
who were powerful men holding large parcels of
land from the king, known as manors Each
baron, as lord of his manor, retained
jurisdic-tion over most legal matters arising among his
tenants, also called vassals, who agreed to work
on the land in exchange for shelter and security
The jurisdictions of the Crown, the church, and
the barons overlapped and each depended on
the others for support
The tyranny of King John (1199–1216) alienated the church and the barons, converting them into adversaries of the Crown John was excommunicated by the pope, church services and sacraments were suspended in England, and the barons renounced homage to the Crown
Spearheaded by Stephen Langton, archbishop of Canterbury, the barons confronted King John
on the battlefield at Runnymede, where they won recognition for certain fundamental liber-ties contained in the 63 clauses that make up the Magna Carta
The Magna Carta granted the church freedom from royal interference except in a limited number of circumstances, establishing
in nascent form the separation of church and state The Great Charter required that all fines bear some relationship to the seriousness of the offense for which they were imposed, establish-ing the principle of proportionality between punishment and crime, which the U.S Supreme Court still applies under theCRUEL AND UNUSUAL PUNISHMENT Clause of theEIGHTH AMENDMENT to the U.S Constitution
Most important the Magna Carta prohibited any “free man” from being “imprisoned, or disseised, … or exiled, … except by the lawful judgment of his peers, or by the law of the land”
(ch 39) The phrase“law of the land” was later equated with “due process” in the American colonies and received constitutional recognition
in the Fifth and Fourteenth Amendments to the U.S Constitution The Supreme Court has described due process as the“most comprehen-sive of liberties” guaranteed in the Constitution (ROCHIN V.CALIFORNIA, 342 U.S 165, 72 S Ct 205,
96 L Ed 183[1952]), and has relied on the Due Process Clause of theFOURTEENTH AMENDMENTto make most of the freedoms contained in theBILL
OF RIGHTSapplicable to the states
Fifty years after Magna Carta, Parliament was created to serve as an additional check on the arbitrary power of the monarchy In 1265, Parliament was a very small body, consisting
of two knights from each shire, two citizens from each city, and two burgesses from each borough By the fourteenth century, Parliament was being summoned to advise the monarch, vote on financial matters, and supervise the excesses of local officials Representatives for the barons, later known collectively as the House of Lords, wielded more power than did represen-tatives for the commoners, later known
Trang 4Dr Bonham’s Case
Dr Bonham’s Case, 8 Co Rep 114
(Court of COMMON PLEAS [1610]),
stands for the principle that legislation
passed by the English Parliament is
subordinate to the common-law
deci-sions made by trial and appellate court
judges, and any statute that is contrary to
“common right and reason” must be
declared void (Thorne 1938)
The decision in this case, which was
written bySIR EDWARD COKEsitting as chief
justice for the Court of Common Pleas in
England, spawned the concept ofJUDICIAL
REVIEWunder which courts of law, as the
primary oracles of theCOMMON LAWin the
British and U.S systems of justice, are
authorized to invalidate laws enacted by
the executive and legislative branches of
government The power of judicial review,
which was first recognized by the U.S
Supreme Court inMARBURY V.MADISON, 5
U.S (1 Cranch) 137, 2 L Ed 60, is
invoked by courts every day across the
United States but has since been rendered
obsolete in England
Bonham’s Case arose from a dispute
regarding the unlicensed practice of
medicine Dr Thomas Bonham had
received a degree in physic medicine from
the University of Cambridge In 1606
Bonham was discovered practicing such
medicine in London without a license,
and was summoned to appear before the
censors at the London College of
Physi-cians, who maintained jurisdiction in that
city over the practice of medicine
Bonham was examined by the
col-lege censors in a number of areas
regarding his professional practice, and
provided answers“less aptly and
insuffi-ciently in the art of physic” (Stoner 1992,
49) As a result, Bonham was determined
unfit to practice medicine in this field,
and was ordered to desist from such
practice in London When Bonham was
later discovered flouting this order, he
was arrested and placed in the custody of
the censors
Bonham refused to undergo further examination As a graduate of Cambridge,
he asserted that the London College of Physicians had no jurisdiction over him and thus possessed no authority to arrest
or fine him Promising to continue his practice of physic medicine if released, Bonham was immediately jailed
The case came before the Court of Common Pleas when Bonham claimed that his continued detention by the college amounted toFALSE IMPRISONMENT
As a defense, the college relied on its statute of incorporation, which autho-rized it to regulate all physicians in London and to punish practitioners not licensed by the college The statute also entitled the college to one-half of all the fines imposed by it
The Honorable Justice Coke, also a Cambridge graduate, sided with his fellow alumnus After singing the praises
of their alma mater, Coke argued that because the college censors were entitled
to receive a portion of the fine they imposed on Bonham, the statute made them prosecutor,PLAINTIFF, and judge in the dispute: “The censors cannot be judges, ministers and parties; judges… give sentence or judgment; ministers… make summons; and parties … have moiety [half] of the forfeiture, because
no person may be a judge in his own cause… and one cannot be judge and attorney for any of the parties.” Coke suggested that the impartiality of a judge
is compromised when the judge is also the plaintiff who will benefit financially from any fines imposed on theDEFENDANT,
or the prosecutor who is the advocate responsible for seeking such fines Al-though the parliamentary statute in question clearly contemplated that Lon-don College would wear all three of these hats, Coke observed,
[I]t appears in our books, that in many cases, the common law will controul Acts of Parliament,
and sometimes adjudge them to
be utterly void: for when an Act
of Parliament is against common right and reason, or repugnant,
or impossible to be performed, the common law will controul it, and adjudge such Act to be void Coke placed the judiciary in the middle of what was becoming a titanic struggle for power between Parliament and the ruler of England Until the seventeenth century, the English monar-chy enjoyed nearly absolute power over all political and legal matters that con-cerned the country as a whole Despite the growing popularity and importance
of Parliament during the fifteenth and sixteenth centuries, the monarchy’s au-tocratic power, which King James I (1603–25) asserted was divine in origin, included the prerogative to enact laws without parliamentary consent
By the close of the seventeenth century, however, the pendulum of power had swung in favor of Parliament The Glorious Revolution of 1688 sub-ordinated the power of the English Crown and judiciary to parliamentary sovereignty In 1765 English jurist SIR WILLIAM BLACKSTONEdescribed“the power
of Parliament” to make laws in England
as“absolute,” “despotic,” and “without control.”
The American Revolution, which began 11 years after Blackstone’s pro-nouncement of Parliament’s unfettered power, was commenced in response to the coercive legislation passed in the colonies by what had become a despotic Parliament THOMAS JEFFERSON, JAMES MADISON, and their contemporaries be-lieved that a legislative despot was no better than a monarchical despot In
1787 the U.S Constitution established the judiciary as a check on the legislative and executive branches of government, a check that was foreshadowed by Coke’s opinion in Bonham’s Case
Trang 5James I was cognizant of the dangers
Bonham’s Case presented to his claims
of divine royal prerogative The king
understood that the “common law,”
which Bonham’s Case said controlled acts
of Parliament, was really just a decision
made by a court of law, or, more
particularly, by a judge or panel of judges
James also understood that if the judiciary
were allowed to assert the power to review
acts of Parliament, it was only a short step
away from passing judgment on actions
taken by the Crown
Accordingly, King James removed
Coke from the Court of Common Pleas
in 1613, appointing him chief justice of the
King’s Bench This constituted a
promo-tion in name only, because Coke was now
under closer scrutiny by the Crown
Much to the Crown’s chagrin, Coke’s
replacement on the Court of Common
Pleas, Sir Henry Hobart, expanded the
concept of judicial review intimated by
Bonham’s Case In Day v Savadge, Hob 84
(K.B 1614), Hobart declared that“an act of
parliament made against natural equity, as
to make a man judge in his own cause, is
void in itself” (as quoted in American
General Insurance Co v FTC, 589 F.2d
462[9th Cir 1979]) Where did the new
chief justice derive the court’s power to
invalidate the laws of Parliament? Hobart
said,“[B]y that liberty and authority that
judges have over laws, especially… statute
laws, according to reason and best
conve-nience, to mould them to the truest and
best use” (Sheffield v Ratcliff, Hob (K.B
1615), as quoted in Plucknett 1926, 50)
Exasperated by such further attempts
to limit his prerogative, James I
dis-missed Coke from the King’s Bench, and
ordered him to“correct” his decision in
Bonham’s Case, which had subsequently
been published in England’s CASE LAW
reporter known as The Reports Coke
refused to accede to the king’s demands
The importance of Coke’s opinion in
Bonham’s Case is sometimes downplayed
by some scholars who point to England’s
later recognition of Parliament as the
country’s supreme sovereign entity
How-ever, this criticism overlooks the indelible
imprint left by Bonham’s Case on U.S law
The American colonists were
inti-mately familiar with the writings of Lord
Coke Coke’s Reports first came to
America on the Mayflower, and the Massachusetts General Court ordered two complete sets from England in
1647 Coke’s opinion in Bonham’s Case was among his most popular writings
In Paxton’s Case of the Writ of Assistance, Quincy 51 (Mass 1761), colonist James Otis challenged Massa-chusetts’s authority to issue writs of assistance, general search warrants that empowered local sheriffs to enter private homes and businesses to seize smuggled goods Otis told the colonial court that
he objected to such writs, which were created by a parliamentary act in 1662, because they violated the principle of Bonham’s Case: “As to acts of parliament,
an act against the Constitution is void
An act against natural equity is void; and
if an act of parliament should be made in the very words of this petition, it would
be void The Executive Courts must pass such acts into disuse.”
JOHN ADAMS, who was in the Boston courtroom where Otis made his argu-ment for the colonial application of Bonham’s Case, later exclaimed, “Then and there the child Independence was born.” Adams might also have exclaimed that the seeds of judicial review had been planted in the American colonies by Otis, who was unequivocally assigning to
“Executive Courts” the responsibility of invalidating parliamentary legislation that violated constitutional precepts
Four years later, the colonies again relied on the principle of Bonham’s Case, this time in their opposition to theSTAMP ACT, a parliamentary statute that taxed everything from newspapers to playing cards Thomas Hutchinson, lieutenant governor of Massachusetts, encouraged the“friends of liberty” and opponents of the Stamp Act to“take advantage of the maxim they find in Lord Coke that an act
of parliament against Magna Carta or the peculiar rights of Englishmen is ipso facto void.”
In 1786 the Superior Court of Rhode Island relied on Bonham’s Case to strike down a statute that denied the right to trial by jury for certain crimes, because
“Lord Coke” held that such statutes were
“repugnant and impossible” (Trevett v
Weeden [Newport Super Ct Judicature],
as quoted in Plucknett 1926, 66)
The U.S acceptance of the legal principles enunciated in Bonham’s Case culminated in 1803 when the U.S Supreme Court handed down its deci-sion in Marbury, which established the power of judicial review by authorizing federal judges to invalidate unconstitu-tional laws enacted by the coordinate branches of government Nowhere in Marbury does the Supreme Court cite Bonham’s Case or expressly quote Lord Coke But the influence of both Coke and his opinion cannot be missed Chief Justice JOHN MARSHALL, writing for a unanimous Court, began his opinion in Marbury with two premises: the“constitution controls any legislative act repugnant to it,” and “an act of the legislature repugnant to the constitution
is void.” Congress cannot be entrusted to determine the constitutionality of legisla-tion passed by the House and Senate, Marshall implied, for the same reason the London College censors could not be allowed to judge their own cause
“To what purpose are the powers [of Congress] limited” by the federal Consti-tution, Marshall asked, “if these limits may, at any time, be passed by those intended to be restrained?” In a passage that harkens back to Chief Justice Hobart’s opinion in Sheffield v Ratcliff, Marshall concluded that only the judicial branch of government can be entrusted with such an overreaching power:“It is emphatically the duty of the judicial department to say what the law is Those who apply the rule to particular cases, must of necessity expound and interpret the rule If two laws conflict with each other, the court must decide on the operation of each.”
Although Chief Justice Marshall’s opinion in Marbury extended to the United States the principles of judicial review first intimated in Bonham’s Case, judges, lawyers, and laypersons still debate the legitimacy of allowing un-elected (appointed) judges to invalidate legislation enacted by representative institutions in a democratic country
FURTHER READINGS Edwards, R.A 1996 “Bonham’s Case: The Ghost in the Constitutional Machine ” Denning Law Journal (annual): 63–90.
Trang 6collectively as the House of Commons, who were summoned merely to assent to royal will
It was not long, however, before the Com-mons realized that its approval carried a measure
of authority In 1309, the Commons granted a subsidy to King Edward II (1307–27) on condi-tion that he redress its grievances During the reign of Edward III (1327–77), Parliament asserted three claims that would be echoed with minor variation in the American colonies: Taxes assessed without approval from both houses of Parliament were void, legislation passed by only one house of Parliament lacked legal effect, and the Commons reserved the right to investigate and remedy any abuses by the royal administra-tion A century later, during the reign of Henry VIII (1509–47), the Commons asserted the power of the purse, arguing that all money bills must originate in its house
These claims, although fairly innocuous when originally asserted by the Commons, were interpreted by subsequent Parliaments to mean that no one could rule without the consent of Parliament, and royal officials who abused their power, including the ruler, could be impeached and removed from office When the English civil war known as the War of the Roses (1455–85) substantially depleted the ranks of the barons, the voice of the Commons grew louder as the representatives of the commoners were left to fend almost for themselves against a monarchical power that, culminating in the reign of James I (1603–25), claimed to be divine in origin and absolute in nature
The struggles between Parliament and the crown for authority over England in the seventeenth century were a prelude to the struggles between Parliament and the colonists for control over the American colonies in the eighteenth century The monarchy maintained that its power to govern England derived directly from God and thus overrode any earthly power, including that of Parliament and common law Parliament, on the other hand, maintained that“the people, under God, were the source of all just power, and that Parliament represented the people.”
Parliament and the monarchy waged battle
on three fronts: military, political, and legal
The military struggle for power began in 1642 when England again erupted into civil war
The political battles constituted a series of
muscle-flexing exercises conducted by Parlia-ment and the monarchy The Commons impeached several of the king’s top advisers and demanded redress of the grievances it summarized in the 1628 Petition of Right The monarchy, in turn, dismissed Parliament on a number of occasions, and attempted to govern without requesting revenue from the Commons These political struggles came to a crescendo when King Charles I (1625–49) and Thomas Wentworth, the commander of the king’s largest army, were tried, convicted, and exe-cuted for subverting Parliament and theRULE OF LAW The indictment against the king reads much like theDECLARATION OF INDEPENDENCE:
Whereas it is notorious, That Charles Stuart, the now king of England, not content with those many encroachments which his pre-decessors had made upon the people in their rights and freedoms, hath had a wicked design totally to subvert the ancient and fundamental laws and liberties of this nation, and in their place to introduce an arbitrary and tyrannical government; and that besides all other evil ways and means to bring this design to pass,
he hath prosecuted with fire and sword, levied and maintained a cruel war in the land against the parliament and kingdom, whereby the country hath been miserably wasted, the public treasure exhausted, trade decayed, thousands of people murdered, and infinite other mischiefs committed
During the sentencing phase of the trial, the president of the High Court of Justice instructed the king, in language that resonates through the U.S Constitution,“[T]he Law is your Superior,” and the only thing superior to the law is the
“Parent or Author of Law, [which] is the people
of England.”
In 1689 Parliament achieved victory in its constitutional struggle with the monarchy when William and Mary (1689–1702) agreed to govern England as king and queen subject to a bill of rights This English Bill of Rights, a forerunner to the U.S Bill of Rights, which was submitted to Congress exactly one hundred years later, declares that the monarchy’s “pretended power of sus-pending of laws or the execution of laws by regal authority without consent of Parliament is illegal.” It also guarantees the right of each English subject to“petition the king” for redress
of grievances, and acknowledges Parliament’s role
in“amending, strengthening, and preserving … the laws” of the country
Trang 7Although the English Bill of Rights ended
England’s seventeenth-century constitutional
struggle between Parliament and the monarchy,
America’s eighteenth-century constitutional
struggle with these two branches of government
had not yet begun By 1765 the pendulum of
power had swung fully toward Parliament,
prompting eminent English jurist SIR WILLIAM
BLACKSTONEto write that“[s]o long as the English
constitution lasts… the power of Parliament” is
“absolute,” “despotic,” and “without control.”
Because England had no written constitution
that constrained the legislative power of
Parlia-ment, “every act of Parliament was in a sense
part of the[English] constitution, and all law …
was thus constitutional.”
The American colonists soon discovered
that a legislative despot was just as tyrannical as
a monarchical despot The U.S Constitution
put an end to the notion of absolute power
resting with any one sovereign, by separating
the powers of government into three
branches—executive, legislative, and judicial—
and carefully delegating the powers of each
Although these safeguards against
government-run-amok were the product of the violent
American Revolution, they allowed for the
tranquil and uneventful integration of many
ordinary English legal principles into the U.S
system of justice, including earlyBANKRUPTCYand
welfare laws during the nineteenth century
FURTHER READINGS
Bailyn, Bernard 1992 Ideological Origins of the American
Revolution Enl ed Boston: Belknap.
Blackstone, William 1765 Commentaries on the Laws of
England Reprint, 2003 Clark, NJ: Lawbook Exchange.
Christenson, Ron 1999 Political Trials: Gordian Knots in the
Law New Brunswick, NJ: Transaction.
——— 1991 Political Trials in History: From Antiquity to
the Present New Brunswick, NJ: Transaction.
Landsman, Stephen 1983 “A Brief Survey of the
Develop-ment of the Adversary System.” Ohio State Law
Journal 44.
Levy, Leonard 1999 Origins of the Fifth Amendment: The
Right Against Self-Incrimination Chicago: Dee.
Palmer, Robert C 2002 Selling the Church: The English
Parish in Law, Commerce, and Religion Chapel Hill:
Univ of North Carolina Press.
Plucknett, T.F.T 1926 “Bonham’s Case and Judicial
Review ” Harvard Law Review 40.
——— 2001 A Concise History of the Common Law Clark,
NJ: Lawbook Exchange.
Slapper, Gary, and David Kelly 2006 English Law 2d ed.
London: Routledge-Cavendish.
Smith, George P., II 1966 “Dr Bonham’s Case and the
Modern Significance of Lord Coke ’s Influence.”
Washington Law Review 41.
Stoner, James R., Jr 1992 Common Law and Liberal Theory:
Coke, Hobbes, and the Origins of American Constitution-alism Univ Press of Kansas.
Thorne, Samuel 1938 “Dr Bonham’s Case.” Law Quarterly Review 54.
Trevelyan, George M 1988 A Shortened History of England.
New York: Penguin.
Wood, Gordon S 1998 The Creation of the American Republic Chapel Hill: The Univ of North Carolina Press.
Wormald, Patrick 2001 The Making of English Law: King Alfred to the Twelfth Century Oxford: Blackwell.
CROSS REFERENCES Becket, Saint Thomas; Clarendon, Constitutions of; Domes-day Book.
ENGLISH-ONLY LAWS Laws that seek to establish English as the official language of the United States
The movement to make English the official language of the United States gained momen-tum at both the state and federal levels in the mid 1990s In 1995 alone, more than five bills designating English as the official language of the United States were introduced in the U.S
Congress In September 1995 Representative John T Doolittle (R-Cal.) proposed an amend-ment to the U.S Constitution that would establish English as the official language of the United States (H.R.J Res 109, 104th Cong., 1st Sess., 141 Cong Rec H9670-04 [1995]) The proposed amendment states, in part,
The English language shall be the official language of the United States As the official language, the English language shall be used for all public acts including every order, resolution, vote or election, and for all records and judicial proceedings of the Government of the United States and the governments of the several States
Related legislation considered in the U.S
House of Representatives included the National Language Act of 1995 (H.R 1005, 104th Cong., 1st Sess., 141 Cong Rec H1967-04 [1995]), introduced by Representative Peter T King (R-N.Y.), and the Declaration of Official Language Act of 1995 (H.R 739, 104th Cong., 1st Sess., 141 Cong Rec H889-02 [1995]), introduced by Representative Toby Roth (R-Wis.) Roth’s bill would abolish section 203 of the VOTING RIGHTS ACT OF 1965 (42 U.S.C.A
§ 1973aa-1a), which requires bilingual ballots, and the federal Bilingual Education Office, which is funded through the Bilingual Educa-tion Act of 1968 (20 U.S.C.A §§ 3281 et seq
Trang 8[1988]) English-only advocates favor the elimi-nation of these programs, arguing that earlier immigrants to the United States learned English without such government help
In the U.S Senate, Senator Richard C
Shelby (R-Ala.) introduced the Language of Government Act of 1995 (S 356, 104th Cong., 1st Sess., 141 Cong Rec S2124-04[1995]) This legislation states, in part,
[I]n order to preserve unity in diversity, and
to prevent division along linguistic lines, the United States should maintain a language common to all people;… the purpose of this Act is to help immigrants better assimilate and take full advantage of economic and occupational opportunities in the United States; … by learning the English language, immigrants will be empowered with the language skills and literacy necessary to become responsible citizens and productive workers in the United States
By the end of 1995, more than 20 states had passed their own laws declaring English to be the official state language Most state English-only laws have been established since the mid 1980s, although Louisiana’s was enacted in
1812 Many of the laws are largely symbolic and lack an enforcement mechanism For exam-ple, the California measure, CA Const art 3, § 6 (West), a state CONSTITUTIONAL AMENDMENT ap-proved in 1986, simply states,
The Legislature and officials of the State of California shall take all steps necessary to insure that the role of English as the common language of the State of California is preserved
and enhanced The Legislature shall make no law which diminishes or ignores the role of English as the common language of the State
of California
Some versions of the proposed English Language Amendment would void almost all state and federal laws that require the govern-ment to provide services in languages other than English The services affected would include health, education and social welfare services, job training, translation assistance to crime victims and witnesses in court and administrative proceedings; voting assistance and ballots, drivers’ licensing exams, and AIDS-prevention education English-only laws apply primarily to government programs However, such laws can also affect private businesses For example, several Southern California cities have passed ordinances that forbid or restrict the use of foreign languages on private business signs English-only advocates have opposed a tele-phone company’s use of multilingual operators and multilingual directories, FEDERAL COMMUNI-CATIONS COMMISSION licensing of Spanish-language radio stations, and bilingual menus
at fast food restaurants
Those who oppose English-only laws point out thatNATURALIZATIONfor U.S citizenship does not require English literacy for people over 50, nor for those who have been in the U.S for 20 years or more Thus, there are many elderly immigrant citizens whose ability to read English
is limited, and who cannot exercise their right
to vote without bilingual ballots and other voter materials Moreover, these advocates maintain that bilingual campaign materials and ballots foster a more informed electorate by increasing the information that is available to people who lack English proficiency
Advocates of English-only legislation argue that having one official language will serve as a unifying force in the United States They point to the findings of the 1990 census that 32 million U.S citizens live in a non-English-speaking household and that of these, 14 million persons
do not speak English very well In a 1995 Labor Day address to theAMERICAN LEGIONConvention
in Indianapolis, printed in 141 Cong Rec E 1703-01 (1995), U.S Republican presidential candidate and Senate Majority Leader Bob Dole,
of Kansas, echoed this unification theme, stating,
[I]f we are to return this country to greatness,
we must do more than restore America’s
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PER-MISSION OF GALE, A
PART OF CENGAGE
LEARNING.
States that Enacted English-Only Laws, 2009
“English Only” States
Alabama (1990) Alaska (1998) Arizona (2006) Arkansas (1987) California (1986) Colorado (1988) Florida (1988) Georgia (1986 & 1996) Hawaii (1978) Idaho (2007) Illinois (1969) Indiana (1984) Iowa (2002) Kansas (2007) Kentucky (1984)
SOURCE: U.S English, Inc.
Louisiana (1812) Massachusetts (1975) Mississippi (1987) Missouri (1998) Montana (1995) Nebraska (1920) New Hampshire (1995) North Carolina (1987) North Dakota (1987) South Carolina (1987) South Dakota (1995) Tennessee (1984) Utah (2000) Virginia (1981 & 1996) Wyoming (1996)
Trang 9defenses We must return as a people to
the original concept of what it means to be
American… For example, English must be
recognized as America’s official language…
Lacking the centuries-old, primal bonds of
other nations, we have used our language, our
history and our code of values to make the
American experiment work… These are the
forces that have held us together—allowing us
to… absorb untold millions of immigrants
while coming the closest any country ever
has to the classless, upwardly mobile society of
our ideals
Members of U.S English, an advocacy group
founded in 1983, claim that English should be
the primary, but not exclusive, language of
government They believe that all official
docu-ments and proceedings should be in English, but
would make exceptions for the use of other
languages in such places as hospitals, emergency
rooms, police stations, and tourist sites
Actual-ly, a 1995 study of government print
commu-nications, conducted by theGENERAL ACCOUNTING
OFFICE, found that only a small percentage were
in a language other than English The study,
requested by advocates of English as the official
language of the government, examined titles
released by theGOVERNMENT PRINTING OFFICEand
an agency of the U.S.COMMERCE DEPARTMENTover
a five-year period Of approximately 400,000
titles examined, only 265, or less than 0.06
percent, were in a foreign language The study
excluded foreign language communications
issued by the DEPARTMENT OF STATE and the
DEPARTMENT OF DEFENSE, which most English-only
advocates consider to be a legitimate use of
languages other than English
Critics argue that English-only laws are a
hostile reaction to the ongoing influx of
immigrants to the United States In a September
1995 address to the Congressional Hispanic
Caucus, President BILL CLINTON attacked the
English-only movement, stating,
Of course English is the language of the United
States… That is not the issue The issue is
whether children who come here, while they
are learning English, should also be able to
learn other things The issue is whether
American citizens who work hard and pay
taxes and who haven’t been able to master
English yet should be able to vote like other
citizens
In May 1995 Governor Parris N Glendening,
of Maryland, vetoed a bill passed by the state
legislature that would have made English the
official language of state government He said the legislation’s anti-immigrant sentiment would divide the state’s citizens In Arizona, critics of a constitutional provision making English the official language sued the state, the governor, and other state officials to stop its enforcement
In Yniguez v Arizonans for Official English,
69 F.3d 920 (1995), the U.S Court of Appeals for the Ninth Circuit upheld a lower court’s ruling that the provision, which bars state and local employees from using any language other than English in performing official duties, violates free speech rights and that it is unconstitutionally overbroad This ruling was later overturned, Arizonans for Official English v
Arizona, 520 U.S 43, 117 S.Ct 1055, 137 L
Ed.2d 170 (1997) The case began in October
1987, when an organization called Arizonans for Official English began a petition drive to amend the Arizona Constitution to prohibit the govern-ment’s use of languages other than English The drive resulted in the 1988 passage of Article XXVIII of the Arizona Constitution, titled English as the Official Language Article XXVIII provides that English is the official language of the state of Arizona, and that the state and its political subdivisions—including all government officials and employees performing government business—must act only in English
When the article was passed, Maria-Kelley Yniguez, a Latina, was employed by the Arizona Department of Administration, where she handled MEDICAL MALPRACTICE claims She was bilingual in Spanish and English and commu-nicated in Spanish with Spanish-speaking clai-mants and in a combination of English and Spanish with bilingual claimants Because state employees who fail to obey the Arizona Constitution are subject to employment sanc-tions, Yniguez stopped speaking Spanish on the job immediately upon passage of Article XXVIII, because she feared that she would be disciplined In November 1988, Yniguez filed an action against the state of Arizona and various state officials, including the governor and the attorney general, in federal district court She sought an injunction against state enforcement
of Article XXVIII and a declaration that the provision violated the First and Fourteenth Amendments to the U.S Constitution, as well
as federal CIVIL RIGHTS laws The district court interpreted the provision as barring state officers and employees from using any language other than English in performing their official duties,
Trang 10except with certain limited exceptions, and ruled that it infringed on constitutionally protected speech in violation of theFIRST AMENDMENT Arizona voters passed an English-only law as
an Amendment to the Arizona Constitution adopted through a petition drive that
culminat-ed in a general election in November 1988 The Amendment provides that English was the official language of the State of Arizona, and that the State and its political subdivisions must
“act” only in English In April 1998 the Arizona Supreme Court held that the amendment violated the First Amendment to the U.S
Constitution in that it adversely impacted the constitutional rights of non-English speaking persons regarding access to their government, and that it limited political speech of elected officials and public employees The court also held that the amendment violates the EQUAL PROTECTIONClause of theFOURTEENTH AMENDMENT
to the United States Constitution in that it unduly burdens core First Amendment rights of
a specific class without materially advancing a legitimate STATE INTEREST Plaintiffs in the case were four elected officials, five state employees, and one public school teacher All plaintiffs are bilingual and regularly communicated in both Spanish and English as private citizens and during the performance of government busi-ness The court noted that although 21 states and 40 municipalities have official English statutes, most of those provisions are substan-tially less encompassing and less proscriptive than Arizona’s Amendment In mid January
1998, the U.S Supreme Court denied review of the case, then known as Ruiz v Hull, 191 Ariz
441, 957 P.2d 984 (1998)
Utah became the 26th state to declare English
as its official language, in November of 2000, when voters approved a measure that lawmakers had failed to pass on three previous occasions
That law provided for several exceptions, allow-ing languages other than English, for example, when required by law, for public health and safety, and in public education Concerned that the measure would be read generally to prohibit the government and the people from communi-cating in any language other than English, the AMERICAN CIVIL LIBERTIES UNIONof Utah filed a suit
on behalf of elected and appointed officials, government employees, nonprofit organizations, and an individual PLAINTIFF challenging the constitutionality of the initiative After a trial in January 2001, the Utah district court issued a
15-page ruling that dramatically limited the law According to the court, in order to pass constitutional muster, the law cannot be read to prohibit government employees and elected officials from communicating in languages other than English Similarly, the court concluded that the law’s exceptions must be broadly construed to permit the government to provide essential services, including driver’s license exams, in languages other than English
On April 24, 2001, the U.S Supreme Court,
by a 5–4 vote, rejected a legal challenge to Alabama’s Official ENGLISH LAW, which was a tremendous victory for Official English In Sandoval v Alexander 532 U.S 275, 121 S.Ct
1511, 149 L.Ed.2d 517 (U.S., Apr 24, 2001) (NO 99-1908), Sandoval claimed that because
it was a recipient of federal financial assistance, the Alabama Department of Public Safety was subject to Title VI of the Civil Rights Act of
1964 Because Section 601 of Title VI prohibits discrimination based on race, color, or national origin, Sandoval brought aCLASS ACTION suit to enjoin the department from administering state driver’s license examinations only in English Sandoval argued that the English-only policy violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin The Court disagreed and ruled that there was no private right to sue the state under the federal anti-discrimination law The majority, led by JusticeANTONIN SCALIA, held that private citizens were never authorized to sue under the title’s disparate-impact regulations The Court de-clared that Congress only prohibited intentional discrimination when it wrote Title VI, but left it
up to the federal government to apply the discrimination ban to practices that have unin-tended discriminatory effects Thus, unless Sandoval could prove that the Alabama driver’s test intentionally discriminated against her, she had no grounds to sue the state
FURTHER READINGS Adams, Karen L., and Daniel T Brink, ed 1990 Perspectives
on Official English: The Campaign for English as the Official Language of the USA New York: Mouton de Gruyter.
Stritikus, Tom 2002 Immigrant Children and the Politics of English-Only: Views from the Classroom New York: LFB Scholarly.
Tatalovich, Raymond 1995 Nativism Reborn?: The Official English Language Movement and the American States Lexington, KY: Univ Press of Kentucky.