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

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF LAW

FACULTY OF INTERNATION LAW

PHẠM NGỌC TƯỜNG VÂN

THE PRINCIPLE OF SEPARATION OF POWERS

IN THE UNITED STATES LEGAL SYSTEM

BACHELOR THESIS MAJOR: INTERNATIONAL LAW

SPECIALTY SUPERVISOR: Ph.D NGUYỄN THỊ BÍCH NGỌC LANGUAGE SUPERVISOR: Ph.D ĐỖ MAI HẠNH

HO CHI MINH CITY - 2011

I protest that this dissertation is my own study, with the guidance of the supervisor The information other than

my idea presented in this dissertation is fully cited I would bear full responsibility for my protest

The dissertation‟s author

Phạm Ngọc Tường Vân

INTRODUCTION 4

CHAPTER 1: FUNDAMENTALS OF THE UNITED STATES LEGAL SYSTEM 11

1.1 The founding history of the United States 11

1.1.1 The immigration from Britain and the foundation of the United States 13 1.1.2 Characteristics of the colonies 16

1.1.3 The revolution for independence and the establishment of the United States 19 1.1.4 Drafting and ratifying context of the Constitution of the United States 22 1.2 Features of the United States legal system 25

1.3 Conclusion 36

CHAPTER 2: THE PRINCIPLE OF LIMITING THE LEGAL 38

POWER IN THE UNITED STATES LEGAL SYSTEM 38

2.1 The basic division of the legal power between the states and the federation 38

2.1.1 The organic power of the states 38

2.1.1.1 Legislative power 38

2.1.1.2 Judicial power 42

2.1.2 The limitation in power of the federal government 43

2.1.2.1 Legislative power 43

2.1.2.2 Judicial power 51

2.1.3 Concurrent federal and state powers 51

2.2 Features of the principle of separation of powers in the United States legal system 54

2.2.1 The relationship between federal and state legislative power 54

2.2.2 The relationship between the multinational agreements and domestic laws of the United States 58

2.2.3 Conflict of law in the United States legal system 63

2.2.4 Experience lessons for Vietnam from studying principles of legal competence limitation in the United States legal system 69

2.3 Conclusions 71

AFTERWORD 73

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INTRODUCTION

1 The neccessity of doing research

After a 20-year hiatus of severed ties, President Bill Cliton announced the formal normalization of diplomatic relations with Vietnam on July 11,

1995 Subsequent to President Clinton‟s normalization announcement, in August 1995, both nations upgraded their Liaison Offices opened during January 1995 to embassy status1 This summer, we celebrates 16thanniversary of the normalization of diplomatic relations between two countries On the occasion of this important milestone, as a law student, the author thinks a research about the United States legal system must be conducted

The relationship between the United States and Vietnam has become deeper and more diverse in the years since the political normalization The two countries have broadened their political exchanges through regular dialogues on many fields, especially in legal field There have been a number of books on the United States legal system established in Vietnam with the friendship of the people of the United States of America Although most of the books are translated books, causing some difficulties for Vietnamese readers because of translation, but the books have helped Vietnamese scholars in researching the United States legal system The author was fortunate to be able to read some of these books, along with studying an overview of the United States legal system at Ho Chi Minh

1

Kurt Campbell, State’s Campbell at U.S.-Vietnam 15th Anniversary Reception, available at

http://www.america.gov/st/texttrans-english/2010/July/20100716114120su9.505862e-02.html

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University of Law and therefore has a excited passion for researching the Constitution of the United States

Based on the above matters, the author decided to choose the topic

“The principle of separation of powers in the United States” for the author‟s dissertation

2 The purpose of the dissertation

Researches on the United States legal system in general and on the principle of separation of powers in the United States have been conducted globally since the United States proved for the entire world its success by applying this principle However, in Vietnam, there have been not much documents have concerned this matter Consequently, my dissertation aims at providing readers an overview on the United States legal system and bringing more understanding of features of the Constitution of the United States In short, my dissertation expresses a desire to build a legal system in which the freedom of individuals are kept and the social order is maintained, fundamental principle to enrich the country more wealthy and prosperous

3 The limitations of the dissertation

Due to time and material limitations, the author has certain limitation in some issues which are the objects of the study as follows:

- Firstly, this dissertation will focus on analysing the principle of separation of powers in the United States legal system Consequently, within the scope of the dissertation, other important issues of the United States legal system that require independent

- Thirdly, besides a general introduction about the principle of separation of powers in the United States, other contents that are out

of the scope of the principle of separation of powers between federal government and state government are limited, such as one layer of government – local government

- Finally, the author will discuss and analyze the historical context of forming this principle, the content and the meaning of this principle

in the United States legal system, without mentioning particular major laws of each government

4 The methodology of the dissertation

The basic method used in the process of research this dissertation is materialistic dialectics On that base, the author will combine different legal methods as follows:

2 System set forth in the United States Constitution which devides governing power between Legislative, Executive and Judicial branches Each brach exercises some form of authority over the others, thereby

balancing power across many inviduals and institutions James Wilson, American Government: Institutions

and Policies, 7th ed., Boston, Houghton Mifflin, 1998, p 27

7

- Synthetic method: To achieve the purpose of this dissertation, these collective documents include information on media, paper and electronic publication, websites of the Library of Congress American Memory, the White House, USInfo, National Conference

of State Legislatures and et cetera Books on the principle of separation of powers in the United States, international, regional and domestic legal instruments and relevant case laws are also necessary materials

- Analytical method: To clarify the fundamentals as well as to access the realities and to draw suitable suggestions to the problems from the logical thoughts

- Comparative method: To study Vietnamese and American state form and identify their similarities and differences in the relevant fields Furthermore, to try to know the background and explain reasons of those similarities and differences

To accomplish this dissertation, several methods have been employed Three most commonly used methods – synthetic, analytical and comparative – are applied with coordinate

5 The literature review of the research

In Vietnam, although there have been a number of research works on the United States, the researches on the principle of separation of powers between federal government and state government in United States are much less than those on the principle of separation of powers between three branches of the government (which are legislative, executive and judicial branches) According to the author‟s research, besides academic articles of certain scholars such as Prof Ph.D Le Van Cam, Assoc Prof

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Ph.D Pham Duy Nghia, or Assoc Prof Ph.D Truong Dac Linh in some legal journals such as State and Law Review, Judicial Science Review or Jurisdiction Review, there are remarkable books as follows:

- “Learning American law in the context of that Vietnam joining in regional and global economic” of Assoc Prof Ph.D Pham Duy Nghia (2001)3: the work has profound analysis, especially on practical issues of economic and social conditions in Vietnam when Vietnam joining in the globalization and challenges that Vietnam will have to face in fiercely competitive, dynamic market

- “Things to know about American law” of Pham Minh (2003)4: This book gives readers an overview about American law, including the origin of American law, the history of forming the United States legal system and essential issues of American law at a modern society

- “How was American Constitution made out” of Nguyen Canh Binh (2009)5: Along with a special passion of Constitution, Nguyen Canh Binh has provided a comprehensive picture of the birth of the United States Constitution, as an explanation for many people who are still wonder how the United States Constitution can be in force until today and seem to endure its validity in further future

In respect of dissertation, there are certain issues concerning the United States Constitution, such as, how the Constitution was made, a content and meaning of the Constitution Among them, the book “How was American

3 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

4

Phạm Minh, Những điều cần biết về pháp luật Hoa Kỳ, nhà xuất bản Lao động, 2003

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

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made out” of Nguyen Canh Binh (2009) is the most remarkable one This book does intensive research on the United States history and government, with the focus on Convention Congress6 And through the Convention Congress with many heated debates between fifty five delegates, who represented a wide range of interests, backgrounds, and stations in life, the Constitution of the United States was given a birth7 Additionally, this book also gives readers a general knowledge to understand why the Constitution gave a prominence to a compromise and social contract

However, by the author‟s research, the principle of separation of powers in the United States legal system between federal government and state government still has not gotten much consideration Consequently, this dissertation will focus on researching the principle that mentioned above to acquire valuable experience of the United States to enrich an effectiveness of operation of Vietnamese government

6 The structure of the dissertation

This dissertation is divided into two main chapters:

- Chapter 1: Fundamentals of the United States legal system

- Chapter 2: The principle of limiting the legal power in the United States legal system

6

Convention Congress was organized on Friday, May 25, 1787 in Pennsylvania, which originally designed to provide a framework for governing 4 million people in thirteen very different states along America‟s Atlantic

coast Richard C Schroeder, Outline of United States Government, Office of International Information

Programs, U.S Department of State, 2000, p 6

7

Richard C Schroeder, Outline of United States Government, Office of International Information Programs,

U.S Department of State, 2000, p 7

10

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THE PRINCIPLE OF SEPARATION OF POWERS

IN THE UNITED STATES LEGAL SYSTEM

CHAPTER 1: FUNDAMENTALS OF THE UNITED STATES

LEGAL SYSTEM

1.1 The founding history of the United States

The United States of America has always been the land that people from all over the world desire to arrive at The purpose of each person coming

to the United States may be completely different, but they all share the same

concept that "this is the land of paradise 8 " Humane policies of social

security, a virtually government-sponsored public education, a health care system with budget exceeding that of some other country in the world are the factors that contribute to the admiration of those who are trying to find a promising land for themselves

The success of the United States is still a question to many With only 250,000 people in 1690, the nation has proudly risen to the position of a world economic superpower in the 20th – 21st centuries and is still maintaining that status9 This can be partly explained with a profound understanding of the United States foundation Despite the fact that the legal

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,

2005, p.24

to understand about the cause of a formation and a nature of the principle of separation of powers in the legal system of the United States through the historical context of the foundation of the United States and the legal system

The formation and development of each legal system has its own characteristics, and exploring the legislation‟s nature is indispensable for determining which factors directly affect to the formation of the legal system The formation of the British legal system closely associated with the Norman‟s victory and the reformation in administration, military and judicial with a purpose to uniform the nation and the law The French law is the product of the bourgeois revolution and is the successor to the achievements

of the pre-revolutionary period‟s law, the transition period With the United States legal system, understanding the law‟s nature is inseparable from the

10 The term “common law” may be used in at least three other senses The first use is to refer to the law that

is laid down by the courts rather than by the legislatures The second use is to refer to the body of rules applied by the common law courts as distinguished from the special courts of equity or admiralty The third use of the term “common law” is to refer to this country as a “common law” country, whose law is based on English law, as opposed to a “civil law” country, whose law is derived from the Roman law tradition This is

the sense in which these terms are used in this dissertation J Hurst, The Growth of American Law: The Law

Makers, 1950

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

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analysis of the foundation of the United States, that in which, the most important factor is the immigration of the Europe, especially the Britain – the origin of the United States population Understanding these factors allowing United States to answer the question: why the nature of the people and the law

of the United States has a huge difference from the England, while the United States is originated and derived the law mainly from the England

1.1.1 The immigration from Britain and the foundation

of the United States

The ancestors of the United States were not only the British residents to establish their first colony at Jamestown in 160712, but were also people who crossed the sea to this new continent around 30,000 BC13 Once in Alaska, it would take these first North Americans thousands of years to work their way through the openings in great glaciers in the south (to what is now the United States of America) No adequate comprehension of the American legal system

is possibly obtained without an understanding of the way these individual colonies were welded together into a single nation under a sustainable Constitution with 7 articles and 27 amendments, , which has withstood the stress of diversity and the strain of change from 1789 until today

The first Europeans to arrive in North America – at least the first for whom there is solid evidence – were Norse14 The process of migration from Europe to America began when the Portuguese discovered America, and notably the Portugal, Spain, Sweden, Netherlands but mainly for the purpose

of exploiting the resources such as gold, silver The groups of France,

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

2005, pp 12

13

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

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

14

Germany, Scotland, Nothern Ireland and the African slaves also immigrated

to North America England emigrated later, until early 17th century, the first settlment was formed15 But the exodus of the England played a decisive role for the birth of the United States nation and legal system

The migration into America from these countries also have differences

in time, purpose and the composition of migration And this is the factor directly affect to the origins and characteristics of the United States residents However, among the migrant‟s countries, the Britain played the most important role for the foundation of the United States With the political, economic and law conditions in the 17th century, the Bitish immigrated into America with the purpose of finding new settlements for themselves Immigrants from other European countries came early to America to exploit natural resources which is extremely abundant in this fertile land Because with the purpose of finding new settlements for themselves, the British saw North America as their new home, so they actively built the necessary infrastructure for permanent residence life The composition of British immigants is diverse, they were merchants, artisans, plantation owners, small farmers, pioneers, slaves, servants and prisoners But the core of the country was the middle class which consisted of farmers, tradespeople, mechanics, sailors, shipwrights, weavers, carpenters and a host of others Most European emigrants crossed the border to earn a living, to escape

political oppression, to avoid the religious and political persecutions, the rigid economic patterns of the Old World or simply to enjoy the opportunities which were beyond their reach at home The English

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

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

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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 continuously19

By 1690 the American population had risen to a quarter of a million From then on, it doubled every 25 years until, in 1775, it numbered more than 2.5 million20 The settlers had many reasons to go to America and the result of the immigration is the establishment of thirteen colonies

1.1.2 Characteristics of the colonies

As indicated above, the residential areas were mainly British, under the management of the British Crown but the immigration‟s purposes, immigrant‟s qualities, economic, political and cultural conditions of North America had formed the compromise and contractual ideology when founding the nation and the law of the United States – the opposite ideology to monarchical tyranny of Britain at the time

North America was a very large area with vast, virgin forests extending nearly 2,100 kilometers along the Eastern seaboard This land provides its

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residents with a rich source of game and firewood as well as abundant raw materials used to build houses, furniture, ships and profitable items for export21 In the land there are also majestic rivers such as the Kennebec, Hudson, Delaware, Susquehanna, Potomac and numerous others which link the lands between the coast and the Appalachian Mountains to the sea22 The new continent was remarkably endowed by nature so settlers had many choices for finding a place to build a home Three well-known regional groupings of colonies were New England, middle colonies and southern colonies Due to its enormous territory, each colony was far and away from the others Their geographical locations were also different, making each colony‟s economic and social structure greatly independent from one another Each colony issued their own currency and had private commercial customs Thus, they could hardly exchanges goods23 The exchange was more difficult because transportation between regions was under developed and largely rudimentary An objectively independent nature led to an independent thought with Britain and other residential areas More importantly, when the economic developed strongly, independent nature reinforced an ideology that the equality, freedom can only be guaranteed through a compromise between the settlements in all matters relating to the integration of the immigrants This can be considered as one of the reasons explaining the practical ground of the principle of separation of powers in the United States legal system

Besides the large difference in geographic location, residents of thirteen colonies had different politics as well By impacting European cultural

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thought24, in addition to the purpose of pursuing freedom, finding chances to practice the freedom, equal ideology that was developing straightly, so each colony had a distinct form of management, had their own legislatures that were formed from the basis of negotiation and compromise, under the control

of the people Besides that, the influence of social contractual ideology and preventing the abuse of power from a executive body, the immigrants were awarded in their Constitution that: resolving any dispute must be based on agreements, nobody could stand above any other person One‟s personal liberty was limited to the framework of others Although Americans had a restricted experience about federalism, they had considerable expertise in the art of self-government25 It can be said that the political independent confirming for the statement: the compromise and social contractual thought

is the indispensable foundation of the United States nation and law In regards

to law, the impact of European cultural ideology, a desire to have political freedom and to maintain equality in the community had promoted the colonists to enact their own Constitution Most of immigrants grasped the ideologies of Renaissance culture, which stated that there must be the unity of law and law must be separated from religion The law must be the product of human, not by a supernatural entity The power to legislate had been conferred upon the people in colonies themselves, and each had its own legislature with at least one elective branch and with considerable control over internal affairs, creating an enforceable and uniform law People put the law above all else, obeyed the law, gave the law the highest position in the society Besides that, the law must be the only tool to create a fair and stable

24 The majority of immigrants were Europeans so they influenced deeply European culture

25

Richard C Schroeder, Outline of United States Government, Office of International Information Programs,

U.S Department of State, 2000, p 8

19

society by popular demand, and this was the way to convince people to make and unify the law26 The law sought to protect the liberty of the individual in the society, giving them rights to perform all activities that were not prohibited by the law

Until 1777, ten of thirteen colonies (which then had became thirteen states of the United States) had enacted their own Constitution, forming the foundation of the statue since the outset of founding the nation Moreover, settlements also applied a secondary kind of law, English common law The legal ground was given in the Carlwin‟s case, which held that the English common law needed to be applied in North America27 However, when applying the English common law in North America, the court just applied

“in degree to which its regulations in agreement with the conditions of the land”28

As shown, from the outset, North America had two types of law: the English common law and the statue Constitution of the settlements

1.1.3 The revolution for independence and the establishment of the United States

As the Crown had signed a Decree which established sovereignty over the coastal area along the length of North America29, residential areas were considered colonies of the Crown and they were obliged to pay taxes to the Crown There were two types of tax, namely, income tax and estate tax The Crown taxed for the purpose of managing colonies, but the far distance between Britain and North America made the management indirect and

26

Friedman, Lawrence M., American Law: An Introduction, 2nd ed., New York, New York: W.W Norton,

1998, p.23

27 The precedent was held in Carlwin‟s case in London in 1608 Fine, Toni M., American Legal Systems: A

Resource and Reference Guide, Cincinnati, Ohio: Anderson Publishing, 1997, p 47

28

Réne David, Những hệ thống pháp luật chính trong thế giới đương đại, nhà xuất bản TP.HCM, p 295

29 Review this matter on p.5, paragraph 1, line 13

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increasingly weak The English government was in lack of controlling influence in settlements So, the colonies considered themselves chiefly as common wealths or states, much like England itself, having only a loose association with the authorities in London The colonists, inheritors of the long English tradition of the struggle for political liberty, incorporated concepts of freedom into Virginia‟s first charter30

They believed that they had a right to participate in their own government31 From then on, the free men of the colonies had a voice in legislation affecting them And by the time, this right developed strongly and became to the self-government

In the 18th century, a war to scramble colonies broke out between Britain and France After losing the war to Britain, with a burning desire to avenge, France decided to actively support the revolution of colonies Colonies, which firmly economic developed and associated with being independent, had extremely strong reactions against the crown administration while the Crown announced they would control the entire coastal and forbade the trade exchange between North America and other countries Moreover, the British government granted East India Company a monopoly on all tea exported to colonies and also permitted it to supply retailers directly by passing colonial wholesalers This policy was the foundation for the protectionism in this land in the future32

30

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

2005, pp.29

31 In 1618, the Virginia Company issued instructions to its appointed governor providing that free inhabitants

of the plantations should elect representatives to join with the governor and an appointive council passing

ordinances for the welfare of the colony 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

32 Protectionism is the economic policy of restraining trade between states through methods such as tariffs on imported goods, restrictive quotas, and a variety of other government regulations designed to discourage

imports and prevent foreign take-over of domestic markets and companies Jagdish Bhagwati, CEE:

Protectionism, Conciese Encyclopedia of Economics, Library of Economics and Liberty, ed.2008

21

At the suggestion of the Virginia House of Burgesses, colonial representatives met in Philadelphia on September 5, 177433 “to consult upon the present unhappy state of the Colonies”, to build the idea of forming the independent nation for the colonies and to form the army In 1775, with a strong, independent politics and economy as well as the French critical support34, the colonies had all necessary and sufficient condition to lead the American Revolution toward victory However, the termination of a diplomatic relationship with Britain would mean economic blocked Colonieshad lost the advantages derived from participating in the British mercantile system Nevertheless, the success of the Revolution gave Americans the opportunity to give legal form to their ideals

On July 4, 1776, the Declaration of Independence was adopted by the Second Continental Congress, declaring “That these United Colonies are, and

of right ought to be, free and independent states …”35

The Declaration of Independence did not only announce the birth of a new nation, but also set forth a philosophy of human freedom that would become a dynamic force throughout the entire world It determined that the state of the immigrants would be the federal state and had the official name “the United States of America”36

After declaring independence, the fledgling nation involved in the war to preserve the nascent independence until 1783 and ended with the

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

1787, Boston, Massachusetts: Little Brown, 1986

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Treaty of Paris signed between the United States and Britain The treaty recognized all rights of the old thirteen colonies, which at the time had become new thirteen states

The desire that expressed the ideology of liberal democracy has led the way for thirteen colonies went to carry the revolution for independence The Revolution was successful, formed a new nation for the settlers and created the ethos of the United States nation and law

1.1.4 Drafting and ratifying context of the Constitution

of the United States

In 1777, the Continental Congress adopted the “Articles of

Confederation and Perpetual Union,” the first legal document of the United

States The Articles of Confederation was the first serious attempt at a federal union, determining a mechanism, a jurisdiction of the federal government, but there was no provision for a separate national executive or judiciary Although it was ratified by all the states and went into effect in 1781, the federal government still had no authority over levy taxes nor authority to regulate interstate or foreign commerce and federal budget, to ensure state compliance with treaties, to create a sound common currency, or to adjust the federal developmental problems In other words, the Articles of Confederation did not create the necessary power for the operation of federal government According to George Washington37, thirteen states just were

37 George Washington (1732 – 1799): was the dominant military and political leader of the new United States

of America from 1755 to 1799 He led the American victory over Great Britain in the American Revolutionary War as command-in-chief of the Continental Army from 1775 to 1783, and he presided over the writing of the Constitution of the United States in 1787 The unanimous choice to serve as the first President of the United States from 1789 to 1797, Washington presided over the creation of a strong, well- financed national government that stayed neutral in the wars raging in Europe, suppressed rebellion and won acceptance among Americans of all types His leadership style established many forms and rituals of government that have been used ever since, such as using a cabinet system and delivering an inaugural

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linked “by a rope of sand”38

In fact, the Articles provided only for a very loose union of thirteen independent nations

In addition, when the United States gained independence, it must bear

an economic crisis, which were a comprehensive and serious consequence of the war and a result from trade blockade with Britain and the West Indies (the Caribbean islands)39 Moreover, at the time there were no interstate trade exchanges because of the British colonial ruling policy and the sparse transportation system The lack of a common currency led to the breakdown

of trade activities between thirteen states as well as between the states and other countries40 Farmers who fell in a series of debt were at risk of foreclosure Economic difficulties after the war prompted calls for change Federal State recognized that the lack of a common mechanism on trade and finance was extremely dangerous for the existence of any country because there would be no gain without trade

The difficulty did not stop there The social instability caused by looting happened in many places and people tended to resolve conflicts with weapons The economic crisis as mentioned above and also the social unrest had made the Americans began to doubt the Confederation But they feared for the risk of re-occupation of the British Crown if they split up, and decided

to keep the national government Awareness of the risk of breaking a federal form, the politicians of the United States has maintained and strengthened the

address Washington is usually regarded as the “Father of his country” Hofstra, Warren R., George

Washington and His Virginia Backcountry, ed., Madison House, 1998, p 16

38

Richard C Schroeder, Outline of United States Government, Office of International Information Programs,

U.S Department of State, 2000, p 7

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

2005, p 69

40

Brinkley, Alan, Nelson W Polsby, Kathleen M Sullivan, The New Federalist Papers: Essays in Defense of the Constitution, New York, New York: Norton, 1997, p 45

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nation through the publication of articles on federal government41, and really more important was to organize the Constitution Congress for the purpose of creating a legal mechanism for the truly federal state Constitutional Convention, signed in Philadelphia in May 1787, was really impressive Fifty five delegates chosen to participate in the Convention were experienced in managing colonies and the states They were knowledgeable about the history, the law and the political theory Most were very young, except for Benjamin Franklin42, who at the age of 81 was the oldest delegate and also the most erudite attended the Constitutional Convention in 1787 The Convention had been authorized merely to draft amendments to the Articles of Confederation However, James Madison43 later wrote, the delegates “with a manly confidence in their country”, threw the Articles aside and went ahead with the building of a whole new form of government

A draft incorporating in a brief document the organization of the most complex government ever devised, one that would be supreme within a clearly defined and limited sphere Thanks to the dedication for a better government of the American people, delegates were keenly aware of the need

41

The Federalist Papers is the most important work of political philosophy and pragmatic government ever written in the United States It has been compared to Plato‟s Republic, Aristotle‟s Politics and Thomas Hobbes‟ Leviathan It was largely the product of two young men: Alexander Hamilton of New York, age 32,

and James Madison of Virginia, age 36, who wrote in great haste – sometimes as many as four essays in a single week An older scholar, John Jay, who named later as first chief justice of the Supreme Court,

contributed five of the essays Richard C Schroeder, Outline of United States Government, Office of

International Information Programs, U.S Department of State, 2000, p.34

42 Benjamin Franklin (1706 – 1790): scientist, inventor, writer, newspaper publisher, city father of Philadelphia, diplomat, and signer of both the Declaration of Independence and the Constitution Franklin embodied the virtues of shrewd practicality and the optimistic belief in self-improvement often associated

with America itself Bureau of International Information Programs, Outline of United States History, U.S

Department of State, 2005, p.43

43

James Madison (1751 – 1836): fourth President of the United States, is often regarded as the “Father of the Constitution” His essay in the debate over ratification of the Constitution were collected with those of Alexander Hamilton and John Jay as The Federalist Papers Today, they are regarded as a classic defense of republican government, in which the executive, legislative, and judicial branches check and balance each

other to protect the rights and freedoms of the people Bureau of International Information Programs, Outline

of United States History, U.S Department of State, 2005, p.43

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for a structure of government that would work not only in their age but for generations to come44 They agreed to compromise that the Constitution must have four following principles: first, the Constitution set up must ensure the principle of separation of powers with separate legislative, executive, and judiciary branches Each power was checked by the others Second, the functions and powers of the national government – being new, general and inclusive – had to be defined and stated, while all other functions and powers were to be understood as belonging to the states Third, the Constitution should not regulate human rights, economic, cultural and social rights Fourth, prescribing the federal jurisdiction cannot overwhelm individual rights45

The Constitution of the United States is a product created by human, therefore the Constitution itself is not really the quintessence of perfect beauty Despite its amendments, the Constitution probably still contains flaws that will become evident in the future period However, two centuries of growth and unrivaled prosperity have proven the foresight of the fifty five men who worked through the summer of 1787 to lay the firm foundation of American government46

1.2 Features of the United States legal system

The foundation of the United States law closely associated with the founding of the nation Just as there was no uniform evolution of political organization in the colonies, there was no uniform growth of colonial law The same diversity as to extent of crown control, date of settlement, and

44

Richard C Schroeder, Outline of United States Government, Office of International Information Programs,

U.S Department of State, 2000, p 10

45 Richard C Schroeder, Outline of United States Government, Office of International Information Programs,

U.S Department of State, 2000, p 20

46

Richard C Schroeder, Outline of United States Government, Office of International Information Programs,

U.S Department of State, 2000, p.10

26

conditions of development resulted in thirteen separate legal systems, each with its distinct historical background A few states, notably Louisiana, still show the imprint of such origins, and the civil law institution of community property can be found in eight states today47

Basically, the law of the United States was the selective adoption of English common law, adopted consistently with characteristics of the land and people of North America at the time For over two centuries of establishment and development, American society today is no longer familiar

to the society of thirteen colonies with nearly three million inhabitants, even different from English society The lifestyle, thinking, or economic conditions posed diverse problems than English community

Due to the differences in founding and nature of the nation and the law, American law has some features in comparison to the English common law: first, American law was derived and adopting from the English common law; second, American law includes the federal law and the state law; third, American law is uniform; fourth, common law applied in America is more flexible than Britain; and finally, in the United States legal system, the Constitution is considered as “a supreme Law of the Land”48

First, the author mention about the origin of of law the United States, and the process of adopting the English common law Having settled in the territories with no footsteps of civilization, the British people brought the common law with them Thus, the colonies adopted this form of law because there was no other

47

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

p.6

48 Article VI, The Constitution of the United States, stated that: This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in Constitution or Laws of any State to the Contrary notwithstanding

the Commentaries on the Law of England, a work of Sir William Blackstone51

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had been widely read in America His theory had provided the common law with a orderly and compelling modern presentation, while previously it was only accessible through thousands of cases in the report about the law and in the research of old and outdated institutions Blackstone‟s works had greatly enhanced the credibility and accessibility of common law‟s doctrine as well

as ensured the continuous adoption of the common law in states of the United States52, since it was a British colony until the day it became the United States

However, the adoption of the common law in North America had not always been smooth When the Declaration of Independence was written, drawn in excited air by the victory, the desire for a political independence and law had made Americans more supportive of codifying the domestic law53 The reason was they thought that the statues had many advantages showing the ideals of the republic and the ideology of national law Many debates revolved around whether the continuous development of the common law or codification would be the accurate way to unify the law In the context of completely new conditions, having more laws to regulate social relations seemed to be deeply considered and reach consensus in some states A series

of states decided to prohibit from applying the common law that was held after 1776 in their territory and enacted some code such as the Criminal Law, the Civil Law under law doctrine of France, German and Spain54

lifetime E Allan Farnsworth, Introduction to The Legal System of The United States, Oceana Publications,

Inc., p 8

52 M Horwitz, The Transformation of American Law, 1780 – 1860, Harvard University Press, 1977, p 58

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

297

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

297

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Nevertheless, English – the language and nationality of most of the colonists – remained the United States in the common law system It was noteworthy to mention a contribution of some lawyers‟ works, notably Kent55and Story56, and a training jurists system based on the common law These causes had made the United States legal system, after more than half a century under the influenced of the Roman law57, returned to the common law and have developed from there

The common law is one of the primary legal system in the world, a collection of judicial decisions, customs, and general principles However, the United States gained the independence from very early day so there are vast differences in geography, economic and social pattern, population composition, ethnic, religious, lifestyle and psychology from the Britain Although the United States is a member of the common law system, it has never developed in the way similar to England and other countries58

There were at least three impediments to the immediate acceptance of English law in the early colonial period The first was the dissatisfaction with some aspects of English justice on the part of many of the colonists, who had

55 James Kent (1763 – 1847): became the first professor of law at Columbia College in 1793 He resigned in

1798 to go on the New York Supreme Court and was appointed Chancellor of the state in 1814 Upon his

retirement in 1823 he returned to Columbia, and during this period he published his Commentaries on

American Law, a collection of his lectures dealing with nearly all phases of contemporary substantive law E

Allan Farnsworth, Introduction to The Legal System of The United States, Oceana Publications, Inc., p 10

56 Joseph Story (1779 – 1845): was appointed to the United States Supreme Court in 1811 In 1829, while retaining his seat on the Court, he became a professor of law at the Harvard Law School, where he reorganized the curriculum and revitalized the school His nine commentaries develop from his lectures on

subjects ranging from the Constitution to conflict of laws E Allan Farnsworth, Introduction to The Legal

System of The United States, Oceana Publications, Inc., p 10

57 Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD, when the Roman – Byzantine state adopted Greek as the language of government Mason, Alphe United States, American Constitutional Law: Introductory Essays and Selected Cases, 12th ed., New York: Prentice Hall, 1998., p.37

58 Réne David, Những hệ thống pháp luật chính trong thế giới đương đại, nhà xuất bản TP.HCM, 2003, p.298

30

migrated to the New World in order to escape from what they regarded as intolerable conditions in the mother country59 This was particularly true for those who had come in search of the religious, political, or economic freedom A second and more significant impediment was the lack of trained lawyers which continued to retard the development of American law throughout the 17th century The religious life in the colonies had little attraction for English lawyers English law books were not readily available, and few among the early settlers had any legal training The third impediment was the disparity of the conditions in the two lands Particularly in the beginning, life was more primitive in the colonies and familiar English institutions that were copied often produced rough copies at best60 The early settlers did not carry English law in its entirely with them when they came, and the process by which it was absorbed in the face of these impediment was not a simple one

The Constitution let the states keep all the powers necessary to regulate the daily lives of their citizens It is provided that these powers did not conflict with the needs and welfare of the nation as a whole Thus, state courts, with an authorization to interpret Constitution and laws, and make judicial precedents, continues to develop the common law to build a legal ground to settle disputes that occurs in society, to form and remain an orderly society Over time, the courts of fifty states have built a source and principles

of their common law in different ways In many states, common law

On the other hand, it is true to say that American law has unity The law states were all derived from English common law States, thus, developed their own law based upon the familiar legal technology and legal thought of the English common law This made the domestic law have some differences

at the beginning, but over time, these differences have been fading Even so, the federal law still has an important, though limited, role as a conductor in providing a framework to the states

32

The Article VI Supremacy Clause barred state laws that contradicted either the Constitution or federal law This Article established the first principle of American law: where federal Constitution speaks, no state may contradict it Hence, the federal government may harmonize the state laws by influencing the states through the policies that is suitable for federal government‟s wishes Working with the states, the federal government creates certain laws and programs that are funded federally, but administered by the states Education, social welfare, assisted housing and nutrition, homeland security, transportation, and emergency response are key areas where states deliver services using federal funds and subject to the federal guidelines This gives the federal government the power to influence the states For example,

in 1970s, the federal government wanted to lower highway speed limits to reduce energy consumption Rather than simply legislative a lower speed limit, the federal government threatened to withhold money for road projects from states that did not themselves lower the speed limit in their states In many cases, the states must also partially contribute the programs to qualify for federal funds One more reason that contributes to the uniform legal system of the United States was state legislatures and courts‟ thoughts about uniform law Each state‟s legislature usually tries to enact the law which is not significantly different from the others, except for the special cases, to give convenience to its citizens in interstate trading and working In judicial part, the judges also learn good decisions of other states to improve their adjudication, and to hope that they shall remain their position in the future63

63

Douglas K Stevenson, American Life and Institutions, Bureau of Educational and Cultural Affairs, United

States Department of State, Washington District Columbia 20547, p 45

33

This recalls United States to remember the experience exchange‟s meeting of the ancient English judges After working with the trial in many provinces or cities, they exchanged the experiences and realized that they held different decisions in some cases that were similar to the others And if this situation continued to happen, the equality and fairness could be guaranteed in the society They acknowledged positively the limits and unified a plan to fix

it – making a same decisions if the cases had similar circumstances, created the uniform in law64 The judges of the United States maintain the good tradition by learning decisions of other states or follow the judicial precedent

to complement their adjudicated skill

The final factor that helps to unify the law is that the United States recommends law to the state legislatures65, also named the uniform codes The uniform codes have no same validity as the statues in European countries, which are applied the civil law system The most ambitious uniform code of the United States has been the Uniform Commercial Code, which had been adopted in almost every state Louisiana, the sole exception, later adopted parts of the Code66 However, due to the diverse economic, politic and social conditions of fifty states, there is no legal system in exactly the same way to

the preliminary work is done in committees which function much as the committees of a legislature Day,

The National Conference of Commissioners on Uniform State Laws, Houghton Mifflin Company, 1955, p

69

66

E Allan Farnsworth, Introduction to The Legal System of The United States, Oceana

Publications, Inc., p.123

There were many reasons for applying flexibly the common law, including objective and subjective reasons Objective reasons could be mentioned are following reasons: first, there are geographic location conditions; second, an insufficient amount of judges; third, differences between British and American society; and fourth, the dissatisfaction with English common law of most British immigrants First, there are geographic location conditions The states of the United States are located too far to update other states‟ declaring decisions or verdict of the courts in other states67

Second, although reports of cases began to be published at the end of the 18th century, the judges and the members of the courts were few in number At the time of the foundation of the United States, in the whole territory of thirteen states three were only thirty-five trained lawyers – the key

67 Meador, Daniel J., American Courts, St Paul, Minnesota: West Publishing Co., 1991, p 36

35

elements in judicial branch – have made the operation of the courts significantly affected During the 17th century, the justice that was administered was often lacking in technicalities and was sometimes based on

a general sense of right as derived from the Bible and the law of nature68

Third, American society at the time was a colonial society and developing heavy industry, light industry, unlike the ending feudal society in Britain The foundation of the United States was at about the same time with both the most economically prosperous advantages of Europe and the decline

of feudalism, so American inherited all of these advantages This explained why English common law applied in the United States must be the common law which handed down before independence69 Social relations in two countries were not identical, so the common law – the court decisions, a reflection of the social structure existed in each country – was not the same, and it was unable to retrieve the English law to apply fully and completely to America social relations Subjective reasons of the flexibly applying common law in the United States were due to the unified court system of thirteen states, because the courts were independent of each other The residents of the states were affected deeply by the free and independence theories, highly prized the self-control to the relations that happened in their land, so it is not easy for them to accept other states‟ decisions

One more very important reason is that most of the Europeans who had migrated to North America in order to escape from the English common law,

36

as well as the rigid economic and social patterns of the Old World that locked individuals into a particular station in life regardless of their skill or energy did not want to accept English common law as a legal source to settle their disputes in life70 The main reasons that made the American common law have very specific characteristics in comparison with English common law

The last difference of the United States legal system from English is the role of the Constitution The Constitution is, to use its own language, the

“supreme Law of the Land” to which all other legislative sources are subject and a written law The Constitution limits the legislative and executive powers of all levels of government Any law or portion of a law that is deemed by the court to be in conflict with the Constitution is nullified, with the United States Supreme Court having the final say in such matters Meanwhile, in Britain there is an unwritten Constitution and its validity is not

as a supreme law When there is a conflict between the Constitution and laws, the applicable principle is that the later documents will have the upper hand

In other case, if the Constitution is in conflict with the law of the European Community

1.3 Conclusion

The influence of English law in America, which had virtually ended by the time of the Civil War, is negligible today Only infrequently are the more recent English cases cited in contemporary American judicial opinions and even more rarely will a question arise that turns on the reception of English law Yet the fundamental approach, much of the vocabulary, and many of the principles and concepts of the common law are as familiar in the United

70

Richard C Schroeder, Outline of United States Government, Office of International Information Programs,

U.S Department of State, 2000, p.8

37

States as in England English cases, though in relatively small numbers, are still part of the “taught tradition” in America law school71 Whereas, the United States still maintains a sense of continuity, a set of core values that can

be traced to its founding From its origins as a set of obscure colonies hugging the Atlantic coast, the United States has undergone a remarkable transformation into what political analyst Ben Wattenberg has called “the first universal nation”72

, a popular of almost 300 million people representing virtually every nationality and ethnic group on the globe It is also a nation where the pace and extent of change – economic, technological, cultural, demographic, and social – is continuously developed

The Chapter 1 in this dissertation mentions the fundamentals in the United States legal system, gives readers an overview about the foundation of the United States and characteristic of the United States legal system to understand the reasons why the United States has the principle of separation

of powers The principle of separation of powers, which has been written in the Constitution, plays an important role in the United States legal system It separates the powers between state government and federal government, and take shape limits of each government‟s legislative, executive and judicial powers Chapter 2 will go into the details of this principle

2.1.1 The organic power of the states

in contrast to the federal government, are largely free to exercise any power

40

not prohibited to them In order to restrict state government powers, the restrictions must be spelled out in the state‟s constitution77

In some cases falling under the federal law, states still have the power

to regulate these areas if the federation does not make full use of its authority and issue the regulations for these areas This is called “the residual authority”78

of the states When the United States Congress fails to make full use of its legislative power, states can be delegated some certain powers, for instance: states are not prohibited to supplement or fill the gaps in the federal law The following two cases are specific examples The first case is that when some areas are regulated by the federal law but the regulations do not cover all aspects of the relationships, the states are entitled to issue the law to supplement or fill the gaps of the federal law in these circumstances However, the negative aspect of the state government mentioned above is that the states can‟t promulgate the regulations in conflict with the existing ones of the federal law The states are only allowed to detail the regulations limited in the legal frame set by the federation For example, in the Environmental Law, the federal government plays the role to adjust the management, to set up the most minimum common standards for the whole country regarding the environmental protection This authority is guaranteed to be executed by federal agencies with an implementation sanction system, for example: Environmental Protection Agency Besides, the state and local government also share this important role in executing this program of the federation They are free to issue the acts or implement their own programs In fact, the