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

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

2

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
3


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 16th
anniversary 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
/>
4


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

5


researching – such as the checks and balances system2 - will not be
discussed.
- Secondly, although this dissertation concerns the principle of
separation of powers, it only focuses on discussing and analyzing
acts of the principle in the field of federal government and state
government. Hence, the dissertation will not concern other legal
issues of the principle of separation of powers in general, such as the
principle of separation of powers between three separate and distinct
power branches – legislative, executive and judicial branches.
- 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.

6


- 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.
7


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.

8


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.

9


10


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.

11


system of America came from the common law10, Americans are proud of
their sustainable Constitution.

With only seven articles, the Constitution of the United States covers
issues that every state have to face, especially the specific characteristics of a
federal state11. The provisions in the Constitution and the constitutional
amendment later specified the division of powers between the federal and
state governments. The dissertation does not aim to reconstruct an overall
picture of the history of the United States nor to explain the political or
economic system of the nation. The focus of this dissertation is to help readers
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.

12


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

13


Germany, Scotland, Nothern Ireland and the African slaves also immigrated
to North America. England emigrated later, until early 17 th 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.

14


residents in particular immigrated to America to flee from the autocraticule
of King Charles I16.

Despite the differences in socioeconomic status, in the purpose of
settlement and in religious backgrounds, they all had one thing in common,
the desire for freedom. These immigrants sought for a new legal system and
desired to escape from the English common law17. These factors partly
explain why the United States have the same origins with the England, but
Americans and American law have a huge difference from the English.
Unlike the colonial policies of countries in different periods, migratory
movements from the United Kingdom were not directly backed by the
government but were separately carried out by private groups, notably the
Virginia or Massachusetts Bay Companies with the main purpose of gaining
profit margin. However, the claiming of the British Crown in setting the
sovereignty of the North America promoted the immigrant‟s movement. And
once to North America, the British built their settlements in the new land, or
competed by force with existing18. From mid 1610 until late 1776, the
English took about 50,000 prisoners to their new colonies. Judges and prison
authorities offered convicts a chance to migrate to colonies like Georgia
instead of bearing prison sentences. But almost none of them could afford the
cost of passage for themselves and their families to make a start in a new land.

16

D. Flaherty, Essays in the History of Early American Law, ed. 1969, Lanham, Maryland: Rowman and
Littlefield, p. 28.
17
This period, English common law became ever more draconian. In civil, case law regulated no effectively
the social relationship of the new capitalist productions by only a form of compensation, while they need
other forms of financial institution such as forcing to continue performing the contract‟s obligation. In
criminal, the British put prisoners exiled to North America, causing an indignation‟s wave on the whole of
Britain.
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.

15


There were two main ways that they could achieve their dreams: they
could either sign a contract to work as a servant to the captain of the ship or
sign a contract with the Virginia or Massachusetts Bay Companies,
committing to work for them in a period of four to seven years with the
promise of freedom and in some cases, a small piece of land upon expiry date.
The diversity of immigrants created the fear of the dominance of one group
over another. Americans always sought to prevent this situation. This is one
of the premises that shaped the system of checks and balances in the United
States and it is completely different from the doctrine of British and French
governments. Despite initial difficulties, the exodus remained continuously 19.
By 1690 the American population 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

19

Biography of America, />Bureau of International Information Programs, Outline of United States History, U.S Department of State,
2005, pp. 24
20

16


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
21

Bureau of International Information Programs, Outline of United States History, U.S Department of State,
2005, p. 11.
22
American
History:
A
Documentary
Record,
1942
–
Present,
/>23
American Historical Association (AHA), />
17


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.
Richard C. Schroeder, Outline of United States Government, Office of International Information Programs,
U.S Department of State, 2000, p. 8.
25

18


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.

19


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.

20


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.
34
The French government lent its support to the colonies for geopolitical rather than ideological reasons.
They had been eager for reprisal against Britain ever since France‟s defeat in 1763. Bureau of International
Information Programs, Outline of United States History, U.S Department of State, 2005, p.63.
35
Bureau of International Information Programs, Outline of United States History, U.S Department of State,
2005, p.61.
36
Preamble of the Constitution of the United States declares that “We the People of the United States, in
Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America”.

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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, wellfinanced 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.

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