Law, How Does It Work?

I recently spoke with some people in tech who are deeply concerned about the government demanding data on their users, and using it to round up immigrants, build a Muslim registry, or do other awful things. Engineers are realizing that the cool things they build can be weaponized. This awakening to social responsiblity is a very good thing.

Several people asked about how government data demands work: who receives them, who opposes them, what kind of data can be demanded and turned over, etc. These are great questions, and I’m going to get into them in a later post on data law.

But the overall level of questions showed me that many first need to learn some fundamentals about law and government. This post is to lay that foundation, without being judgmental. Learn the basics here, spend a ton of time on Wikipedia, and pretty soon we’ll all be at least conversant in law. Then we can get to work.

Warning: This is an extremely high level overview! It is not comprehensive, and glosses over many important details. It is also a little bit like that Schoolhouse Rock episode, but with less awesomeness.

Federalism

Federalism is one of the defining features of American democracy. Federalism means a system with multiple independent levels of government. Even though the US federal government is enormously powerful, there are lots of things it can’t do—by design.

Quick Historical Background: The American Revolution

Before the American Revolution, the colonies were governed separately, and each had their own strong identities. When the colonies joined together for the Revolution and formed a united government, they still wanted to retain that independence. The central government they envisioned would therefore be one of limited powers.

The colonies called themselves states (yes, as in nation-states), and their union was much more loose than we think of it today. The union was originally so loose that it barely held together: before the current Constitution, the states were bound together by the Articles of Confederation, which the states eventually decided to scrap in favor of something stronger.  (For a modern analogy, think of the European Union. It’s an important body, but no one would dispute that Germany is still its own country. That’s sort of what the early states were like.)

Despite the expanded power of the federal government under the Constitution (and over the past two centuries), states still retain a great deal of power and lawmaking authority. The Tenth Amendment spells this out:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This means that, if a power is not specifically spelled out in the Constitution, the Federal government doesn’t have that power—the states each do.

The Constitution and Bill of Rights

I mentioned the Articles of Confederation in passing. They were in effect for about the first decade of American independence. In 1789, the Articles were replaced by what we have now: the Constitution.

The Constitution sets up a federal government with three branches: legislative (Congress), executive (the President), and judicial (the courts). The legislative branch makes law; the executive branch enforces law; and the judicial branch interprets law.

Article I: Legislative Branch

The first few sections of Article I set up the two branches of Congress—the Senate and the House of Representatives—and specify how members are to be elected. This is where the infamous three-fifths compromise is found (more on that below).

But Section 8 of Article I is where things get more interesting, for our purposes: it’s where the federal government’s limited powers are spelled out. This includes the power to tax, borrow money, regulate commerce, establish post offices, issue patents and copyrights, raise armies and declare war. Almost all of today’s federal government ties back to Article I, Section 8.

Section 9 imposes further limits on Congress, and Section 10 prohibits states from exercising some powers that are exclusive to the federal government.

Article II: The Executive Branch

While you might think the Presidency is incredibly important, it takes a bit of a back seat in the Constiution. Article II is short, compared to Article I.

Section 1 sets up the Electoral College that we all know so well, and sets out some other qualifications for being President.

Section 2 sets out the President’s executive powers over foreign relations (making treaties) and war.

Section 3 is about how the President should work with Congress, and a few other miscellaneous items.

Section 4 sets out the process for removing a President through impeachment and then conviction for “treason, bribery, or other high crimes and misdemeanors”.

Article III: The Judicial Branch

Article III is even shorter than Article II. It sets up the federal judiciary, or at least the very beginnings of it.

Section 1 sets up the Supreme Court, but doesn’t say how many justices should serve on it—that’s left for Congress, as is the establishment of lower courts for trials and appeals.

Section 2 talks about what kinds of cases federal courts can hear.

Section 3 sets out the offense of treason. It’s the only criminal offense specified in the Constitution, although maritime piracy is also mentioned in Article I as something Congress can pass laws on.

Articles IV through VII

The Constitution doesn’t end at Article III. There are four more articles, but they’re all fairly short. Among other things, they talk about how the Constitution is to be ratified (Article VII) and amended (Article V). Until the Reconstruction Amendments (see below), Article IV, Section 2, Clause 3 was in effect, and required that non-slave states return escaped slaves to their owners in the South.

The Bill of Rights

Everybody (hopefully) has heard of the First Amendment, which guarantees free speech, freedom of religion, and the right of assembly. What fewer people have fully grokked is that the First Amendment was not originally part of the Constitution. There were public debates over whether the states should ratify the Constitution or not. One group, called the Anti-Federalists, worried that the Constitution did not do enough to guarantee people’s rights and liberties. Proponents of the Constitution wrote the Bill of Rights to address those concerns.

The amendments in the Bill of Rights are not that long, and they’re all worth reading in full. Still, here’s a quick crib sheet:

  • First: Free speech, right to assembly, freedom of religion, free press.
  • Second: Right to bear arms
  • Third: No quartering soldiers
  • Fourth: No unreasonable searches or seizures. Searches and seizures require a warrant signed by a judge.
  • Fifth: Due process and right to jury in criminal cases, no self-incrimination or double jeopardy.
  • Sixth: Right to speedy trial and a lawyer in criminal cases, to be confronted by witnesses, and a local jury.
  • Seventh: Right to jury trial in some, but not all, civil cases. The right depends on what was allowed under English common law.
  • Eighth: No excessive bail or fines. No “cruel and unusual punishments”.
  • Ninth: The rights listed in the Constitution and Bill of Rights are not exclusive. (Citizens have and retain other rights, too.)
  • Tenth: States have all powers not granted to the federal government.

The Reconstruction Amendments

After the Civil War ended, Congress passed, and the states ratified, three extremely important Constitutional amendments. The Fourteenth Amendment especially enhanced the power of the federal government.

  • The Thirteenth Amendment abolished slavery—not only a primary cause of the war, but also acknowledged in the original Constitution. (Article I, Section 2, Clause 3, the “three-fifths compromise”, said that slaves counted as three-fifths of a person for counting population and apportioning seats in Congress.)
  • The Fourteenth Amendment is complex. Its two most important contributions are the Equal Protection Clause, which disallows states from enacting discriminatory laws, and the Due Process Clause, which imposes on states the same requirement of due process that the Fifth Amendment imposed on the federal government.
  • The Fifteenth Amendment guaranteed the right to vote regardless of race. (Women still wouldn’t be able to vote until 1920, when the Nineteenth Amendment was ratified.)

Statutory Law

As discussed above, Article I of the Constitution gives Congress the law making power. When Congress exercises that power, its output is statutes. Statutes are what most people think of when they think of “law”. Here’s a short statute as an example:

Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, or attempts or conspires to do such an act, shall be imprisoned for not more than 25 years, fined the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both.

If the building be a dwelling or if the life of any person be placed in jeopardy, he shall be fined under this title or imprisoned for any term of years or for life, or both.

This is 18 U.S.C. § 81. That means it’s section 81 of Title 18 of the United States Code. The United States Code is the collection current federal statutes. They’re organized into a hierarchy of titles and chapters. Title 18, for example, contains most federal criminal offenses.

States all have statutes, too, and like the federal government, they’re made by state legislatures.

Ideally, statutes are clear. You can read them and understand what they mean. The statute above is about arson. In a nutshell, it says that if you burn down federal property, that’s a crime, and you’ll go to jail for up to 25 years or pay a fine (or both).

When statutes are less clear, though, it’s up to courts to interpret them.

Decisional Law (Cases)

The US kept a lot from England, including the way it interprets the law. The English and American way is called the common law system. In a common law system, courts rely on the decisions of other courts that dealt with similar issues. Those decisions are precedent. Depending on which court issued the earlier decision, it might be either binding or persuasive authority. Taken together, all these cases form a body of decisional law.

The main alternative to common law is civil law. Most of Europe and many Asian countries have civil law systems. Civil law systems focus far more on statutory law, and far less on decisional law. If it’s not in a statute, it’s not law. (Fun fact: Because Louisiana was a French colony, it had a civil law system—and still does.)

Federalism and Decisional Law

Back to federalism. Because states have their own laws, they don’t necessarily have to follow decisions from other states or federal courts. If a court in Virginia is interpreting a Virginia state law, it doesn’t have to listen to what any other court thinks about that law—not even a federal court, and certainly not another state’s court. But if those other systems do have decisions that are relevant, the Virginia court can choose to follow them if it finds them persuasive.

Sometimes courts from one system have to interpret laws from other systems. For example, if I sign a contract with someone in New York, the contract may fall under New York law. I may file a lawsuit in California since I live there, but the California courts would still apply New York law to the dispute, and that would include using New York state decisional law, not California’s.

The Supremacy Clause

The federal government does have one big trump card: the Supremacy Clause, which is part of Article VI, and which says:

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 [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.

Basically, if federal and state law conflict, the federal law wins. (One exception: if the federal law were unconstitutional—for example, if it did not drive from one of Congress’s powers under Article I—then it would be invalid, clearing the way for the state law.)

Administrative Law (Regulations)

Another really big source of law is administrative law: the law made up of executive agency regulations. Regulations are rules that executive departments or agencies (for example, the Department of Commerce) write and promulgate. These regulations can cover anything the particular agency is charged with. Regulations flesh out statutes passed by Congress, and Congress can completely supersede them any time it wants.

In the federal realm, the nuts and bolts of issuing regulations are spelled out by the Administrative Procedure Act, or APA. Under the APA, an agency must first publish a draft of a new regulation, and allow a period for public comment. Once comments are all in, the agency considers them, and then publishes its final regulation, which then goes into effect. Final regulations are collected in the Code of Federal Regulations, or CFR. Notices and draft rules are published in the Federal Register.

Agency decisions are often appealed to Administrative Law Judges. These are agency employees, and are not judges in the same sense as under Article III of the Constitution.

The states have their own simiar apparatus for regulations, and their own bodies of administrative law.

Conclusion

I hope this overview of US law is helpful! There’s no way I could cover everything, so please let me know what else you want to know in the comments. I’ll try to do follow-up posts to address questions.

Links and Further Reading

  • If you want to go deeper into the US legal system without getting overwhelmed, I recommend Farnsworth’s short An Introduction to the Legal System of the United States.
  • To learn more about the Constitution, check out the Annotated US Constitution, which has extensive notes on every single clause.
  • The Federalist Papers is a series of essays published during the debates over the ratifying the Constitution. Some of the best ones are No. 10 (dangers of “faction”, or rule by majority) and No. 51 (checks and balances).
  • CourtListener is a great (and free) place to browse and search decisional law from all over the country.

Author: Ansel Halliburton

Ansel Halliburton is a lawyer specializing in entrepreneurship and intellectual property litigation.

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