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The Lost European Aspirations of U.S. Constitutional Law

Published online by Cambridge University Press:  06 March 2019

Charles F. Abernathy

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Most European and American attorneys and judges think the U.S.A. has its legal roots in English common law, and that is probably true for the many areas of U.S. law that are still controlled by the traditional common-law process of simultaneously making and applying law. Yet, with respect to constitutional law – America's greatest legal contribution to modern respect for the rule of law, the roots of the U.S. legal system are firmly planted in Europe, not England. The U.S. Constitution was inspired by French revolutionary ideas of rationalism in law; it was intended as an integrated document just like codes; and it has been interpreted by American judges to be not just a political document but binding law – law that is binding on all three branches of government, legislative, executive, and judiciary. In fact that was the holding in Marbury v. Madison, the case decided exactly two hundred years ago.

Type
Legal Culture
Information
German Law Journal , Volume 4 , Issue 6 , 01 June 2003 , pp. 595 - 611
Copyright
Copyright © 2003 by German Law Journal GbR 

References

2 Professor Langdell's famous first casebook on U.S. contract law, for example, contained only cases, without explanatory commentary, and these cases were explicitly chosen because they revealed “doctrines [that had] arrived at [their] present state by slow degrees,” by a process of “growth, in many cases extending through centuries.” Charles C. Langdell, Law of Contracts vi (1871). Today German Universities continue the identification of foreign or comparative law with the study “Anglo-Saxon” or American common law, see, e.g., Muenster University, Study of Common Law, at http://www.uni-muenster.de/Jura.cl/ (Muenster's website on study of common law), and universities in the United States similarly equate U.S. domestic law with common law and comparative law with what they often call the “civil-law” system. See, e.g., Harvard Law School Catalogue: “As the twentieth century nears its close, almost every contemporary legal order has felt the influence of either the common law system or the civil law system of continental Europe. A general introduction to the civil law through, for example, a study of basic institutions and solutions of contemporary French and German law provides common law students with the background needed for more specialized work in foreign law, or in jurisprudential or historical courses that deal with material not drawn from the common law. (For students trained in the civil law, a general background in the common law is, of course, of like importance.)” See Harvard Law School Catalogue (2002), at http://www.law.harvard.edu/students/catalog/cgroups/foreign.php#b.Google Scholar

3 Even in areas that are ostensibly statutory or controlled by codes, the U.S. codes are often dominated by common-law concepts or reflect a desire to have the codified law continue to evolve, within parameters set by the open-ended terms of the relevant code. See, e.g., Richard Danzig, A Commentary on the Jurisprudence of the Uniform Commercial Code, 26 Stan. L. Rev. 621 (1975).Google Scholar

4 5 U.S. (1 Cranch) 137 (1803).Google Scholar

5 The code-based system is typically called the “civil law system” in the United States. See Arthur von Mehren & James Gordley, The Civil Law System 3 (1977) (leading early university casebook on “civil law”): “[I]n the civil law, large areas of private law are codified” and “influenced by Roman law,” neither being significant features of the “common-law system developed in England.” In order to avoid confusion with the term “civil law” insofar as it indicates non-penal law, this essay uses the terms “code law” and “code-based law,” thus emphasizing not the Roman source of law but the codification methodology.Google Scholar

6 See von Mehren & Gordley, supra note 5, at 14 (describing France).Google Scholar

7 Id. at 48 (describing France).Google Scholar

8 Id. at 48-51.Google Scholar

9 Id. at 54-56.Google Scholar

10 See Bailyn, Bernard, The Ideological Origins of the American Revolution 273-80 (1967).Google Scholar

11 See Montesquieu, , The Spirit of the Laws 156-57 and Chapter 5 passim (A. Cohler, et al. eds., 1989).Google Scholar

12 U.S. Const. art. I, § 1.Google Scholar

13 U.S. Const. art. II, § 1.Google Scholar

14 U.S. Const. art. III, § 1.Google Scholar

15 U.S. Const. art I, § 1 (further subdivided into a Senate representing the states and a House of Representatives based on population).Google Scholar

16 U.S. Const. art I, § 1 (who serves with a vice-president but exercises such executive power alone).Google Scholar

17 U.S. Const. art. III, § 1, cl. 1.Google Scholar

18 See The Federalist No. 10, 28.Google Scholar

19 Art. of Confed., arts. V and IX, ¶1.Google Scholar

20 Art. of Confed., art. IX, ¶5 and X.Google Scholar

21 Art. of Confed., art. IX, ¶¶2-3.Google Scholar

22 Art. of Confed., art. I.Google Scholar

23 Art. of Confed., arts. I, II, III, VII, X, XI, and XII.Google Scholar

24 U.S. Const. art. I, § 2, cl. 1 (House of Representatives); art. I, § 3, cl. 3 (Senators); art. II, § 1, cl. 5 (President). Members of the third branch, the judiciary, are merely described as “judges,” without further qualification. See U.S. Const., art. III, § 1.Google Scholar

25 U.S. Const. art. I, § 4-5, 8 (Congress); art. II, § 2-3 (President); art. III, § 2 (Supreme Court and inferior federal judges).Google Scholar

26 U.S. Const., art. I, § 7 (bicameral adoption, signature by President or veto, override of veto).Google Scholar

27 See, e.g., U.S. Const. art. I, § 7 (privileges and compensation of members of Congress, limitations on other service); art. II, § 4 (removal of President); art. III, § 1 (compensation and removal of judges).Google Scholar

28 See U.S. Const. art. I, § 9-10 (federal and state limitations, respectively).Google Scholar

29 See U.S. Const. art. IV-VII.Google Scholar

30 See, e.g., U.S. Const. art I, § 4, ¶1 (method of congressional election and time for future meetings); art. III, § 1 (creation of inferior federal courts).Google Scholar

31 Similar themes can be seen in the German codification movement of the nineteenth century. See von Mehren & Gordley, supra note 5, at 72-75 (discussing the triumph of positivism in German private law).Google Scholar

32 See, e.g., The Federalist No. 46 (Madison) (federal government is not the enemy of the states, for the people control both), No. 78 (Hamilton) (judiciary will enforce constitutional law without power of force or political judgment and only by persuasive peans).Google Scholar

33 5 U.S. (1 Cranch) 137 (1803).Google Scholar

34 Few scholars seriously believe today that the civil-law system is a computer that automatically replicates uniform and predictable results under all circumstances; the dispute is largely over the degree to which the continental systems remain committed to these ideals. Compare Mitchell Lasser, Judicial (Self-) Portraits: Judicial Discourse in the French Legal System, 104 Yale L.J. 1325 (1995) (arguing for indeterminancy and discretion in reality of French judicial rulings), with von Mehren & Gordley, supra note 5, at 54-59 (1977) (arguing that original desire for predictability could not be attained in drafting but that later educational schools tended to enforce such ideas). In any event, it is enough for present purposes that the civil-law and common-law systems vary by some significant degree on these issues, even though they may not lie at extremes on such issues. Cf. G. Fletcher, Comparative Law as a Subversive Discipline, 46 Amer. J. Comp. L. 683 (1998).Google Scholar

35 See, e.g., David, R. & Brierly, J., Major Legal Systems in the World Today 17-24, 90-93 (1978).Google Scholar

36 See id. at 15-43 (contract law).Google Scholar

37 See Abernathy, Charles F., Law in the United States 18 (1996) (adapted).Google Scholar

38 See Abernathy, , supra note 37, at 143-46 (summarized from a longer list). The quoted material in brackets is taken from the list in the text accompanying note 37.Google Scholar

39 5 U.S. at 176.Google Scholar

40 5 U.S. at 176-78.Google Scholar

41 5 U.S. at 178-80.Google Scholar

42 5 U.S. at 177.Google Scholar

43 Recall that the statute held unconstitutional in Marbury sought to give the Supreme Court original jurisdiction over cases which the Constitution limited to its appellate jurisdiction, or so the Court construed the statute. See Abernathy, supra note 37, at 149-50.Google Scholar

44 5 U.S. at 179-80: “From these and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.”Google Scholar

45 See supra text accompanying note 37 (list items 1-3).Google Scholar

46 See id. (items 7 and 11).Google Scholar

47 Berman, Harold, Justice in the U.S.S.R. 226-66 (1963).Google Scholar

48 See Helmholz, , Continental Law and Common Law: Historical Strangers or Companions?, 1990 Duke L.J. 1207 (noting synetheses in common law and code-based principles); Roscoe Pound, The Influence of the Civil Law in America, 1 La. L. Rev. 1 (1938) (general); F. Aumann, The Influence of English and Civil Law Principles Upon the American Legal System During the Critical Post-Revolutionary Period, 12 U. Cin. L. Rev. 289, 306-07 (1938) (especially noting influence on contract law).Google Scholar

49 17 U.S. (4 Wheat.) 316 (1819).Google Scholar

50 Id. at 354: “Our history furnishes abundant experience of the utility of a national bank as an instrument of finance.”Google Scholar

51 Id. at 407: “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”Google Scholar

52 Id. at 407.Google Scholar

53 383 U.S. 663 (1966).Google Scholar

54 Grey, Thomas, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703 (1975) (and answering the question, yes).Google Scholar

55 See Hand, Learned, The Bill of Rights 1-30 (1958) (judicial review violates the constitutional text).Google Scholar

56 383 U.S. at 675; see also id. at 677: “The Court's justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be ‘shackled to the political theory of a particular era,’ and that to save the country from the original Constitution the Court must have constant power to renew it and keep it abreast of this Court's more enlightening theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself but also on the concept of a written constitution….”Google Scholar

57 See Tushnet, Mark, Critical Legal Studies: A Political History, 100 Yale L.J. 1515 (1991).Google Scholar

58 532 U.S. 451 (2001).Google Scholar

59 Id. at 454.Google Scholar

60 The Due Process Clause simply provides that no state shall deny a citizen the due process of law. The original Ex Post Facto Clause more specifically covers criminal punishment, but it applies only to prosecutions by the federal government, see art. I, § 10, cl. 1. The Fourteenth Amendment's Due Process Clause makes similar rules applicable to the states. See Bouie v. City of Columbia, 378 U.S. 347 (1964). These rules were at issue in the Rogers case.Google Scholar

61 Rogers, 532 U.S. at 460-61.Google Scholar

62 Id. at 461.Google Scholar

63 Id. at 452.Google Scholar

64 Id. at 468.Google Scholar

65 See id. at 453.Google Scholar

66 See Aumann, Francis, supra note 48, at 315-16 (works by Kent and Story credited).Google Scholar

67 See Keller, M., Regulating a New Economy: Public Policy and Economic Change in America 8-12 (1990) (dramatic and unprecedented change in the organization of business and resultant social changes). See generally The American Economy in Transition 515 (Martin Feldstein, ed., 1980) (creation of national markets).Google Scholar

68 Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).Google Scholar

69 See, e.g., Boren, Craig v., 429 U.S. 190 (1976) (decrying “old notions” animated laws that could not be justified in a modern society).Google Scholar

70 See Brown v. Board of Educ., 347 U.S. 483 (1954).Google Scholar

71 See Grey, Thomas, supra note 54.Google Scholar

72 See Carr, Baker v., 369 U.S. 186 (1962) (political question doctrine narrowed); Reynolds v. Sims, 377 U.S. 533 (1964) (apportionment overturned).Google Scholar

73 See supra note 2 (citing first casebook). Strangely, the first casebook authors saw themselves as engaged in a scientific enterprise, reflecting some ideas from code-based systems, whereby students could see the rationality of law. See id.Google Scholar

74 See American Assn. of Law Schs., The AALS Directory of American Law Teachers, 2000-2001 at 25-222 (listing schools and faculty).Google Scholar

75 See Casebooks for the Common Law of Europe: Presentation of the Project, 4 European Review of Private Law 67 (1996). The project now envisions a series of casebooks on private-law topics where the common-law process contributes to the making of legal rules: “In the casebook project, the emphasis is not put on the drafting of uniform rules or on doctrinal comparisons, as in other projects, but on the search for similarities in the living laws. With its “bottom-up” approach, the project wants to complement the other projects.” See www.era.int/www/mirror/ius_comune.Google Scholar

76 Mengozzi, Paolo, European Community Law xliii (Del Duca trans., 1999) (first reason for the expansion of EC law has been development of “principles which Community case law has embraced”). See Jurgen Schwarze, ed., The Birth of a European Constitutional Order 12-13 (M. Geiss trans., 2001) (proposing that the constitutional law of the EU has also affected its member states’ constitutional law); Paolo Mengozzi, Casi e materiali di Diritto Communitario 1 (1994) (development of EU legal principles “ha, corellativamente, determinato profune innovazione dei sistemi giuridici dei Paesi membri della Communita”).Google Scholar

77 See Mehren, von & Gordley, , supra note 5, at 59-62 (discussing battle between reception of Roman law and residual respect for German legal traditions in pre-Savigny nineteenth century Germany).Google Scholar

78 See U.S. Const. amend. XI, amend. XIV, amend. XVI, amend. XXIV, amend. XXVI.Google Scholar