Elements of Law 3.0 Notes of Readings: II-B (Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we continue to consider section II of the materials:  II.B. Hierarchies of Law and Governance: Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

II.B. Hierarchies of Law and Governance: Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources.

Reading notes for:

---hierarchy of law in the United States

--Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Cornell U. Press 1955). READ pp. 72-89.
--Charles McIlwain, Constitutionalism, Ancient and Modern (Cornell U. Press, rev. ed. 1947). READ 1-22
-- U.S. Constitution, Art. VI. Cl. 2. 
--German Basic Law, arts.20-25; 31.
--Constitution of South Africa, arts. 2, 39, 146-150.
--Indiana Code 1-1-2-1
--Hierarchy of Law in Georgia

Background:
“About United States Code: The U.S. Code (USC) is the codification by subject matter of the general and permanent laws of the United States. It is divided by broad subjects into 51 titles and published by the Office of the Law Revision Counsel of the U.S. House of Representatives. The U.S. Code was first published in 1926. The next main edition was published in 1934, and subsequent main editions have been published every six years since 1934. In between editions, annual cumulative supplements are published in order to present the most current information.

FDsys contains virtual main editions of the U.S. Code. The information contained in the U.S. Code on FDsys has been provided to GPO by the Office of the Law Revision Counsel of the U.S. House of Representatives. While every effort has been made to ensure that the U.S. Code database on FDsys is accurate, those using it for legal research should verify their results against the printed version of the U.S. Code available through the Government Printing Office.

Of the 51 titles, the following titles have been enacted into positive (statutory) law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 41, 44, 46, 49, and 51. When a title of the Code is enacted into positive law, the text of the title becomes legal evidence of the law. Titles that have not been enacted into positive law are only prima facie evidence of the law. In that case, the Statutes at Large still govern. The U.S. Code does not include regulations issued by executive branch agencies, decisions of the Federal courts, treaties, or laws enacted by State or local governments. Regulations issued by executive branch agencies are available in the Code of Federal Regulations. Proposed and recently adopted regulations may be found in the Federal Register.” (About the United States Code, Government Printing Office).

We have begun to look at the relationship between law and government.  We have been introduced both to the complexities of the subject and to the ideological foundations of the modern approaches to the issue.   These foundations are, in the West at least, two strains of Enlightenment era ideologies that produced sometimes profoundly distinct notions of the value of government, the necessity of government to law and the relationship of the state to the individual.  Both are grounded in the ancient concept, now understood as infinitely malleable, of popular consent.  This is a notion we encountered first with the Institutes (though its origins lie much farther back in Western ideological history and practice).

On the one hand, consent can be understood as the expression of the popular will, made manifest through government and expressed in law enacted through this apparatus of state. In this construct law is impossible in the absence of government and government provides the incarnation of the popular will which is itself the manifestation of the best interests of the individuals now come together within a political community. Government is a source of protection and obedience to government is a first principle of active engagement with the state.  The protection of that manifestation of the general will is the highest order of systemic protection--process, legality, and  a commitment to a basic set of substantive rights form the core of this approach to government and law.  This is an approach that found its most congenial home in continental Europe and Latin America. A variation of this approach underlies Marxist Leninist political theory and state organization.

On the other hand, consent can be understood as a means of organizing a community of like interests for the protection of property and the operationalization of popular custom and traditions. In this construct, government is a consequential construct, something that is necessary to ensure protection but is not otherwise invested with any inherent power or character.  As a site for the assertion of power against individual interest it is viewed with suspicion and framed in a  way that ensures the smallest interference with individual privilege (understood within the structures of custom and tradition to which the community adheres). Consent and adherence to the government is disciplined by ensuring that all are equal before the law (that in many cases remains a work in progress of course) and that the law is firmly anchored in custom as the lived set of consensual practices of the community.   Government is thus both a source of protection and the space within which joint efforts for improvement can be undertaken.  Government is understood as limited in the scope of its power and is itself constrained by law, including the higher law of the state (the subject of this class).  The government may make law but law is not attached to government nor entirely derived from it. This is an approach most notable in pre modern England and its colonies.

In the United States, no single approach predominates.  The American federal government retains, at least in theory, a foundation in the ideology of constraint limited power--at least as against the states in ur federal system.  States retain , at least in theory, an organization in which their power is also derived from and attached to popular  willingness to see it exercised.  On the other hand, there is a strong strain in American political theory, one increasingly strong as our political ideology drifts more and more into a governance space primarily occupied by projects of regulatory management of behavior, that favors the idea of the union of government and law, of the idea of delegated power entirely consumed by the apparatus of state (including but not limited to its legislature) and of the primacy of the government as the ultimate reflection of the "popular" (Americans do not use the term "general") will. Thus, in the United States ideology is ambiguous and ideological goals in tension.  As a result, pragmatism has tended, at least until recently, to prevail in American politics and ideology used only to support what expediency and political calculation required.  That may be changing.

Today, we take up the related issue.  Whether or not law is an exclusive instrument of government or is otherwise related but not entirely constrained by it, the various forms of law we have encountered, and the needs of government to produce efficient governance structures, have since before the time of the  Institutes produced a need to order law in accordance with the needs and premises on which the government of a state is ordered.  While it is certainly possible to conceive of a government system either in which there exists only one type of law, or in which law, by whatever form created share the same authority, such systems are rare and in any case do not reflect current conventional political ideological premises under any governmental system of consequence. Virtually all systems require that law be ordered into a hierarchy, and that the law that touches on the organization and powers of the government assume a dignity greater than that of the law that orders the private relations among individuals. We consider the way that, within the government system of the United States, law is thus ordered, with an eye toward alternatives adopted in other leading or influential states. To that end we focus on the justification and structuring of a "higher law" of government--what most of us now understand generally as the constitutional law of a state--and through that higher law to consider the place of the other forms of law to which we have been introduced in the prior weeks within the domestic legal orders of states.   In our next class we consider the difficult issue of the relationship between the hierarchies of national legal orders and the international order, and specifically is there something to order (e.g., Carlos José Gutierrez, "Conflicts Between Domestic and International Law," American University Law Review 30:147-154 (1981).

Our first reading sets the framework of our discussion, Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Cornell U. Press 1955). It provides the context for consideration of the question of hierarchy in law in the United States, and more specifically, the jurisprudential premises within which the idea of a hierarchy of law could emerge, and more importantly, a hierarchy of law that is related to, constrains but is also embedded in a government. For Corwin, "The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.  That such would be the outcome was not unforeseen from the first" (Corwin, supra, p.1). Corwin's object is to try to distill the reasons why such a document, the federal constitution, could assume a role as the "higher" law of the United States, one in which the Constitution, much like the Institutes (p.3-4) was ordained by the people and thus acquired both legality and supremacy.  "The sole difference between the Constitution of the United States and the imperial legislation justified in this famous text is that the former  is assumed to have proceeded immediately from the people, while the later proceeded from a like source only mediately." (Ibid., 4). But Corwin also suggests that while the Constitution's supremacy and legality might be ascribed to the legitimacy of the popular approval that ordained it, its legitimacy also was ascribed to the notions of justice contained within it, that is to those natural law principles, "eternal and immutable. . . [not] an act of will but one of discovery and declaration." (Ibid., p. 5). That is, Corwin argues, that the supremacy of the Constitution followed from the idea that it merely declared "a law superior to the will of human governors." (ibid). He then seeks to consider these natural law origins of the Constitution and its place within the hierarchy of American law, one grounded in ancient (Roman) concepts of natural law  producing natural rights which could not be taken through the agency of any government except illegitimately.  (Ibid., 15-20; further reading essays in Richard O. Brooks editor, Cicero and Modern Law (Burlington, VT: Ashgate, 2009).

In the pages before the assigned reading (esp. pp. 57-72)  Corwin considered the development of natural law doctrine and its effects on the way Americans thought about law. He was particularly interested in the contributions of two germinal figures in that development, Grotius and Sir Isaac Newton (pp. 58). Grotius, Corwin tells us, "erected the law of nations upon a natural law basis as a basis against the current international anarchy" (ibid., 57). He also revived, as a subject of legal discourse, Cicero's ideal of natural law, clearing it of its theological accretions acquired during the medieval period, but not with its associations with notions of the Divine order, and thus making it acceptable to those who had thrown in with the Reformation. (Ibid. 58). "Once natural law is defined as right reason and is described as at once a law of, and a law to, God." (Ibid) it is free to serve as an autonomous premise for the construction of a law-state.  Newton  provides especially the English speaking world with an ideology of order within the natural world, one that either confirms the orderliness of the divine conception of the world or in the existence of those natural rules which reason, through science, could make manifest (Ibid., 58-50) "[i]nscrutable deity became scrutable nature." (Ibid., 59).

These natural law ideas, Corwin tells us, were conveyed into American constitutional theory through the work of John Locke, whose Second Treatise on Civil Government you have encountered in our recent readings.   His transformation of natural rights into rights of the individual, borrowed from the debates between Royalists and Parliamentarians in the English Civil War, rights of "Life, liberty and estate" ("This is because our law is grounded upon the law of nature.  And these three things do flow form the law of nature." Bacon, Argument in Calvins Case, Bacon, Works 176). ) is made possible through his development of the idea of the "social compact" tied to the law of nature. (Ibid, 61). Locke effectively sought to transform the law of nature from a notion of mass rights to one of individual rights.  In what would become the U.S. these notions were bound up in those social and political compacts, the Mayflower Compact being a principal example, that sought to re-establish a covenantal government among a community of followers that mimicked the covenantal relationships between God and his people in the Bible. "And the procedure which, under the sanction of God, was effective to produce a Church, could also be availed of under the same sanction to produce a commonwealth." (Ibid., 65). Thus, where Locke looked to natural law as the ultimate basis of authority, American colonists in New England, at least, sought that authority in God and in the patterns of covenant based government established in the Hebrew Bible. For the colonists south of New England, though, the later writings of Locke would prove persuasive. "The two features of the Second Treatise which have impressed themselves most definitely upon American constitutional law are the limitations which it lays down for legislative power and its emphasis on property right." (Ibid., 67).

The influence of higher law doctrine associated with the names of Sir Edward Coke and Locke was at its height in England during the period when the American colonies were being most actively settled." (Ibid., 72).    During the time of settlement and especially before the 18th century, the colonies repeatedly tried "to secure for their constituencies for the benefits of Magna Carta and particularly of the twenty-ninth chapter thereof [due process]." (Ibid., 73).  Indeed, for the colonists, Magna Carta, according to Corwin became a generic term for documents of constitutional significance.

After the Bible, Locke was the principal authority relied on by the preachers to bolster up their political teachings, although Coke, Pufendorf, Sydney, and later on some others were also cited. . . . Natural rights and the social compact, government bounded by law and incapable of imparting legality to measures contrary to law, and the right to resistance to illegal measures all fall into their proper place." (Ibid., 74-75).

It was during the 18th century that these ideas began to be applied through a series of judicial cases in which local courts became the sites of development for the political theories that would eventually produce the political theory of the federal constitution. "The suggestion that the local courts might be thus pitted against an usurping Parliament in defense of 'British rights,' served to bring the idea of judicial review to the very threshold of the first American constitutions, albeit it was destined to wait there unattended for some years." (Ibid., 77).  These eventually formed the idea, nicely put forth in the Massachusetts Circular Letter of 1768, of the fundamental notion that governmental authority is intrinsically conditioned by a higher and fundamental law intrinsic to the condition of free individuals and subjects.  These ideas also played nicely into the development of the idea, increasingly popular in the colonies, of the fundamental character of the autonomy of each of the units of the Empire, each co-equal and tied together solely through their mutual allegiance to the person of the King. (Ibid., 80-81).  A strain of this eventually appears in the federal organization of the American Union and the perennial power of notions of "states rights" in contemporary American discourse. 

But Corwin also suggests that when aggregated, these strains of political ideas eventually focused the ideological foundations of the American Revolution on the question, earlier at the heart of the English Civil War, of the fundamental character of government and the role of law, especially a "higher" or "natural" law to constrain the apparatus of state (and principally its legislative power.

Lord Acton has described the American Revolution as a contest between two ideas of legislative power.  Even as late as the Declaratory Act of 1766, the American invocation of a constitution setting metes and bounds to Parliament did not fail of a certain response among the English themselves. . . .  The direction which the great weight of professional [English] opinion was now taking was shown when Lord Mansfield . . . ., arose in the House of Lords to support the Declaratory Act.  The passage of that measure by an overwhelming majority committed  Parliament substantially to Milton's conclusion of a century earlier that 'Parliament was above all positive law, whether civil or common.'" (Ibid., 83-84).

But neither the English nor the American position was extreme.  Both incorporated aspects of the other. The English embraced Parliamentary supremacy but exercised that supremacy within a thousand years of constitutional constraints.  The Americans embraced limited government but also embraced the ideal of legislative sovereignty, which was also "added to the stock of American political ideas". (Ibid., 87).  But legislative sovereignty of the sort that eventually dominated European systems and one that could trace its origins to the consent and delegation notions of the Institutes, was rejected as the dominant model of the American Republic.  Corwin offers two reasons, based on the emergence of a constitutional system and with it a very specific hierarchy of law that in turn served to constrain the government in the exercise of its now more limited powers.

 In the first place, in the American written constitution, higher law at last attained a form which made possible the attribution to it of an entirely new sort of validity, the validity of a statute emanating from the sovereign people. . . . . But in the second place, even statutory form could hardly have saved the higher law as a recourse for individuals had it not been backed up by judicial review ." (Ibid., 89).

 With the second reading, Charles McIlwain, Constitutionalism, Ancient and Modern (Cornell U. Press, rev. ed. 1947), the student is then introduced to what this political settlement at the start of the American Republic means for the lawyer, and specifically the development of the modern notion of constitutionalism.  McIlwain starts by contrasting the new with the old concept of constitutionalism by contrasting Thomas Paine's view with that of Henry St. John, Vicount Bolingbroke. For Paine, a constitution is a thing that precedes the government it forms and a government can only exist legitimately as a creature of the constitution that creates it.  (Ibid., 2).  For Bolingbroke, a constitution is the whole of the the edifice of state assembled--its laws, institutions, and customs derived from the customs and usages of the people which has agreed to its government.  The government is a descriptor of this assemblage. (Ibid., 3). For Paine a government may not act legitimately contrary to the constitution; for Bolingbroke such an act is evidence of a bad government. (Ibid). In one case arbitrary government is inconceivable in the sense that such an act would destroy the fabric on which the state is built; for the other it merely suggests necessity backed by the authority of the representative of the people. (Ibid., 7).  For Paine the consequence of arbitrary government is either a lawful power of rebellion or the disciplinary power of judicial review (Ibid., 9)

McIlwain suggests that Paine's idea "that the only true constitution is one consciously constructed and that a nation's government is only the creature of this constitution, conforms probably more closely than any other to the actual development in the world since the opening of the nineteenth century." (Ibid, 14). The sort of written constitution as understood by Paine has become the norm in most parts of the world, though their construction and emphasis has varied over time.   (Ibid).  That becomes clear as we review the constittuions you have been asked to consider for this class: the U.S. Constitution, Art. VI. Cl. 2; the German Basic Law, arts.20-25; 31; and the Constitution of South Africa, arts. 2, 39, 146-150.The U.S. constitution is a so called first generation constitution, the principal focus of which is the establishment of a government (McIlwain, 20) constrained by the provisions of the constitution itself in the exercise of power.  The German Basic Law is a so called second generation constitution, one that, while concerned with the establishment of a constrained government, emphasizes the limitations of the power of the government to  interfere in the enjoyment by the people of certain specified rights (articles 1-20 of the GBL).  In addition, the constitution itself limits the power of the people to themselves curtail these basic--natural and superior--rights, rights which no government may abridge, except to the extent permitted by the constitutional language itself, because they stand above and beyond the jurisdiction of state. The South African Constitution is a so called third generation constitution, one in which to the focus of the prior approaches to constitutions are added a more active engagement with and connection to international law and the law development of the constitutional traditions of other states.  

With the establishment of a law-government order in which the government is understood to be a creature of law--that is of the higher law of the constitution--but which is also vested with the power to legislate and bind both government and individuals, within the constraints, if any, of the constitution under which it was created, the rest of the hierarchy of la, within, a state follows.  That hierarchy identified both the sources of law deemed legitimate and the precedence each is accorded in relation to the others.  Together these form the domestic legal order of a state.   The Background reading (above) and the two excerpts form state law--Indiana Code 1-1-2-1 and Hierarchy of Law in Georgia--provide illustrations of the usual hierarchy of law in federal and state systems. The Indiana statute is especially useful for its attempt to codify that amalgam of law types within a multilayer system of governments and for its specification of the receipt of English common law in Indiana:

  Sec. 1. The law governing this state is declared to be:
    First. The Constitution of the United States and of this state.
    Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.
    Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.
    Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth,) and which are of a general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.

Most interesting is the precedence of statute over common law and of state law over federal statute except to the extent of federal power.  That would suggest a broad reading of state power and a narrow reading of the federal power to assert control in matters of concurrent jurisdiction. In reality, as law students learn in the introduction to constitutional law--that determination gas been largely left to the federal courts to decide now. Contrast Georgia where, according to the chart created, federal statutes, administrative regulations and judicial decisions touching on federal power tale precedence over their state counterparts.