Chapter 14 (Chapter Summaries) "The People Making Law" in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

Summary book organization and Chapter 14 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structures of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nature of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

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Chapter 14. 
The People Making Law

A. Introduction

B. Problem 14

--David Schultz, The State of Democracy in North Dakota
--Notes and Questions
-- Shaun Bowler When Is It OK to Limit Direct Democracy

C. The States and the People; Popular Referenda

--K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy
--Notes and Questions
--Clayton Gillette, Is Direct Democracy Anti-Democratic?
--Notes and Questions
--City of East Lake v. Forest City Enterprises, Inc.
--Notes and Questions
--Romer v. Evans
--Notes and Questions

D. Learning Objectives

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A. Introduction


We have been considering the way in which law both serves and organizes the government, that is, the way that law provides the basis for creating and operating a government, also serves as a tool for constraining it, and is a tool that government can use to manage behaviors among its constituents. We have come to understand the way that law plays a critical role in the management of politics. The resulting legalization of politics provides both a basis for managing the assertions of political authority and the language used to engage in politics. In this chapter we consider the residual power of popular sovereignty to project its power directly. The object of study is the extent of the power of popular referenda to “make” law in states and within the federal system. We also consider the extent to which popular sovereignty can be constrained under the U.S. constitutional system.

The student has been examining the structure of the U.S. government and the way that it is specified and managed through a language of law rather than that of politics. More specifically, the student considered the way in which law structures the systems within which politics is organized in the United States. That has involved a closer look at the way that the “higher law” of the United States, its Constitution, both constrains politics, and changes its character. That change in character is bound up in the materials considered in Chapter 10―the role/rule of law. The student should now begin to see how the relationship between law and the state in the United States, one in which law resides both outside (common, customary, and natural law along with private governance systems) and inside (statutes, administrative regulation, assessment regimes) the government. That dual positioning of law creates a political culture in which both obedience to law (as the expression of popular will) and the use of law to constrain the institutions created to express the popular will exist simultaneously, and in which the language of politics is sometimes expressed in law and the language of law is sometimes understood in political terms. Lastly, the materials sought to help the student understand that the enormity of national political power may itself be constrained, though to what extent is still unresolved, by the higher powers of international law and custom, expressed either as the consensus of states (through treaties and conventions) or through the customary expectations of the international community from guidelines and principles to jus cogens―the fundamental, overriding principles of international law from which no derogation is ever permitted, for example slavery, protection of ambassadors, the illegitimacy of piracy and the like).

Part III then shifted the focus of analysis from the system of law to the system of government through law. The student was introduced to the fundamental character of the division of governmental power in the United States. All political authority (other than that retained by the people as ultimate “owners” of national political power is divided horizontally among three branches of government (and a fourth ostensibly subordinate administrative branch) and vertically between the general government in Washington, D.C. and the governments of the states of the Union. This division of governmental power is founded on three great legal principles of political organization―separation of powers, checks and balances, and federalism. There principles, in turn, are meant to further the two core principles of American political organization, two core principles may be at their heart be (consciously) irreconcilable―that power must be fractured to reduce the likelihood of tyranny by any individual or institution of government, but also that government must be organized to be efficient, to enable its institutions to meet the core objectives of government. The anti-tyranny principle is furthered by power fracture within the general government and federalism between the general government and those of the states. The efficiency principle is also furthered by the separation of powers (but here understood as granting to each branch the power to assert its authority fully). Both efficiency and anti-tyranny principles are furthered by checks and balances―a notion that both encourages cooperation between branches to engage successfully in the business of government, but also as an anti-tyranny mechanism to the extent that no branch can govern alone (for long) without the cooperation of one or more of the other branches, or of the states.

In the process of considering first the issue of separation of powers between the president and Congress in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)), the student was introduced to the two principle approaches to constitutional interpretation used by the Supreme Court to interpret and apply the structural limits of the Constitution on the powers of each branch and the need and form of necessary cooperation among them. These two forms―formalism and functionalism, serve as the basis for a number of more precise interpretive tools that judges apply (and argue about the legitimacy of each)―textualism, original understanding, and living constitution approaches to reading the text of the Constitution. Formalism tends to privilege the text of the document over the intent of its authors or the objectives of the provision. It suggests a narrow role for the courts―to read the text as it is written and to leave to the political branches to sort out the brilliance or folly of the words they have imposed on the people as law. Functionalism tends to view text as a gateway that is meant to serve the intent of the drafters and the objectives of the statute. Text might have to be reworked, as necessary, to ensure that the words of the specific provision at issue do not interfere or impede the objectives of the statute or the intention of its authors. See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, ed. Amy Gutmann (Princeton: Princeton University Press, 1997); William Michael Treanor, “Against Textualism,” Northwestern Law Review 103 (2009): 983–1006.

The student also considered the complexity of separation of powers and checks and balances within a government that has vastly outgrown the original conception of state power envision in the late 18th century. For that purpose we considered the way in which the Courts have read into the U.S. Constitution a structural role for the emerging administrative state that arose in its modern forms from the late 19th and 20th centuries. What we discovered was the malleability of American legal constitutional structuralism. What sounded like a rigid commitment to separation of powers, checks and balances in the Steel Seizure Case, becomes more protean concept when extended to the issue of the quasi-judicial, quasi-legislative, and quasi-executive functions of administrative agencies. In place of the formalism of the structural division of authority among the three principal branches of the general government, the Supreme Court has read into the Constitution a much more flexible and forgiving power to amalgamate all power in administrative agencies (Mistretta v. U.S.), as long as they remain nominally subordinate to the principal branches of government and as long as there is some (barely) intelligible principal (Whitman v. American Trucking Associations).

In this chapter, the student takes up the legal framework within which the people might exercise their residual power to make law, within the context of the federalism constraints of assertions of governmental power. Despite the organization of the general government as a Republic in which all power is exercised through representatives of the people, states have sought to permit people a direct role in the operation of the state. Though the people exercise residual sovereignty, the expression of that sovereignty through the power of direct lawmaking came late to the Republic (and remains forbidden within the legal framework of the federal constitution).

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The Chapter begins with K.K. DuVivier’s Out of the Bottle: The Genie of Direct Democracy, which provides a helpful historical analysis of the concept of direct democracy. Next, the chapter considers Clayton Gillette’s Is Direct Democracy Anti-Democratic? That reading analyses the negative effects of direct democracy and argues about the capture of the direct democracy process by special interests, its adverse effects on minorities, and that direct democracy is inherently illegitimate because it lacks the deliberative and informed approach to legislation that can be exercised by an elected legislature. Moreover, the chapter then looks at City of East Lake v. Forest City Enterprises, Inc., which suggests the rule of law framework within which direct democracy may be exercised in states. Finally, the texts finishes with a case and notes and question about that case. The final reading, Romer v. Evans, provides an elaboration of the structural legal constraints on direct democracy exercised by the citizens of states and suggests the way in which federalism itself constrains the courts in the way they may interpret the law of states when applying federal constitutional law.

Learning Objectives:

(1) This chapter will cover the extent of the power of popular referenda to make law in states and within the federal system and the extent to which popular sovereignty can be constrained under the U.S. constitutional system.

(2) The student will work through a problem that will test the student’s knowledge of the benefits and powers of referendum power in a state.

(3) The student should understand the concept of direct democracy through a reading of David Schultz’s “The State of Democracy in North Dakota,” DuVivier’s “Out of the Bottle: The Genie of Direct Democracy,” and the notes and questions that follow.

(4) The student should be aware of the constraints of direct democracy through a reading of Gillette’s “Is Direct Democracy Anti-Democratic?,” City of East Lake v. Forest City Enterprises, Inc., and Romer v. Evans.

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