HE HISTORICAL BASIS AND CURRENT

Instructor’s Manual to Accompany

INTRODUCTION TO

LAW

SIXTH EDITION

Beth Walston-Dunham

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© 2012 Cengage Delmar Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

CHAPTER 1

T

HE HISTORICAL BASIS AND CURRENT

STRUCTURE OF THE AMERICAN LEGAL

SYSTEM

CHAPTER OUTLINE

The Historical Basis of American Law • Before the Government • The Results of the Revolution • The Influence of Political Theories • Balance as the Key to Success

The Modern Legal System • The Sources of Law • The Hierarchy of Law

LECTURE KEYS

• Early American settlers came to escape religious persecution and take advantage of economic

opportunities. Settlers used many of the laws of their homelands, and brought their prevailing attitudes toward religion. Under these laws and attitudes, people were charged and punished by the government for committing acts that were regarded as sinful and thus illegal.

• As the population grew, foreign governments increased their efforts to establish a formal and

permanent influence in the New World by establishing government offices and authorities and imposing taxes on the rich natural resources and products of America.

• Many of the colonists did not want to be under the rule of a foreign government that they believed

would not be responsive to the will of the people and would not allow them to maintain the personal freedoms they had gained by leaving those countries in the first place.

• The need to establish a permanent government structure in order to manage issues on a local basis,

raise a military for defense, and avoid rule by another country was realized. Despite some movement toward creating many small independent nations, representatives of the colonies agreed success was more likely if there was a unified front.

• The concept of crime being equal to what was considered wrong or sinful as defined by those in

authority was based on the naturalist theory—a belief that all persons were born with the ability to distinguish the difference between right and wrong and the knowledge of their responsibility to act in the proper manner.See Application 1.1 and the Point for Discussion.

• Increases in population from different cultures with different mores, values, and rules resulted in a

more diverse group of legal representatives and different opinions of right and wrong. This in turn led to the need for a more detailed and developed legal system.

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• Chapter 1

© 2012 Cengage Delmar Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

• The first formal and international action by the colonies as a collective group was their issuance of

the Declaration of Independence. Today most Americans consider it the bedrock of our nation, but originally it was more or less a formality. Essentially, independence was in name only, and at first was defended by a largely unsophisticated, poorly armed, and disorganized band of citizens against the potential threat of Great Britain and other governments.

• The new central government was guided by the adoption of the Articles of Confederation. The

Constitution was not passed until eleven years later in September 1787.

• The Articles of Confederation bore little resemblance to the current Constitution. Under the Articles

of Confederation:

• each state sent delegates as members of Congress who then nominated and elected a president among themselves; • the delegates wrote and passed all laws; • the delegates acted as judges in disputes among the states; • the delegates negotiated treaties; • the duties assigned the president were to preside over sessions of Congress and act as an ambassador to, and receive representatives of, other governments’ all legal disputes with respect to individuals continued to be dealt with by each state’s own system of justice.

• The Articles of Confederation and Congress were largely ineffective on a local level. The national

government had none of the following:

• “enforcement power”; • judges; • jails; • ways to force collection of the monies that each state was supposed to contribute; • money of its own and no way to get it other than by voluntary contribution; • organization to support a national army; and • staff of government employees to operate the government when Congress was not in session.

• An early and real issue for the permanent government was whether to allow the states to continue in

existence in any sort of individual fashion. Several delegates, including some from the South, believed individual states should be abolished and all people and legal issues should be governed by a central authority. In history, small states within a country often ended up in conflict with one another. In this instance, however, the idea failed to gain popular support. The citizens were fiercely independent and sought to preserve as much personal freedom from government as possible.

• Separate state governments and a unified national government with specific functions were created.

The states were left intact to respond effectively and quickly to the needs of citizens and individual state economies. The national government was formed to protect the fundamental rights of all citizens and ensure that state governments would not interfere with individual rights. The national government would also handle national issues such as interstate commerce, Indian affairs, immigration, and international issues such as treaties for trade and nonaggression.

• The members of the Constitutional Convention agreed on three distinct branches of government,

each with separate duties and all with the obligation to cooperate with and monitor the other branches to ensure that no one branch obtained too much power. This separation of powers was a direct attempt to prevent the monarchy type of government that so many colonists sought to avoid by coming to America.

• The first branch of government created was the legislative branch and was called Congress.

• Congress would be elected by the people (members of the House of Representatives directly by the people, and members of the Senate indirectly—that is, by state legislatures until the Seventeenth Amendment was ratified in 1913).• Congress would retain the sole authority to make statutory law. In this way, the people as a whole would always have significant influence in making the laws that all persons were required to follow. 3 / 4

THE HISTORICAL BASIS AND CURRENT STRUCTURE OF THE AMERICAN LEGAL SYSTEM 3

© 2012 Cengage Delmar Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

• The second branch of government created was the executive branch. The president was given

authority to head the executive branch at the national level. This structure is paralleled in the states where each state executive branch is headed by a governor.

16. Under the Constitution, the president (the head of the executive branch):

• is elected indirectly by the people through the electoral college; • has power to approve or reject laws passed by Congress, although the power is not absolute and the president cannot deny the authority of Congress to enact law if it is, in fact, the will of the majority that such law be enacted (rejection by the president of a law enacted by Congress is known as the veto power and can be overridden by a significant majority of Congress); • has several important functions with respect to foreign affairs; and • has the ultimate duty to enforce the laws of the United States.

• The third and final branch of government was the judiciary, which was needed to protect the

Constitution and serve as mediator of disputes. This branch of government has the authority and responsibility to interpret laws and protect the Constitution from violation by Congress, the president, or the states. Although the Constitution vests the ultimate authority to enforce laws in the president, in practice the judiciary also assists in enforcement when the courts apply law to specific cases.

• Independent operation of the branches but with the power of the branches to influence one another,

better protect one branch from obtaining too much power or using its power unwisely. Each branch can use its specially designated powers to make sure the other branches act within their constitutionally prescribed limits—checks and balances.

• Congress, with the approval of the people, subsequently passed the Bill of Rights, which protects

essential fundamental human freedoms from government infringement on those matters presumed to be inherently personal and a matter of choice for all human beings. The following rights are

specifically protected:

• Freedom of speech, religion, and press; peaceable assembly; petitions for governmental change (First Amendment).• Right to bear arms (Second Amendment).• Freedom from unreasonable invasion of home by the government for purposes of search and seizure of persons or property, or occupation by military other than as prescribed (Third and Fourth Amendments).• Right to have an independent judicial magistrate determine if probable cause exists before a search or arrest warrant can be issued (Fourth Amendment).• Right not to be tried twice for the same crime (Fifth Amendment).• Right not to have persons or property seized without due process (Fifth Amendment).• Right to a speedy and public trial (Sixth Amendment).• Right to an impartial jury in the jurisdiction where the alleged crime occurred or the dispute is governed by common law (Sixth and Seventh Amendments).• Freedom from forced self-incrimination (Fifth Amendment).• Right to counsel in criminal prosecutions (Sixth Amendment).• Right of the accused to know of the crime alleged (Sixth Amendment).• Right of the accused to confront the witnesses for the prosecution (Sixth Amendment).• Right not to be subjected to excessive bail (Eighth Amendment).• Freedom from cruel or unusual punishment (Eighth Amendment) • Freedom from use of the Constitution to limit individual rights not mentioned (Ninth Amendment).• Right of the states to govern on matters not addressed in the Constitution or its amendments (Tenth Amendment).

• The Supreme Court has been increasingly asked to resolve issues that determine the rights of

persons to be free from governmental intrusion into their private lives. From time to time, additional language regarding these freedoms has been added through amendments to the Constitution as Congress and the people have deemed appropriate.

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