Leducate Explains: American Law

 

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This LedEx post explains American Law, where it originated from, its structure, and the similarities and differences to the UK’s system. 

Introduction

It is useful to compare the legal systems of the United Kingdom and the United States of America for anyone interested in politics, history and law. English political thought was influential amongst the Founding Fathers of the United States. Further, the United States began as 13 colonies of Great Britain before the Treaty of Paris in 1783 agreed to independence for the Americans. Hence, there are many crossovers between the legal systems of the United Kingdom and the United States. It is useful to think of the American system as the 18th-century English system; in spite of the differing names, striking similarities exist between our two nations, much more so than with the legal systems of continental Europe. 


To give a brief overview, American legal history begins in 1787: the ratification of the Constitution of the United States of America. The Articles of Confederation provided the initial legal framework for the Union between the 13 states; the United States was a confederacy wherein the 13 states retained vast autonomous powers. The Founding Fathers considered this arrangement to be inadequate for many reasons including:

  • It lacked a clear ‘referee’ who could resolve disagreements between the states

  • This ‘central’ American government did not have clear powers, for instance each state could conduct her own foreign policies and issued their own currencies

  • The central government was weak – 9 out the 13 states had to approve a measure before the Confederation could take united action.(1)

The Constitution of the United States, read in tandem with the Declaration of Independence, provides the ark for the American Republic. 

The United States is a Federal System

The United Kingdom is a union between four nations where each constituent nation is very centralised. The United States comprises 50 states and the District of Columbia commonly known as Washington D.C. (and other islands and territories) – this is a federal system. 

The federal system distinguishes between powers of the government of the United States, commonly called the Federal government, and the State governments. An American citizen is a citizen of the Federal Republic and his state (if he lives in Washington D.C. then all affairs are governed by the Federal government). The Federal government’s powers are limited, officially, to areas defined in the Constitution including the regulation of inter-state commerce, patents and copyright, the right to declare war, issue currency, conduct foreign relations and oversee immigration law. 


The States may regulate all affairs outside that list.(2) State rights include the maintenance of law enforcement, the right to vote in state elections, education and healthcare. By living in different states, Americans may live under different regimes for certain aspects of life, for instance the minimum age to obtain a driving licence. However, all American citizens have the “privileges and immunities” of the Constitution; they may vote in Federal elections, serve on juries and in the army.

The Structure of the American System

The Constitution was designed to distribute powers between differing ‘branches’ of government. This is a doctrine known as the ‘separation of powers’. There are three branches of government at the Federal and State level: the Executive, the Legislature and the Judiciary. 

Federal

The Executive

The Executive comprises the President, the Vice-President and the Cabinet of the United States. The President is the Commander in Chief of the Army, Navy and Militia; he has the power to make treaties, nominate candidates for public office including the judiciary, and ensure the faithful execution of the Laws. Unlike the United Kingdom, the ceremonial and prerogative powers are held by the Head of State – there is no equivalent of an office of Prime Minister. A President is elected every four years and no person may be elected more than twice. Compared with the British Prime Minister and the King, the American President carries significant power. 

The Legislature

The Legislature mimics the English Parliament more closely. Congress comprises two legislative houses (a bicameral legislature): an upper house called the Senate and a lower house called the House of Representatives. Congress reflects the representation of the 50 states (in the Senate, Washington, D.C. has no representation). Unlike the United Kingdom, both houses hold equal legislative oversight meaning a law cannot be passed without the consent of the House of Representatives and the Senate. 

There are differences between the two legislating chambers: the Senate is permitted to oversee a trial of Impeachment and confirm appointments to public office. The numbers of congressman in the House of Representatives are decided according to the decennial population census of the United States whereas there are two senators for each state regardless of the population size. A congressman is elected by the population of a congressional district, that is an area within a state whose size is determined by the population census. A senator is elected by all the voters of a state, a recent development since the 17th Amendment to the Constitution in 1913 – hitherto, senators were chosen by the state assemblies instead of direct election. All congressmen are elected every two years compared with senators, who enjoy six-year terms. 

The Judiciary

The Judiciary has a much wider scope in the United States unlike the United Kingdom. The United States uses the English common law system. In the UK, however, there is no single document carrying supreme status as the Constitution of the United States; English judges are therefore subordinate to the will of Parliament. The Supreme Court of the United States is the final arbiter on all matters of law; it cannot be overruled except by constitutional amendment that requires a two-thirds of the House of Representatives and the Senate, as well as ratification by at least two-thirds of all states. Supreme Court judges and all Federal judges are nominated by the President before confirmation in the Senate. 


State

The structure of the state government reflects that of the Federal government; each state has an Executive, Legislature and Judiciary based in the state capital city. The competence of the state government is limited to the state laws but each state has a distinctive political and legal culture. The key difference between the Federal and state governments is that the Executive branch contains a Governor who is elected every four years like the President – his role is to ensure the faithful execution of the state laws and holds emergency powers over the affairs of the state (the resources of the Federal government can be requested). 

Conclusion

The American system amends the basic structure of the English system. The Executive has the same powers of the British executive branch, a bicameral legislative body exists and a common law system is used. The United States has, however, an Executive where the Head of State and Head of Government are the same; the Senate is a full legislative chamber unlike the House of Lords that acts as a revising chamber; and the judgments of Supreme Court of the United States are more consequential. The federal system reflects the geographic diversity of the United States; each state has a much stronger political and legal identity than the counties of England or the other nations of the United Kingdom. 

For more information on the separation of powers, see Leducate’s article on The Royal Prerogative.

Written by Nick Haddad

 

Glossary box

Ratification – the final stage whereby a text or treaty becomes law. In terms of treaties between nation states, this process occurs when the terms of a treaty have been agreed and the nation states have agreed to be bound by the treaty.

Confederation/confederacy – a political system whereby several territories agree to be joined by an agreement or treaty. Such a system can create looser connections (such as an alliance) or a more formal organisation (a nation).  

Bicameral – a legislature that comprises two, independent voting chambers 

Impeachment – the process whereby the House of Representatives can bring charges against the President, Vice President or any other civil officeholder; with a simple majority of congressmen, the House of Representatives can trigger a federal impeachment trial in the Senate where it will decided to convict or acquit the officeholder (there has been no successful conviction from a federal impeachment trial in American history). 

Decennial – a process that occurs once every ten years. 

 


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