"Michigan House of Representatives Floor" by Flickr user "lincolnblues." CC BY-NC-ND 2.0.

An MSNBC report by liberal journalist Rachel Maddow strongly condemned the current Republican leadership in Michigan for not following the state constitution. Instead, Republicans have passed bills subject to “immediate effect” without the required constitutionally required two-thirds majority vote in both houses of the legislature.

After more than a year of this, House Democrats have filed for a preliminary injunction and a writ of mandamus in state court, demanding that House Republicans actually count votes (that would be a mandamus order) and demanding an injunction against laws passed for “immediate effect” without the required two-third majority vote. They won. (Remember, this is just preliminary, and the Republicans have already appealed even this. Also note that I am not licensed to practice law in Michigan. Finally, one of the laws at immediate issue deals with graduate students unions — and I am an uneasy member of the graduate student union here in San Diego.)

Should a state legislative body be insulated from judicial scrutiny of its “internal” processes? Is ignoring actual vote counts, and simply declaring something to have “immediate effect” sufficient to make it so in the state of Michigan? What is the relationship between the three branches of government?

The Role of the Courts in the Legislative Process

The extensive Republican appeal (filed by the State Attorney General’s Office, an interesting intervention of the executive branch in the matter) argues that state courts have no business interfering with the legislature at all: “The circuit court’s enjoining of the immediate effect given Public Acts 45 and 53 of 2012 is unprecedented, and was an unprincipled decision barred by separation of powers principles and court precedents.”

Although I am not a Michigan lawyer, I find it hard to believe that the separation of powers principle in Michigan truly prohibits a court from ruling on legislative actions. In fact, in less than five minutes of searching, I found court precedent in favor of my belief — on the Michigan Legislature’s own website, in their own description of Article IV § 27, in case called Frey v. Department of Management and Budget.

First, what does Article IV § 27 of the Michigan Constitution say?

No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.

Frey v. Department of Management and Budget

In 1987, the Supreme Court of Michigan ruled that two-thirds rule of Article IV § 27 must be followed, and then proceeded to delay a law until ninety days had passed (note that this dealt with an initiative combined with legislative action, which is arguably different):

We hold that art 4, § 27, does apply to initiated laws enacted by the Legislature. Therefore, since the initiative was not given immediate effect by a two-thirds vote of each house of the Legislature, 1987 PA 59 may not go into effect until ninety days after the end of the session at which it was enacted. We affirm the decision of the Court of Appeals. Frey v. Department of Management and Budget, 429 Mich 315; 414 NW2d 873 (1987).

The Republican appeal dismisses all of Frey as essentially meaningless to the current fact pattern, focusing on its relevance only to the issue of referendums, and ignoring entirely the core argument above (presumably deciding the referendum language was binding, but the immediate effect language was merely dicta).

I find it difficult to ignore the language in Frey that a “two-thirds vote of each house” is required. Frey assumes the power of the Michigan courts to rule on legislative issues like two-third majorities, and Frey affirms the power of the courts to say when a law goes into effect. The Republican appeal fails to deal effectively with Frey.

Other Cases

Whatever the detailed reasoning of other cases cited by the Democratic response to the Republican appeal, it is at least clear that the circuit judge’s order is not “unprecedented.”

Thus, for example, Michigan Taxpayers United, Inc. v. Governor, 600 NW2d 401 (1999), where the Court of Appeals of Michigan upheld as “proper” the state legislature’s granting “immediate effect” the law in that case — but affirmed the right of the courts to rule on the properness of legislative process:

Whether the Legislature properly gave immediate effect to the bill is a question of law that we review de novo. (403)

The Role of the Courts and the Rule of Law

Marbury v. Madison, 5 U.S. 137 (1803) succinctly stated the role of the judiciary in the American system: “It is emphatically the province and duty of the judicial department to say what the law is.”

Without the check of the judiciary, there would be no true rule of law. The judicial branch exists because the legislative and executive branches — regardless of their own agreement, and regardless of the size of their majorities — must be checked. The solution to a court ruling on the constitutionality of an act is to change the constitution (but it’s hard to do that, unless you’re running an initiative in California).

Arguing the merits of their process before the courts is proper. Telling the courts to “leave us alone,” and accusing a judge of acting “improperly” for interfering with the legislative process — that’s not the rule of law. Violating your own state constitution just because you’re the Republican majority is also not the “republican form of government” guaranteed under Article IV of the United States Constitution, either.

The Elephant in the Room: The Federal Guarantee Clause, Due Process, and Equal Protection

“The United States shall guarantee to every state in this union a republican form of government,” reads Article IV, Section Four. The Supreme Court has held that this guarantee is given to the United States Congress, who affirms a state’s “republican form of government” every time it seats new members from that state. (Note that a “republican form of government” means a representative democracy, not rule by the Republican Party.)

More powerful in practice than Article IV, the Fourteenth Amendment prohibits the denial of individual rights by state governments. If the federal government were to be involved in the Michigan situation, it would likely involve arguments that House Republicans have denied “due process” and “equal protection” of the law to the citizens of Michigan.

Additionally, the Voting Rights Act of 1965 — which considers parts of Michigan to be subject to extra scrutiny due to a history of civil rights violations — would give additional weight to federal intervention in Michigan.

The Justice Department has the power to investigate under the Voting Rights Act. Citizens may also sue in federal court to enforce the Act. So far, this issue seems confined to Michigan state courts — but it may not stay that way.

Conclusions

The Republican appeal — written by the state’s Attorney General — argues that the court’s preliminary injunction ought to be reversed as an “unreasonable and unprincipled decision barred by separation of powers principles and court precedents.”

I argue, instead, that there is nothing “unreasonable” or “unprincipled” in the lower court’s decision, even if a more complete analysis of the law supports the actions of House Republicans.

Each branch of government has its purpose in the American system, and it is, as Marbury stated so long ago, the purpose of the judiciary to rule on law. Thus, a judge doing so is necessary to maintain the rule of law and a republican form of government — it is certainly not “unprincipled.”

Legislatures should not be — even if they sometimes are — insulated from judicial scrutiny. Ignoring one’s own constitution is illegal and morally wrong. A judge ordering a preliminary injunction while a trial investigates that possibility is both reasonable and principled. And an order of mandamus essentially requiring legislators to follow their own constitution does not appear to be much of a burden — unless that isn’t already happening.

More Resources

Some important primary source documents:

• The Democratic request for an injunction and writ
• The preliminary court order
• The Republican appeal
• The Democratic response

Allgeyer v. Louisiana

As I discussed earlier, Allgeyer v. Lousiana, 165 U.S. 578 (1897) expressed the unanimous opinion of the Supreme Court that freedom of contract was a fundamental right protected by the due process clause of the Fourteenth Amendment. While this case itself was applied to limitations of out-of-state businesses operating in Louisiana, its valorization of the “liberty of contract” was extended to employment regulations as well (Hall 398).

Holden v. Hardy

Still, despite this valorization of contract as liberty the year before, hints emerged of limitations on contract that would emerge more fully in the twentieth century. In Holden v. Hardy, 169 U.S. 366 (1898), Justice Henry Billings Brown “accepted the idea that employer and employee do not stand on an equal bargaining footing” (Hall 399):

the proprietors of these establishments and their operatives do not stand upon an equality, and … their interests are, to a certain extent, conflicting. … In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them.

As regulations limiting children’s working hours in factories are a valid exercise of a state’s police power — which also includes enforced vaccination, quarantine, and other protections of the public’s general welfare — so too is an act that seeks to protect workers in a particularly dangerous occupation (mining).

Lochner v. New York

At the turn of the century, the “triumph of contract” was effectively constitutionalized: Lochner v. New York, 198 U.S. 45 (1905) held that the “liberty of contract” was a fundamental right protected by the Fourteenth Amendment. Lochner invalidated legislation limiting the workweek to 60 hours on the theory that

the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

The Lochner Court construed the law as an absolute interference “with the right of contract between the employer and employees,” then declared that “the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” The Fourteenth Amendment’s Due Process Clause — originally intended to overturn Dred Scott and to prohibit so-called “Black Codes” — prohibits states from depriving any person of life, liberty, or property without due process of law. To the Lochner Court, the right to buy and sell labor through contract was a “liberty of the individual,” and was thus constitutionally protected.

The end of Lochner

Lochner was finally challenged successfully during the Depression, in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), which finally allowed for a general minimum wage in Washington State — and thus overturned the maximalist version of freedom of contract.

The black codes often required “persons of color” to sign year-long labor contracts, with wages payable at the end of the year, and punished “vagrants” found in public with mandatory labor. Newly freed slaves were often prohibited from working in many occupations and from acquiring land. But even when not forced by law or force to sign such contracts, many African-Americans — with limited options — signed such contracts voluntarily.

Despite their unfair terms and limited voluntariness, Southern courts enforced these contracts. (It was, in truth, extremely difficult for African-Americans to challenge their terms, since the codes also limited access to the courts by former slaves.)

The Freedmen’s Bureau, established by Congress in 1865 as part of the Department of War, tried to mitigate the black codes. It attempted to “provide food, shelter, education, and legal protection to the recently emancipated slaves” (Hall 266), and even heard cases where the state judicial system was inadequate or lacked due process (266). According to Paul Cymbala, the Bureau also supervised contracts — although that might well have reinforced the power of “contract slavery” by encouraging freedmen to voluntarily sign such contracts.

Regardless of the racial basis of such contracts, the law continued to pretend, at least into the twentieth century, that labor contracts were the result of free bargaining between equal parties. In Allegeyer v. Louisiana, 165 U.S. 578 (1897), the Supreme Court explained that the Fourteenth Amendment guaranteed “liberty of contract” — 

the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.

Thus, the Fourteenth Amendment had shifted from a device to free enslaved labor, to one that consigned laborers to effective enslavement and terrible working conditions — provided there was a contract to that effect.

No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.

In Law in America: A Short History, Lawrence Friedman explains that “the clause was probably intended to make it impossible for states to interfere with the rights of creditors [or] to go too far in helping out debtors” (53). Legislatures had been known to pass laws relieving influential persons of debt, for example, a practice that was both unfair to those less influential and potentially ruinous to the overall economic system:

There was a shortage of hard money in the country, no real banking system in the modern sense; yet the whole structure of enterprise floated on a sea of credit. Businesses sold on credit and bought on credit. … When one link in the chain began to weaken, there was trouble up and down the line. (53)

Aside from the appearance of this clause in 1787, the law of contracts before the nineteenth century was minimal, especially as compared to it’s more developed cousin, the law of property. But the nineteenth century — which Friedman called “the golden age of contract law” — saw contract law in the United States become the pre-eminent form of private law.

The common law before the nineteenth century required contracts to be fair and reasonable: a “sound price warrants a sound commodity.” But by mid-century, William Wetmore Story’s famous treatise on contracts recognized that this basic understanding had radically altered. Contracts now required only “mutual assent of the parties” and “valuable consideration.” Fairness — roughly defined as similar levels of benefit for each party — was now irrelevant. Kermit Hall‘s American Legal History: Cases and Materials puts it this way:

the law of the nineteenth century recognized and supported the belief that unfair bargains were necessary for the commercial and industrial development of the day.

Martin Horwitz, in The Transformation of American Law, 1780-1860, adds that

judges and jurists finally reject[ed] the longstanding belief that the justification of contractual obligation is derived from the inherent justice or fairness of the exchange. In its place, they asserted for the first time that the source of the obligation of contract is the convergence of the wills of the contracting parties.

Put another way, “the law of the nineteenth century recognized and supported the belief that unfair bargains were necessary for the commercial and industrial development of the day” (Hall 197).

Seixas and Seixas v. Woods

The shift to a caveat emptor model of contract — distinct from the earlier common law and also from then-current European civil law — emerged early in the newly formed United States.

In 1804, a court in New York rejected the idea of an “implied warranty” absent intentional fraud, and required that, “without a warrant by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects.” Judge Kent argued that this was unlike civil law, but was indeed “well and elegantly vindicated … as most happily reconciling the claims of convenience with the duties of good faith.”

The New York court argued — as courts often did (and do) that this articulation was long-standing, and nothing new at all — even though Martin Horwitz explains that this was not the case in the seventeenth country at all:

[A]s late as 1792 Blackstone’s successor in the Vinerian Chair at Oxford, Richard Wooddeson, proclaimed the “sound price” doctrine to be good law (167).
Nonetheless, the trend away from the “sound price” interpretation of contracts continued.

McFarland v. Newman

A Pennsylvania case from 1839, McFarland v. Newman, Watts (Pa.) 55, argued that any adoption of the “civil law maxim … that a sound article is warranted a sound price” by the common law was a mistake:

The [common-law] judges, in pursuit of a phantom in the guise of a principle of impracticable policy and questionable morality, broke away from the common law.”

Instead, Judge Gibson argues, the “maxim caveat emptor, disposes of all,” unless there is “willful misrepresentation.” Gibson goes on to explain the principle:

the naked averment of a fact is neither a warranty itself, nor evidence of it. … [I]t certainly may be taken into consideration … but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation.”

Seymour v. Delancey, et al.

Back in New York, the highest court of appeals rejected a lower-court opinion finding that equity forbid ordering specific performance of contracts with very unequal levels of consideration. The lower-court judge had argued that there was a

“very great weight of authority against enforcing a contract, where the consideration is so inadequate as to render it a hard bargain, and an unequal and an unreasonable bargain.”

On the contrary, wrote the higher-court majority in Seymour v. Delancey, et al., 3 Cow. (N.Y.) 445 (1824), “mere inequality in value” was “not sufficient … in withholding a decree for specific performance.” As in Pennsylvania, contracts had to be enforced, “where thee is no fraud, misrepresentation, imposition, or concealment of facts.”

Kermit Hall suggests that this New York opinion “anticipates a modern marketplace” where “purchases are constantly made upon speculation” (202). The court prefers to support this new marketplace of “risky investments,” even “at the expense of those who might enter into blatantly unfair bargains out of ignorance” (202).

Fletcher v. Peck

As I noted above, unlike most other areas of non-criminal law, contracts have a constitutional component. As a result, state legislatures cannot “impair” existing contracts.

The implications of this clause were felt early in United States history, when the 1795 Georgia legislature sold land for less than market value — benefitting many legislators and other government officials. The 1796 Georgia legislature then attempted to rescind the sale because of the blatant corruption involved, but in Fletcher v. Peck, 10 U.S. 87 (1810), the Supreme Court held this rescission by the legislature unconstitutional:

The state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.

Justice Marshall added that, if this were not the case, then “[a]ll titles would be insecure, and the intercourse between man and man would be very seriously obstructed.”

(The issue was eventually handled by an act of Congress in 1814 that indemnified purchasers with a buyout, instead of rescinding the contract of sale.)

Antebellum Conclusions

If it’s fair to say, as Kermit Hall does, that before the nineteenth century “a legally enforceable contract had to be fair,” then it’s also fair to say that caveat emptor — ”let the buyer beware” — triumphed early on the 1900s:

[C]ontract law generally favored sellers over buyers and employers over laborers and served as an instrument that aided the industrial and commercial entrepreneurs of the nineteenth century. This led to the “triumph of contract” over property, tort, and equity, as the law came “to ratify those forms of inequality that the market system produces.” (196-97)

The Civil War did little to change contract law, even if contracts to own persons were no longer enforceable. (Note that the Contracts Clause does not apply to the federal government, so there was no Contracts Clause problem with Abraham Lincoln’s Emancipation Proclamation.)

Modern contract law has added some complexity to the doctrine of caveat emptor. Many states have added statutory provisions that create “implied warrantees of merchantability,” for example, and the United Kingdom has moved away from it for consumer purchases. Still, in general American courts have not strayed too far from the rule (except Louisiana, which continues to follow the civil-law doctrine of “redhibition”: “a sound price warrants a sound commodity”).

Let’s begin with Epperly’s argument that, because Obama is “mulatto,” the 1857 case of Dred Scott means — assuming the Fourteenth Amendment never passed — he cannot be president because he cannot be a citizen:

As Barack Hussein Obama II is of the “mulatto” race, his status of citizenship is founded upon the Fourteenth Amendment to the United States Constitution. Before the [purported] ratification of the Fourteenth Amendment, the race of “Negro” or “mulatto” had no standing to be citizens of the United States under the United States Constitution.

There are many problems with this claim. First, and most obviously, Dred Scott, by its own admission, does not apply to the case of Barack Obama:

And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country, and sold as slaves. Dred Scott v. Sandford, 60 US 393, 403 (1857).

Since Barack Obama is not the descendant of an African imported to the United States to be sold as a slave — his father was a Kenyan who went to Hawaii to study at the university, not to be a slave — Dred Scott itself says it is inapplicable.

Dred Scott, via Wikipedia

If we go ahead and ignore the Fourteenth Amendment, and look at early 19th-century law to see if Obama could have run for president, we are also forced to conclude that, at least theoretically, he could have done so. Before that amendment, states determined who was a citizen, not the federal government, though the Constitution then makes rules about who can become president:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.

When admitted to the Union in 1818, Illinois did not exclude either “Negroes” nor “mulattos” from citizenship nor from voting, although its 1848 constitution restricted voting to only “white males.” Thus, in Illinois after 1848, Barack Obama may have been a citizen, but neither he nor his mother (born in Kansas) could have voted. It is unlikely he could have been elected, but not explicitly forbidden. (Perhaps this is the state of society Epperly would like to return to?)  The modern Illinois constitution has no such restriction, of course.

Generally, in most states, all men — white or otherwise — who owned property could vote in early America. Later on, in the 1820s – 1840s, property restrictions were lifted, and new limitations on race were instituted instead. Thus, Obama — a property owner — could have voted in many or most states until at least the 1820s, despite being part African. (Later, of course, he would have been excluded under many state constitutions, even as a property owner.)

The Naturalization Law of March 26, 1790 (1 Stat. 103) — and subsequent naturalization laws before the Civil War — only allowed “free white men” to become citizens through naturalization. But that would only restrict Obama’s father, since Obama himself was born in the United States (although not until 1961, two years after Hawaii became a state). He had no need to be “naturalized.”

The Supreme Court has never ruled on the meaning of “natural-born citizen,” but even commentators in the nineteenth century assumed that anyone born in the United States was a “citizen,” whatever their color — and whether they could vote or not. As early as 1829, William Rawle agreed with this, as did Attorney General Edward Bates in 1862. The 1898 case of United States v. Wong Kim Ark, 169 US 649 cites an earlier (1844), antebellum New York case to establish that those born in the country are citizens, regardless of race:

Witnesses verify statement of Wong Kim Ark, via Wikipedia

That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke, (1844) 1 Sandf. Ch. 583.

Epperly attempts to argue that this part of Wong Kim Ark is mere dicta, and therefore not binding, but that does not change its persuasive authority, nor does negating its binding authority mean that its opposite is therefore true. He attempts to argue that two other cases are instead controlling (although his quotations are at least as much obiter dicta as are those of Wong Kim Ark).

The first, Minor v. Happersett, 88 U.S. 162 (1874), says that those born of two citizen-parents are definitely citizens. It says that “doubts have been raised” about children not born of citizen-parents — but then goes on to say, “For the purposes of this case it is not necessary to solve these doubts,” Id. at 168. In other words, Minor says nothing at all about Obama’s situation, and in fact disclaims any attempt to say that it does. (Interestingly, I’d say the case actually strengthens the arguments against Epperly in some sense, because it makes it clear that women have always been citizens, even when they couldn’t vote — so even if “mulattos” couldn’t vote, they could be citizens, just like women.)

The second, Perkins v. Elg, 307 US 325  (1939) is of limited relevance for similar reasons, since its holding involves a child of two United States citizens, not a child of a citizen and non-citizen. This is the exact point Epperly emphasizes — but fails to realize that Perkin’s holding says little or nothing about Obama. If Elg is a citizen because both her parents were citizens, it is a logical fallacy to say that Obama is not a citizen because one of his parents was not a citizen. Put another way, simply because it is sufficient to have two parents who are citizens does not mean it is necessary. Proving sufficiency does not prove necessity, in law or in life.

Official portrait of Barack Obama, via Wikipedia

In short, Obama was born in the United States. Regardless of the citizenship status of his parents, that would make him a citizen according to standards of the nineteenth century and today — even without the Fourteenth Amendment.

As a side note, I tried to figure out his differentiation between “political rights” and “civil rights,” but I couldn’t follow his (non-)logic. The best approximation I could find came from Epperly’s site, in an article he wrote on citizenship, which claims that the 14th Amendment granted “civil rights” and the 15th (for African-Americans) and 19th (for women) granted “political rights,” but neither granted the “natural rights” required to hold office. In other words, neither women nor African-Americans should be able to hold elected office. I could find no independent support for this in the law. 

Related articles

• Lawsuit claims Obama can’t be president because he’s ‘mulatto’ (thegrio.com)
• Ron Paul Versus The Fourteenth Amendment (outsidethebeltway.com)

Specifically, the Supreme Court ruled 5-2 against the old Charles River Bridge Company, saying that Massachusetts had not violated the federal constitution’s Contracts Clause — a victory, it was held at the time, for state’s rights (as was Dred Scott). Justice Taney, generally very conservative and pro-property rights (and incidentally in favor of preserving slavery, as abolition would deprive owners of property), ruled against the contracts claim of the private corporation in favor of the public good:

While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. Charles River Bridge, 36 U.S. at 548.

Taney aligned the “public good” with progress and technological improvements. Ruling in favor of the entrenched Charles River Bridge Corporation would mean that the country would “be thrown back to the improvements of the last century, and obliged to stand still.” Id. If an exclusive monopoly were upheld, then incumbent highway corporations would hold back development of new railroads and canals, which were booming as the new technologies of the nineteenth centuries.

New developments and new approaches had permitted a new corporation to build a new bridge at a lower cost — and to make it free within a few years of its opening, while still turning a profit for its investors. But in doing so, the profit-making potential of the old bridge was destroyed (although investors had already made back their initial investment multiple times over).

But hadn’t the old company taken a risk initially? Didn’t its investors deserve to reap their new profits because they had taken the risk initially? Wouldn’t setting a precedent that their state-granted monopoly could be limited later actually inhibit future investment?

If these questions all seem rather familiar in the 21st century, it’s because these are the same kinds of arguments advanced by patent and copyright holders today. Pharmaceutical companies want their patent monopolies to extend further, and argue that failing to grant a sufficient monopoly would inhibit development and investment. Music and movie companies argue that their copyright monopolies should extend even further than it does now — because otherwise creation and investment would suffer.

Taney said “no” to this argument in 1837. I’ll ask the obvious question, then: did this decision to limit a monopoly contract reduce investment and technological development in the nineteenth century? The (equally obvious) answer is, “no”: the nineteenth century gave us railroads, the telegraph, the telephone, and much, much more. If there’s anything we can learn from Taney’s 1837 decision, it’s that minimizing monopoly rights does not inhibit development — and, I think, the reverse is even more likely.

It’s a lesson we would do well to keep in mind when considering the length and extent of patent and copyright monopolies.

1. The common-law system of precedent, where higher court decisions are binding on lower courts, as opposed to the civil law system, where courts merely interpret statutes.
2. Common laws or “the common law,” created by judges and not by statutes, that bind people equally as much as any statute. They are not passed by legislatures, and are instead considered to have emerged either as encapsulations of general behavior and morals, or as increasingly accurate representations of universal laws. These are ”long established local customs having the force of laws.” Swift v. Tyson, 41 U.S. 1, 18 (1842).

When the United States Constitution bound the states together in 1789, the common law (in sense #2) — inherited largely from England — was slowly but inexorably being replaced by statutory laws that often, but not always, codified earlier practices. In 1842, the Supreme Court wrote that court decisions “are, at most, only evidence of what the laws are; and are not of themselves laws.” Swift, 41 U.S.  at 18. They continued, “The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws.” Id. Common law is this second understanding.

While this second understanding of law has died out in its pure form, the common-law system of precedent, continues today and — despite being nowhere explicitly written into the Constitution (though it is arguably implicit) — continues to separate the American (and other English-derived) systems from the civil-law approaches of Europe and elsewhere.

Also important to remember when discussing this issue is the federal system of the United States, in which federal power is defined within the Constitution, and all other unenumerated powers are — in the words of the 10th Amendment — ”reserved to the States respectively, or to the people.” Even as federal common law continued to be restricted, state common law remained unaffected by these federal Supreme Court decisions (though the trend was similar).

Criminal Law

The Supreme Court in United States v. Hudson & Goodwin, 11 U.S. 32, 34 (1812) took us down the path of restriction the first kind of common law (that of “local customs having the force of laws”) when it made it clear that there was no federal common law of crimes: “The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence (sic)” (this is also known as nulla poena sine lege). Criminal prosecutions in federal courts required a federal statute — but no mention was made of civil (or commercial) law until Swift in 1842 (which found there was, indeed, a federal civil common law — a decision which remained until overturned in 1938). Note that the Court did not rule on the status of state common law in regards to crimes — this was a decisions left to the states themselves.

Why was there no federal common law of crimes? The Court reasoned that the judicial branch is granted only limited powers by the Constitution, and that its only implied powers are contempt of court and the enforcement of court orders, since these are necessary to, and required for, the basic functioning of any court. Criminal laws, on the other had, require an explicit grant of power to courts: “all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.” Hudson, 11 U.S. at 34.

Civil, Commercial and Tort Law

It is not immediately obvious to me why the same logic the Supreme Court used in Hudson would not apply to all federal common law, including commercial and other civil law matters, but nonetheless the Supreme Court did not hold this to be the case until Erie Railroad Co. v. Tompkins in 1938.

Instead, likely driven by “the connection between legal rules and nineteenth-century economic growth,” the Supreme Court in Swift allowed federal district judges to develop federal common law independent of state decisions and laws (American Legal History, 163). Without this rule, Justice Story argues in Swift, the boom in interstate commerce made possible by the railroads and the telegraph could be dampened by uncertainties in the enforcement of commercial transactions.

Still, the ruling fell on the side of a stronger federal government, and not on the side of state’s rights. Nonetheless, it was supported even by the Southerner Justice Taney, who was generally very pro-state’s rights, partly because of its economic importance. (It does fall in line, though, with Taney’s later Dred Scott decision in 1857.)

Arguably, the implied existence of a federal commercial common law — at least when transactions cross state boundaries — is in line with the Constitution’s grant of federal power over interstate commerce (the “Commerce Clause“) in a way that is not true of criminal matters (which are not mentioned in the Constitution as generally falling within the purview of the federal government).  But the Court in Erie finally overruled Swift in 1938, and directly challenged this argument, holding that “no clause in the Constitution purports to confer such a power  [to create substantive rules of common law] upon the federal courts.” Erie, 304 U.S. at 78. Federal common law was thus dead — except in admiralty and international contexts (more on these another time).

Conclusion

Although we — i.e., most Americans at lease — generally consider the idea of nulla poena sine lege (“no penalty without a law”) to be a core component of modern democracy, the legal history of the United States, at least, suggests that this principle is more complicated than it first appears. Before the nineteenth century, American law — like English common law — was often unwritten (or at least, uncodified), and was based on concepts of universal (or Biblical, in the case of the Puritans) laws. Federal law in the nineteenth century, beginning with Hudson, moved away from this older common-law tradition (#2, in my intro above) to our modern, precedent-based version of judicially interpreted statutory law that we now call “common law.”

Still, it remains, in the words of Justice Marshall, ”the province and duty of the Judicial Department to say what the law is.”Marbury v. Madison, 5 US 137 (1803).

Before the Civil War, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via Article VI, Clause 2), but other areas defaulted to the states (made explicit by the 10th Amendment).

Southern planters generally favored state government power, as they were afraid that the foundation of their raw-material economy would be undermined if the federal government — especially a federal government led by Northern manufacturing interests — gained the power to abolish slavery in the South. Their interests were directly represented in the Constitution itself in several places: Article 1, Section 9 forbid banning the slave trade until at least 1808, the “Enumeration Clause” counted slaves as 3/5ths of a person for the purposes of the census (though they could not vote, of course), and the “Fugitive Slave Clause” required escaped slaves to be returned ”on Claim of the Party.”

Despite these protections, Southern slaveholders grew increasingly nervous that their economic system — which they increasingly argued was not just a “necessary evil,” but rather constituted a “positive good” — would either be directly challenged by the North, or would die out if it could not expand westward.

In the face of growing Northern power, arguments for state’s rights grew in the South — after all, if state government was at least equal to the federal government in power, then it would be difficult for the federal government (even if eventually dominated by the North) to restrict or eliminate slavery.

But despite these growing states’ rights arguments — including Georgia and President Andrew Jackson’s refusal to follow the Supreme Court ruling that federal treaties trumped state action in the Cherokee cases — Southerns appeared to embrace a different view of the balance between federal and state power in 1850.

Before 1850, Northern states had become increasingly reluctant to return runaway slaves to the South, denying planters their property without recompense. Laws to add more legal protections before alleged escapees would be returned meant that the burden on Southerns seeking the return of their property grew. One reaction was vigilante-style kidnapping of blacks in the North, some of whom turned out to be free blacks, not escaped slaves. Northern laws punished kidnappers, and Southerners were unhappy.

The Fugitive Slave Act of 1850 was designed to allay the anger of the South. It created a new federal agency and new federal commissioners who acted much as had U.S. Marshalls previously. These new commissioners could deputize and track escaped slaves, and were paid by the federal government and also for each slave returned. Soon, this new agency became the largest federal employer, exceeding the number of postal employees soon after it was passed.

The Fugitive Slave Act was anything but pro-state’s rights. To assist commissioners in apprehending slaves, troops were even sent into Boston to quell dissent and escort a captured slave from the city. Northern state laws on due process were ignored, and alleged escapees received no jury trial, no were they able to testify on their own behalf — despite Northern laws. In other words, the South embraced the law and the exercise of federal power.

But this new balance only postponed the battle between North and South for eleven more years. Western states were increasingly adopting anti-slavery positions (although they also sometimes banned African-Americans from moving there), and the South felt increasing pressure. Even the 1857 Dred Scott decision by the Supreme Court, led by the Southern Chief Justice Roger B. Taney, and intended to settle the slave question “once and for all” only delayed the Civil War by another few years.

By 1861, with the election of Abraham Lincoln on a platform that opposed the expansion of slavery westward (though not the abolition of slavery in the South — that came later, during the war), the South had decided that secession was the only option to protect their economic and political system.

Given this focus on press invasions, it is unsurprising that many scholars have seen their proposed new tort as interfering with the First Amendment guarantees of press freedoms. (See, e.g., Lorelai Van Wey’s Note, “Private Facts Tort: The End is Here.”) Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy” (636).

In 1890, when Warren and Brandeis’ published their article, the First Amendment of the Bill of Rights had yet to be applied to the states, although many states had their own versions. Despite this, in many ways “freedom of speech and the press” was viewed in stronger terms then than now (despite the fact that the Alien and Sedition Acts of 1798 was never challenged by the Supreme Court). There was, for example, no perceived difference between commercial and political speech — both were granted the same level of protection. The nineteenth century juries Thomas Cooley’s position on the issue was generally considered the most persuasive:

The constitutional liberty of speech and ofthe press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. (Bratman 637)

Warren and Brandeis were not unaware of this potential conflict, and carved out an exception to their proposed tort by adding a

“public interest” or “public character” exception to their tort, which recognized that the press or commercial photographers had to be free to record and report the actions of public characters and officials (Bratman 636)

In other words, even Warren and Brandeis, despite their argument that they were not inventing anything new at all, recognized that the right to privacy they were articulating had the potential to conflict with the guarantees of the First Amendment.