Fast Facts: The Evolution of America’s Laws

TwitterFacebookGoogle+Share

Featured Image: ”Contemplation of Justice,” sculpture at the U.S. Supreme Court Building.

  • The colonies kept much of the common law established over England’s long history. American judges continue to use it as precedent.
  • Long before the American union, there was little separation of powers. At the top of each colonial government was a high court, which often had executive and lawmaking powers as well.
  • Land was a very valuable commodity in England and English landowners have been the elites of their society since feudal times. Rights were given based on land ownership. But in America, land was wide open and free for those who settled there. (It was very costly, however, for Native Americans.) Political rights were much more widespread as a result.
  • In medieval times, a jury was a panel of neighbors who may have known the person or facts in a case. But they’ve since evolved to become strangers with the duty of finding the facts, given the evidence provided to them.
  • Circuit courts are named after the “circuits” that judges and lawyers would ride on horseback. Young Abraham Lincoln rode the Illinois circuit from courthouse to courthouse as an up-and-coming lawyer.
"Writing the Declaration of Independence, 1776" by Jean Leon Gerome Ferris. From the right: Thomas Jefferson, John Adams and Benjamin Franklin.

“Writing the Declaration of Independence, 1776” by Jean Leon Gerome Ferris. From the right: Thomas Jefferson, John Adams and Benjamin Franklin.

  • The federal system made states into legal laboratories. They were relatively free to try their own legal experiments with society and the best results were often incorporated into the national law. This was true even at the founding: The Bill of Rights included provisions already active in different states.
  • In the early 19th century, the government was missing the large tax base and civil service it has now. Its ability to influence society was limited because funding primarily came from the property tax. An income tax was instituted by the 16th Amendment in 1913. Sales taxes came in the 1930s.
  • Criminal punishment was often a tool of the elite in history, according to legal scholar Lawrence Friedman. But because the “rulers and the ruled” overlapped much more in America than England, criminal punishments and sentences were dramatically moderated. Grisly capital punishment was reduced and even outlawed in states like Michigan, in 1846.
  • In the 20th century, more laws and services came under the jurisdiction of the federal government, relative to the states. Executive agencies were established to manage the enforcement of all the law that had been created. The federal budget grew from $567 million in 1900 to $2 trillion in 2000, (nominal dollars). The number of federal employees went from 200,000 to almost 3 million. Most law today remains state law, however, with most lawsuits, crimes, schools, and welfare services governed by that level.
  • Another consequence of that growth was the growth of the president’s power relative to the other branches.
  • Lawyers have had a mixed social reputation throughout U.S. history, ranging from fascination to contempt, to esteem. Twenty-five of the 43 presidents have been lawyers, including founders John Adams, Thomas Jefferson and James Madison.
An image of Iustitia, the Roman goddess of justice.

An image of Iustitia, the Roman goddess of justice.

  • The middle of the 20th century saw a “liability explosion.” The dramatic increase in personal injury lawsuits was made possible after the reforms of the Gilded Age. The laws of that age gave the benefit of the doubt to large companies, like the frequently injurious railroads and factories, but it shifted to the individual after. Because of the rising middle class, many more could also afford insurance, like life and accident insurance.
  • Laws requiring professional licenses grew from the late 19th century. Some licensing duties were passed to the industries themselves – the Bar says who gets to be a lawyer. But other industries like medicine and architecture are mainly the domain of the state. The effect: Standards of these industries are kept very high but it keeps prices artificially high as well, prohibiting lower-quality yet cheaper providers.
  • The criminal justice system today heavily uses plea-bargaining. Ninety-five percent of criminal cases never go to a trial by one’s peers, because the expense and risk compels many to plead guilty to lesser charges.
  • Today, a bill’s language undergoes its own sort of evolution by the time it gets into law. Interest groups, electorates, agencies and businesses all tug back and forth, offer their counsel and, many times, lawsuits – all of which affect the final form. Vague language can be used as a compromise between sides, but also gives regulatory agencies the flexibility they wish to have on the ground. This is based on the theory that they’re more responsive than lawmakers, because agencies work with the actual people and industries that are the targets of law.

Source of information not linked: “A History of American Law,” by Lawrence Friedman.