How to Build a Firm Law

By C. J. Oakes

The United States has built 47,563 law firms as of the year 2000 (Carson, 2004).  Each firm has one very important feature in common:  Each has offices in some kind of building.

In the consideration of how and why the nation creates laws, the construction process provides a useful analogy.  In any new construction project, plans are drafted, funds acquired, and the building site prepared.  In the construction of the United States for instance, The Declaration of Independence provided a plan for the future nation.  Written in that document are grievances against England and these present a blueprint for future governance.  The French assisted with funding and following the victory preparation for the building site began.  The preparations included, which aspects of the previous structure were salvageable and which were not.  Among the useful remains for preparing the new foundation was the concept of Common Law.

Common Law is non-codified law that is it has not been written and compiled centrally for easy access.  Judges create Common Law through rulings and accordingly establish precedent.  A judge presiding over some future similar case could rule based on the same precedent, thereby establishing orderliness to the legal system as well as society.  During the early years of the new republic, this was the only form of law for most states as codification of laws did not become the norm until the 1800s (Meyer & Grant, 2003).


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Laying a Good Foundation for Law

In laying the foundation, the Constitution, the new nation did provide the means for creating codified law.  As if smoothing the surface in anticipation of building, the document spelled out the underlying principle upon which to build all codified law.  The purpose of any new law is to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” (United States Constitution).

In Article One, the document requires that codified law is to be written by an elected Congress.  As if placing pipes, conduit, and stud fixtures in place, the document then prepares all other aspects of the national house such as the Executive (President) office, the means of testing the validity of laws (Supreme Court), and the means of adding to the existing house.  This final point is important, for, if one is to build an addition onto an existing structure it is necessary to ensure that either the current foundation is sufficient for the add-on or one pours an additional foundation.  Article V of the Constitution provides for pouring a new foundation if needed.

Creating the Framework for Law

Constitution of the United States of America
Constitution of the United States of America (Photo credit: The U.S. National Archives)

This contract with America did not just happen as some today imagine.  The writers of that document were very familiar with legal concepts and the ability of powers within a government to corrupt justice.  The early colonies had established courts carried over from English rule (Meyer & Grant, 2003).  Many of the ideals conceptualized in the Constitution and Bill of Rights were written so as to avoid many of the shortcomings of the English system of law.  For example, the English had the habit of transferring cases offshore to the Vice Admiralty so as to avoid the possibility of jury nullification.  Thus the right to trial in the jurisdiction of the offense was added to the Constitution (Schmalleger, 2009).

It is of interest to note that although the Constitution clearly stated what the government could do it did not state what could not be done.  Hence, the first 10 amendments were added a short time later collectively called the Bill of Rights.  Many of these stemmed from the Magna Charta of 1215 (Meyer & Grant, 2003).  Amendments are like the décor of a house.  One amendment stands out as revolutionary, uniquely beautifying the structure.

The Ninth Amendment simply states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (United States Constitution).  Historically the Ninth Amendment has been avoided by the Supreme Court as caustic but in recent years the ideal has been gaining momentum from all sides (Cavanaugh, 2010).  In fact, the last time the Court applied that amendment was in 1965.  The case dealt with the issue of birth control as the state of Connecticut had passed a law banning all forms.  In a concurring opinion, Justice Goldberg stated,

the concept of liberty…embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution, [my opinion] is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante at 381 U. S. 484. I add these words to emphasize the relevance of that Amendment to the Court’s holding” (Griswold versus Connecticut, 1965, p. 381).

Adding Beautification to Law

The problem with the Ninth Amendment is that it is vague.  However, the very vaguarity that dissuades the nation from application is exactly what the framers intended for it permits either a wide or a narrow interpretation of liberty (Farber, 2007; Barnett, 2006).  It is like having a complete structure in place in need of decor’. In fact, the 9th Amendment permits US to decorate as we see fit. In recent years, a resurgence of Ninth Amendment argument is taking place with conservatives taking the narrow view and liberals taking the wider (Adkinson, 2004).  This wide or narrow interpretation ability makes the Ninth Amendment a very useful tool to an ever-changing, ever-adapting nation like the United States.  Hence, the Ninth Amendment, vague as it is, is the most important amendment in the Constitution.

Used properly, the Ninth Amendment allows society to retain power regardless of anything the government does.  If the nation leans too far toward liberalism the Ninth Amendment allows the majority to force controls.  For example, all have a right to clean air so this amendment allows restrictions on smoking in public.  However, if the nation becomes too restrictive of liberty, the amendment can also force looser regulations.  For example, a smoker has the right to smoke in the home (Adkinson, 2004).

The national agenda could eliminate many of the hotly debated issues of today simply by applying the Ninth Amendment with common sense.  Such décor makes the national house a sight to behold so one must wonder why any would seek to hide its beauty.

If the United States were a law firm, persons passing by would look in awe and amazement, for they would surely find themselves looking on the finest structure the world has ever known.  Problems exist, to be sure, such as unsightly add-ons in the back of the house without proper foundations, but none-the-less, the building is a sight to behold.  The original builders of the nation knew how to build firm law.  The builders of today must continue the project with sense and dignity.

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References

  • Adkinson, D. M. (2004). The Ninth Amendment and the Negative Pregnant. The Forum, 2(3), .
  • Barnett, R. (2006, November). The Ninth Amendment: It Means What It Says. Texas Law Review, 85(1), 1-82.
  • Carson, C. (2004). The U.S. Legal Profession in 2000. Retrieved from http://www.americanbarfoundation.org/research/project/53
  • Cavanaugh, T. (2010, February). Ninth Configurations. Reason, 41(9), .
  • Farber, D. (2007). Retained by the People: The “Silent” Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have. : Perseus.
  • Justia.com U.S.SupremeCourtCenter. (2010). Griswold v. Connecticut. Retrieved from http://supreme.justia.com/us/381/479/case.html
  • Meyer, J., & Grant, D. (2003). The Courts in Our Criminal Justice System. Upper Saddle River, NJ: Prentis-Hall.
  • Schmalleger, PhD., F. (2009). Criminal Justice Today: An Introductory Text for the 21st Century (10th ed.). : Prentice-Hall.
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