"The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past."
                                            -- Oliver Wendell Holmes, Jr.
                                               The Common Law (1881)

Americans have gathered to make law since our colonial period and continue to make law to maintain a well-regulated society. Although specific procedures for creating law have developed over the centuries, democratic law-making remains marked by a need to have the consent of the people, a system of checks and balances, and a public policy flexibility suited to the problems of time and place.

In the 17th and 18th centuries, Americans sent delegates to colonial assemblies to make needful rules for the regulation of daily economic and social relations. Where a road should course or what constituted a public nuisance could be debated and decided. Roads facilitated commerce, and the disposal of agricultural waste was more than a matter of aesthetics; both issues touched upon the health of a well-regulated community.

In the 19th century, Americans gathered in Missouri to make rules for the governance of wagon trains. These "rules of the road" were intended to safeguard their survival on the trek of thousands of miles to the Pacific Coast. Gold rush miners when they arrived in the California gold fields departed their wagon trains and gathered again to write local mining district rules. These miners wanted a well-regulated society protecting their enterprise and enabling its prosperity.

In 21st-century California, neighbors still gather to make rule changes, within a recorded declaration of covenants, conditions, and restrictions, on what property alterations are permissible for those living within a housing tract. These property owners have the authority to make needful rules for a well-regulated society. Whether in township halls, capitol buildings, frontier settlements, or up-scale living rooms in urban America, property owners, citizens, and claimants of the American dream have gathered to make law for the regulation of social and economic relations. That heritage resonates in our local, state, and national law-making institutions.

Origins of U.S. legal traditions

This everyday law-making process is part of an historical process that is English in origin. When English colonists in colonial America put into practice the law-making heritage that they brought with them, they made certain alterations to suit their new environment. The King of England granted charters to individual proprietors and joint stock companies of entrepreneurs for the various colonies affording varying degrees of law-making authority, but all English colonists had law without current charters and colonial statutes. They had their ancient constitution, the largely unwritten law of England known as the "English common law," which prevented government from abusing the rights of Englishmen. Included in this common law was Magna Charta -- the charter signed by King John in 1215, which guaranteed due process of law, the protection of property rights, and access to a jury. The critical center of the ancient English law was the relationship between private property and liberty. Private property in landholdings had received favored legal protection and definition since the 14th century, but English history and the American colonial experience created a clear sense in American minds that only with the consent of a sovereign people could rights in property and the exercise of personal liberty be altered.

The idea that governments derived legitimacy from the consent of the governed had ancient origins in Greek and Roman history, and early modern European political theorists had added substantially to the concept of sovereignty as residing in the people. American colonists of the Revolutionary War era advanced this concept by increasing the rights specifically reserved to the people and further limiting government's reach. These reserved rights would find their way into state and national bills of rights that were written down. Grappling with how to prevent governments from trampling on rights by exceeding the power delegated to them by the sovereign people, U.S. constitutional convention delegates, state and national, created systems of internal checks and balances within a separation of law-making powers. Each branch of government would have independence in the law-making scheme, but these powers would overlap, thus constraining institutional reach within a system providing for broad popular participation.

Extending the reach of law

The extent of broad popular participation in government has varied with America's history. At the nation's founding, only white and male property owners constituted the participating element at the polls and in law-making offices. In the 19th century, the property-holding requirements for suffrage and office-holding broke down. But for many years, the law-making excluded women, African slaves, American Indians, and Asians. The campaign for equality grew during the 19th century and triumphed in the 20th century. Women organized on the local level to pressure legislators for rights. They joined anti-slavery societies, declared for equality at Seneca Falls in 1848, and moved west where they found far more fertile political soil for rights. In the Wyoming and Utah Territories women won the right to vote in 1869 and 1870. Women gained community property rights via Spanish-Mexican legal practice in California in 1849, but not the vote until 1911. Women would have to inspire an amendment to the U.S. Constitution in 1920 to gain a national right to cast their votes.

African-Americans won citizenship under the 14th Amendment of the Constitution in 1868 and African-American males the right to vote under the 15th Amendment in 1870, but American Indians would not have citizenship or the vote until 1924, while Asian immigrants would not win access to citizenship until World War II. The children of Asians and other immigrant groups born in the United States were citizens by virtue of birth in the United States, but their parents did not have access to naturalization. For Chinese immigrants excluded from citizenship by statute since 1870, Congress extended naturalization rights in 1943 as part of the war effort against Japan. For Japanese immigrants, the McCarran-Walter Act of 1952 provided such access. Yet regardless of whether they had the right to vote, Americans have petitioned their law-making bodies seeking change. Women and African-Americans, even before they had the vote, actively participated in the public, political process of petition, protest, and advocacy. The fact that law-making institutions were open to such democratic participation enabled the public policy formation process to be inclusive, albeit at a pace unsatisfactory to many of the participants at the time.

Universal suffrage

One reason for this hesitancy to make suffrage universal was the prevailing political philosophy of the 18th century. The English model, like those prevailing in other countries at the time, generally had a male king, Parliament, and judges buoyed by theories of mixed government and rights derivative from land mostly owned by men. Yet much political theory and rhetoric in its discussion of rights and liberties seemed to imply that these values were universal. The rights of Englishmen, then, as interpreted by Americans in America, formed the constitutional basis for a revolution in 1776 to save the ancient constitution of England from tyranny and preserve its promise for Americans. How that goal would be worked out in practice was the job of delegates assembled in state and federal constitutional conventions.

In state constitutional conventions of the late 18th century, delegates wrote documents that in a variety of ways fleshed out and expanded the rights of American colonists. Maryland did relax the property qualification in the election of delegates to its constitutional convention. Georgia created a petition mechanism that led to new constitutions in 1789, 1794, and 1797. The 1797 version contained an amendment process rather than a convention vehicle for change.

Massachusetts started a process in motion in 1776 that resulted in increased authority in the people to make constitutional change. The Massachusetts legislature (called the General Court) asked the state's towns to authorize it to write a constitution in its next session. Towns, rather than a majority of voters, controlled the fate of that proposal, and Boston and eight other towns rejected the authority of the legislature to write fundamental law for the state. In the ensuing years, the towns authorized the General Court to act with the authority of the towns to ratify a constitution. Eventually, however, the towns, their citizens voting without normal property restrictions, rejected this document. In 1779 the General Court conceded the authority of the people voting in their towns to elect delegates to a convention. The Massachusetts Constitution of 1780, based on such a convention, eventually won ratification and its history established several principles. First, conventions of elected delegates were required for the writing of constitutions. Second, the people must be guaranteed access to the process through elections and the amendment process. Finally, the people must have the final authority in the ballot box to ratify the constitution.

Liberty and property

The Massachusetts Constitution was part of the context for the delegates who assembled in 1787 in Philadelphia to write a federal constitution. Another key part of the context was the developing relationship between liberty and property in the law-making equation. The 17th-century English philosopher John Locke's political philosophy had great influence in American thinking on this relationship. Locke had argued that people agreed to live in a commonwealth so that government would enforce natural law and rights. The rights of man in nature included possessing liberty and property. Americans took this idea so closely to heart that their political and constitutional rhetoric used property law concepts when referring to personal liberty: Americans could own liberty. Locke too thought life and liberty dependent upon property, but individual use of property must not include waste or the exclusion of other people from nature and its bounties. Thus, one question for the delegates of the 1787 constitutional convention was how best to protect both the fruits of liberty expressed in holding private property and the access of the people to the bounties of the land.

In the U.S. Constitution, these delegates created a republican form of government balancing interests and containing the elements of mixed government. The concept of mixed government fuses historical elements of monarchy, aristocracy, and popular government. Each of these three forms of government had the tendency to favor itself; if left unchecked constitutionally, each would result in an extreme form of tyranny, oligarchy, and democracy. Each of these tendencies toward power could also threaten the liberty of the people in their private property, yet each interest needed representation to maintain a well-regulated society. The solution put to practice by the constitutional convention delegates provided for a separation of the powers among the branches of government, yet an overlapping of the institutional functions. Importantly, this overlapping created a kind of institutional parity, with each branch retaining enough power to balance the other branches.

Law-making at the national level

In its 18th-century form, the national legislative body was made up of two branches, the House of Representatives and the Senate. Voters within districts within states elected members of the House in direct popular elections. Initially, state legislatures elected U.S. senators. The wish to balance the interests of less affluent people against the interests of the propertied classes caused federal constitutional convention delegates to opt for election of senators by state legislatures at that time, in order to assure the representation of propertied interests in the U.S. Senate. It was not until 1913 that the 17th Amendment to the U.S. Constitution put the election of U.S. senators directly in the hands of the people.

Under the Constitution, the House and Senate constituted a congress that had the authority to create and approve statutes. The president of the United States had authority to execute those statutes. While it is not spelled out in the Constitution, the president may also initiate law-making by having members of his party introduce bills in Congress. The federal judiciary had authority to interpret those statutes, and the U.S. Supreme Court soon claimed the implied power to declare such statutes -- laws -- unconstitutional. The president could veto a statute, but the Congress could override that veto. Laws declared unconstitutional could be changed to deal with the objections of the courts, but Congress also could initiate a constitutional amendment if it wanted to overturn a decision of the U.S. Supreme Court. The overlapping system tends to be both conservative of individual rights and protective of private property.

Law-making at the state level

As the U.S. law-making system has developed at the state level, each state has a similar structure of government, yet different traditions of making law. State legislatures in some states meet annually and spend most of the year in law-making. Other states have legislative sessions that meet biennially for very short terms. The authority of these legislatures to make law in the form of statutes is similar to the authority of Congress to make needful laws for the country as a whole. Some states have state constitutional provisions for the direct popular amendment of the state constitution or the creation of law by way of initiative and referendum, processes that allow ordinary citizens to propose laws and regulations and put them up for popular vote on state ballots.

Law-making: separation of powers

Whether legislation or constitutional amendment is by means of direct popular action or legislative process, these actions are subject to judicial review. In both state and federal traditions, courts have the authority to review legislation to determine whether it is in accord with the constitution. Yet, following the concept of checks and balances, courts are not entirely independent of the rest of the political system. State court judges are often elected periodically. Federal judges are appointed for life, yet both state and federal judges are subject to impeachment for misconduct by the legislative branch of government. Under certain circumstances, state governors have the authority to appoint judges. Today it is a commonplace that American courts make law in a sense -- through deciding cases. The critical difference between legislative law-making and judicial lawmaking is that courts can only decide cases that are brought before them by litigants. Legislatures have far more breadth, yet they too are constrained by the constitution as well as English common law tradition. Courts, in deciding cases, consider the clear wording of constitutions, prior case law, common-law traditions, and public policy.

In sum, the American system of law-making rests on a foundation of overlapping authority. States and state constitutions exist within a federal system governed by a congress, president, and federal court system constrained by the U. S. Constitution.

For example, the commerce clause of the federal Constitution gives the U.S. Congress the power "to regulate Commerce with foreign Nations, and among the several States." The U.S. Supreme Court has interpreted this wording to constrain the states from regulating interstate commerce and intrastate commerce in ways that hamper interstate commerce. In 1964, this interpretation of the commerce clause extended congressional authority to regulate public accommodations under the Civil Rights Act of 1964, which prevented discrimination in renting hotel rooms.

How this overlap and interplay between state and federal interests works out in practice depends upon myriad circumstances. The following example will illustrate this. Congress, for example, has no explicit power to tell the states how to set speed limits on their roads. This decision resides in the hands of state lawmakers, county boards, and city councils, depending upon the allocation of authority under state constitutions and statutes. In the 20th century, some states had highway speed limits set at 65 miles per hour for automobiles, and 55 miles per hour for semi-trailer trucks. Other states thought 75 miles per hour on multi-lane freeways made more sense. Sparsely populated states with vast distances between cities set speed limits at "reasonable" under the circumstances. Driving in Montana at 70 miles per hour or 120 miles per hour depended upon the road and driving conditions. It was not very different from driving on Germany's autobahn. Yet when America faced an energy crisis in the 1970s and many in Congress believed that conservation required a national speed limit of 55 miles per hour, Congress used the power of the purse to persuade state legislators to change state law. Simply put, Congress told the states that if they did not change their speed laws to comply with the 55 miles per hour limit, federal highway dollars in the millions would not be forthcoming. Americans were soon driving 55 miles per hour across the nation. State legislators had a choice and they followed the federal dollars.

Fence law and federalism

The cattle on Montana roads today is another example of the diversity of law-making that has developed within the federal system. The issue of whether cattle should run at large without restraint is as old as America. Colonial legislators had to decide whether cattle owners should fence their beasts to protect farmers' crops and gardens. To fence would impose an expense upon cattle owners; to allow cattle to run free would create a crop-damage expense upon farmers. Yet farmers had common-law remedies against the cattle owners if the farmer could catch the cow in the act, restrain the beast, determine its owner, and haul him or her into a trial court.

Lawmakers soon chose to create statutes requiring livestock owners to build fences, and these statutes contained the definition of a legal fence. This tradition continued across America until settlement reached the Great Plains, the relatively dry region west of the 100th meridian, in the 19th century. In the wooded eastern states, livestock owners built fences, township fence viewers determined whether they complied with law, and aggrieved farmers still hauled livestock owners into court. Yet livestock owners with legal fences now had a defense against their liability for damaged crops. On the Great Plains, the range cattle industry of the 19th century and its interests sought cost containment in the legislative declaration of open range law and managed to revise the principle of fencing requirements. Under these laws, the owners of crops and gardens had the expense of fencing imposed upon them by statute if they wanted to collect for cattle damages. With the demise of the range cattle industry in the 1880s, the reason for open range law declined over the decades, yet in the 20th century some states, like Montana, retained the law.

Today drivers on interstate highways in states like Montana see them fenced at taxpayer expense, but not because of western open range statutes. Rather, the safety of American motorists is at stake, and federal dollars seek to protect drivers and passengers from harm. On state highways in open range states, fences are few and signs warn motorists that livestock might be on the road. As the complex patchwork of fencing law and highway law makes clear, local, state, and federal law-making bodies in the U.S. system have different authority and roles in maintaining a well-regulated society.

Administrative agencies

In the United States, there is an additional law-making institution with legislative, executive, and judicial functions. That is the administrative agency, a creation of the 19th century. The pioneer was the New York Metropolitan Board of Health of 1866, but the railway commissions of the 1870s and 1880s pushed the concept of administrative agencies -- usually appointed boards of experts who made public policy independent of legislatures -- into public view and judicial scrutiny.

After decades of judicial concern regarding the undue delegation of legislative authority to administrative agencies, these institutions gained substantial administrative and constitutional authority in the early 20th century. The focus of regulation was public welfare, whether in defining public hygiene, a reasonable railroad rate, or the "bag limit" -- legal take -- for white-tailed deer. The concept that legislators applied was that experts with authority to regulate were best equipped to make needful rules for the operation of some complex economic and social systems. Railroad, electrical utility, natural gas, or freight rates were matters of complex economic calculation. To set those rates, experts gathered to hear the business side of the rate question and the consumer view of the issues. These commissioners hired staff experts who analyzed the evidence presented. With all of the evidence in hand, the commission issued rules for the business in the public interest. These rules were subject to judicial review, and a body of law called administrative law evolved.

Administrative law consists of constitutional, statutory, agency, and common law. Administrative agencies are creatures of statute, constitutional provision, or executive orders based on statute. The bulk of administrative law is judge-made case law on rulings and regulations by various administrative agencies. Historically, until the early 1930s, courts focused upon constitutional issues inherent in establishing administrative agencies, such as whether a legislature had the authority to delegate power to an agency. Since the 1930s, courts have scrutinized the procedural issues surrounding the rule-making function and the discretion of agency officials. Agencies have had to keep records regarding the evidence received in the rule-making process and how they considered that evidence in arriving at a decision. Whether an agency was setting telephone rates or writing environmental rules, the judiciary stood as an arbiter of whether the rules of procedure had been complied with in the process of making the rule. Today the Interstate Commerce Commission and the Environmental Protection Agency make many of the rules necessary for the conduct of business on a national scale.

When an administrative agency makes a rule that in effect has the power of law, it maintains the access of the people to the lawmakers. Rule-making procedure requires public notice of the beginning of the process, public hearings on the questions at issue, public opportunity to comment on proposed rules, and public notice of rules. A governor or the president of the United States usually appoints the administrator of the administrative agency, subject to legislative confirmation. The people have access to this confirmation process, and in the case of the federal government, the confirmation process is frequently televised and the subject matter of media attention. Public interest organizations frequently testify at the public hearings and publicize their positions via the media. The significance of these appointments is clear -- as well as the overlap of the executive and legislative branches.

Democratic decision-making

The American people have a history of abiding by the law of the land. In part, this voluntary compliance results from a tradition of offering citizens opportunities to be involved in the lawmaking process at many points. Despite the diversity of population and culture in the United States, the political system of democratic elections, representative law-making bodies, and public access to the process have given the American people a stake in the law as well as confidence in the stability of personal and property rights. How personal and property rights have been defined and protected over the centuries has varied, but today, neighbors gathered in an urban condominium complex or living room, or in a township hall in rural America, continue to make law, knowing that maintaining a well-regulated society requires personal attention in democratic decision-making.

Although the American experience may not be applicable everywhere, the basic principles of ensuring democratically created law are these: the consent of the governed; the involvement of the people at all levels of lawmaking; open access to the process of making law whether through voting, petitioning, or filing lawsuits, or through judicial review of statutes, administrative rules and regulations, and executive office actions; and reliance on fundamental principles of government. These fundamentals include checks and balances within the institutions of government, the republican form of government, and democratic elections. The federal and state governments operating under constitutions have overlapping powers based in the tradition that government is of, by and for the people.

For Additional Reading

Gordon Morris Bakken, Law in the Western United States (University of Oklahoma Press, 2000)

Douglas W. Kmiec, and Stephen B. Presser, The History, Philosophy and Structure of the American Constitution (Anderson Publishing Co., 1998)

William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (University of North Carolina Press, 1996)

John Phillip Reid, Constitutional History of the American Revolution (4 vols., University of Wisconsin Press, 1986, 1987, 1991, 1993)

Melvin I. Urofsky, and Paul Finkelman, A March of Liberty: A Constitutional History of the United States (2 vols., Oxford University Press, 2001)