Research Paper: Count = 3996) Most Important Characteristics

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¶ … Count = 3996)

Most Important Characteristics of the U.S. Legal System

The origins of common law have been administered in English courts since the Middle Ages. Common law is based in custom and general principles and is embodied in case law. Common law constitutionalism is the theory that legal principles such as equality and fairness rest within common law, are "constitutive of legality, and inform or should inform statutory interpretation on judicial review" (Allan, 2001). Because the principles of common law are gradually settled through the assemblage of judicial precedents, common law is presumed to encompass the deepest values of the community and thereby, judges are therefore entitled to rely on these principles when they perform their rule of law duty and read down statutes to keep the administration in check (511). Common law serves as the precedent or can be applied to situations not covered by statutory law. Under the common law system, when courts make decisions and report those decisions regarding a particular case, the case then becomes part of the body of law and can be used at a later time with cases involving similar matters. Common law is usually understood as a theory about the rule of law and the role of judges as the "rule of law guardians" (Decent, 511).

Moreover, common law does not impact the federal system in that the federal government functions on the basis of a written constitution "through which the people delegate power to the government" (Hogue, 1986). However, federal judges have the ability to apply common law to cases involving people from different states when there is no federal law to address a particular situation or case. An example of common law heritage is how the U.S. Supreme Court's use of precedents in determining cases. The Supreme Court sets precedents that apply to future cases in the exercise of judicial review of particular case. Additionally, if a statute in one state is determined to be unconstitutional, the Supreme Court's decision is applicable to similar statutes in all the other states (Tribe, 1978).

The United States Constitution, officially adopted September 17, 1787, in Philadelphia Pennsylvania defines and establishes a contextual framework for the country's law and order. It addresses the need for the integration of the states within a unified legal paradigm. The constitution is considered the "supreme law enforcer" of the United States (Borade, 2010). The Constitution provides the foundation of legal authority and serves as a guideline to the U.S. government. The constitution creates the three branches of government, explains their functions, and establishes a system of check and balances in order to prevent any one branch from becoming too powerful. The Constitutions further limits the power of the federal government in order to protect the rights of the states and the people. Further, there are provisions within the document that allow for changes to keep the constitution a living document.

The primary purpose of the Constitution is to offer a sense of direction to the organization of the three branches of government, their individual and combined powers; while reserving the rights of each individual state. The Constitution articulates the importance of civil liberties, jury trials, as well as the accountability of the government (Borade, 2010).

The U.S. Constitution establishes government based on the sharing of power between the national and state governments. The power sharing form of government serves to provide each state with its own constitution; however, all provision of state constitutions must comply and be in accordance with the U.S. constitution.

There are certain powers that are exclusive to the federal government inclusive of printing money, declaring war, establish a navy and army, entering into treaties with foreign countries, regulating commerce between states as well as international trade, establishing post office and issuing postage, and making the laws needed to enforce the constitution. As well, the states have exclusive powers to include establishing local governments, issuing various licenses, regulating intrastate commerce, conducting elections, ratifying amendments to the U.S. constitution, providing for public health and safety, exercising powers neither delegated to the national government or prohibited from the states by the U.S. constitution. Shared or concurrent powers between state and national government include taking private property with just compensation, spending money for the betterment of the general welfare, chartering banks and corporations, making and enforcing laws, borrowing money, building highways, creating and collecting taxes, and setting up courts.

However, there has been great criticism as to whether the separation of power equates to a balance of power. Federalism and the separation of powers both imply constitutional limits on state power through territorial or functional division of governmental roles and offices (Rokkan, 1999). "The separation of powers makes it nearly impossible for one faction to speak unequivocally or univocally on behalf of We The People" (Ackerman, 1993).

Although commentators and others have argued that the aforementioned characteristics of the legal system are the most important ideally, because of the impact on society as a whole, the impact of judicial policies via the Supreme Court is the most important characteristic of the legal system. There have been some very specific policies that have systematically changed the face of America and the legal system with regards to racial equality, abortion, and the criminal justice system.

One of the most impactful decisions that many point to was the Supreme Court's decision in Brown vs. The Board of Education as the driving force behind racial equality in the United States; although the executive branch and Congress were involved in ensuring implementation of the desegregation policy. But the courts were the ones who initiated a pursuit of national policy of racial equality. Some considered the courts initial decisions to be vague which led to easy evasion of the new policy. Many lower courts and the Supreme Court justices were persistent though, and kept the policy on the national agenda. There fortitude paid off with the passage of the Civil Rights Act in 1964; some 10 years following the Brown decision. The highly visible Brown decision paved the way for not only integration in the schools but desegregation in other facets of American life.

The 1973 Supreme Court decision in Roe vs. Wade ruled that a woman has an absolute right to an abortion during the first trimester of pregnancy;

that a state may regulate the abortion procedure during the second trimester in order to protect the mother's health' and that during the third trimester, the state may regulate or even prohibit abortions, except where the life or health of the mother is endangered (Allan, 2001).

There was a great deal of negative although immediate reaction to this decision, from all facets of society. Even the hospitals did not wholly support the decision due to the controversial nature. Even today, Roe v Wade continues to be a hotly debated issue, and is often played out between the two major political parties and delineated along those same lines; with Democrats generally expressing support for the decision, and Republicans typically expressing opposition. Although several attempts have been made, there has been no constitutional amendment passed to overturn Roe vs. Wade.

Another very important Supreme Court decision has been in relation to criminal due process including Miranda vs. Arizona, Gideon vs. Wainwright, and Mapp vs. Ohio. Miranda vs. Arizona ruled that police officers must advise suspects taken into custody of their constitutional rights, including the right to have an attorney present during questioning. The requirements of Miranda are exceptionally clear and to this day, many police department officers quote the ruling verbatim. However, there has been some criticism as there is no way of ensuring the ruling is explained to suspects to ensure they understand, and not just read to them. The Gideon vs. Wainwright decision provided that indigent defendants had to be provided legal counsel for trials in felony cases in the state courts. The impact of Gideon vs. Wainwright was much more widely accepted than the Mapp ruling; as some states had already been providing attorneys prior to the ruling taking effect. In addition, the policy guidelines in Gideon were more sharply defined then the Mapp decision. The Mapp rule required state courts to exclude evidence from trial illegally seized by the police, and extended the exclusionary rule from the national government to the states. The Supreme Court decision was not unanimous in the beginning, and there have been several subsequent Supreme Court decisions that have broadened the scope of legal searches, limiting the applicability of the Mapp ruling.

Question 2: Advantages and Disadvantages of the American Jury System

Most American's consider the trial by jury system to be a foundational component of the justice citizen. The jury system is designed to ensure each citizen's absolute right and the guarantee of an impartial and fair judgment, ideally. The American jury system is rooted in Medieval England, when as early as the 1100's, groups of 12 knights were assembled to resolve disputes over taxation and land titles (Landsman & Hastings, 1992). The group… [END OF PREVIEW]

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