Legal Reform, The Framers and First Principles

October 23, 2013

The validity of legal reform efforts is a hotly debated topic in legislatures and courts across the country.  All too often, this discussion overlooks the views of the Framers, which can helpfully inform policy views on both sides of the debate.

As explained in Legal Reform, The Framers and First Principles, the Framers’ views on the separation of powers would cause them to view state legislatures as the central actor in legal reform efforts and would make them highly skeptical of state judicial actions invalidating legislatively-enacted legal reforms.  At the same time, the Constitution generally, and the first ten amendments in particular, reflect a dedication to the rule of law that should inform the debate over legal reform.  Finally, the Framers’ innovative system of federalism counsels in favor of, not against, legal reform efforts at the state level.

Separation of powers.  Any discussion of the Constitution and the Framers’ views should begin with the structural provisions of the Constitution.  It is no accident that the Constitution was divided into articles, and the first three articles addressed the powers of the Congress, the President and the Judiciary respectively.  The separation of powers was the animating principle for the structure of the new federal government established by the Framers.  While the Framers’ views regarding the critical importance of the separation of powers and the interaction between the legislature and the judiciary do not directly govern the separation of powers applicable in state systems, much of the Framers’ wisdom about the separation of powers generally and the division of authority between the legislative and judicial branches in particular, applies with equal force to state governments.  For example, the Framers who granted Congress the power to establish courts, determine their jurisdiction, and enact rules necessary and proper for the exercise of that jurisdiction would clearly envision state legislatures as having the primary role in legal reform efforts.  By the same token, the members of the Framing generation who sat in the first Congress and enacted laws dictating the details of how federal juries would be selected would certainly be puzzled by state court interference with state legislative efforts at legal reform.

Rule of Law.  The Framers likely would have viewed legal reform efforts as well within the heartland of legislative powers.  The Framers likewise would have assumed that the legislative branches—both state and federal—would have substantial discretion to adopt rules for ensuring the fair conduct of litigation in the courts.  In extreme cases, some litigation excesses and some legislative responses could implicate constitutional limits.  But even where those constitutional limits are not actually violated, the principles they reflect can inform the policy debate over legal reform.  First and foremost, legal reform efforts should take account of due process principles, and legislatures should ensure their reforms are consistent with the letter and spirit of those principles.  Seventh Amendment values are also implicated by state legal reform efforts, and should be respected, but that Amendment still grants state legislatures considerable latitude in deciding which questions should go to the jury.  Moreover, other constitutional constraints against taking of property, bills of attainder, and denials of equal protection should influence the debate.

Federalism.  The Framers thought that the vertical division of authority between the federal and state governments, much like the horizontal separation of powers in the new federal government, was a critical aspect of the Constitution.  As Justice Kennedy wrote, “federalism was the unique contribution of the Framers to political science and political theory.” And, as with the separation of powers, the Framers viewed this structural aspect of the Constitution as essential to protecting individual rights and individual liberties.  This vertical division of authority does not mean that the federal government has no role in legal reform.  At the same time, absent the relatively rare instance in which Congress not only addresses a legal reform issue, but does so with preemptive effect, the states retain the full authority to address such issues for themselves.  In fact, the Framers would undoubtedly have viewed the states – and state legislatures in particular – as having principle responsibility for advancing legal reform.

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