Subsection 2.  United States Founding Characteristics and Legal Traditions

 

The above is only a brief introduction covering three hundred years before the founding of the United States to the War of Independence. The book here is designed to help readers understand American law, so the historical narrative is focused on principles and not on details. Just a few special characteristics are discussed here. 

 

First, when the thirteen American colonies became independent from Britain, a significantly large number of the colonial leaders had already attained a high level in culture, education, economic development, and wealth, with only a few colonists who were farmers and laborers. Harvard University, Princeton University and Yale University had been established for many years.  Numerous delegates who attended the Constitutional Convention were graduates of these universities, while the rest were well trained lawyers, landlords and officers. 

 

Second, from the beginning of the United States independence movement, lawyers played a crucial role in politics and legislative issues. The importance of lawyers in politics remained over two hundred years, becoming a tradition in American society with major contributions. On the other hand, if for two hundred years politics had been dominated by the military, all of American history would have to be rewritten. From the beginning, one of the best decisions the colonists made was for the United States Constitution to require the military to be comprised of civilians doing civil service as part of the department of defense, and for the President to be the Commander in Chief.  

 

Third, although the people in the thirteen colonies immigrated from various European countries, the main cultural, and especially political and legal traditions, were derived from Britain. In fact, before the declaration of independence in 1776, each colony had been well-established, with each having a governor and a Legislative Assembly and had adopted the British Common Law judicial system, including trial by jury. Although the United States became independent from Britain, its legal system and the concept of democracy were inherited from many fine aspects of British tradition (such as when the British Parliament could limit the power of the absolute monarchy).

 

Fourth, at the opposite end, the American independence movement was not only a result of the colonists' discontent with King George III, but also aroused by their dissatisfaction with the imperious British penal system. There will be a more detailed discussion in future references to the Bill of Rights.

 

Fifth, the American Constitution, for the most part, was influenced by the eighteenth century European Enlightenment movement. Books such as Rousseau's Social Contract, Montesquieu’s The Spirit of the Laws, were important influences on the United States Constitution. There are already many books on this subject  Here we shall merely point out that several important drafters of the American Constitution had high degrees of education, wisdom and ideals, but also had real world experiences. 

 

Madison's famous quote is a good summary of he spirit of the American Constitution, “Because of the defects of human nature, we need our Constitution; because of the goodness of human nature, it is possible for our Constitution to succeed”.

 

What Madison meant to say was: Because human nature has an evil side, it must be limited by legislation; however, since human nature has a good side, it is possible that a society governed by the rule of law can be accomplished.

 

Sixth, although the United States was a new country with only two hundred years of history, it was the grandfather of modern democratic revolutions and the pioneer for a society governed by the rule of law. The thirteen colonies declared their independence in 1776. France, which had been the leader of democratic revolution, needed another thirteen years (1789) to break out a revolution. 

 

The new American nation had a new Constitution with a new vision. It also inherited England’s Common Law tradition, so in terms of establishing a society governed by the rule of law, America had a head start.

 

Conversely, the outbreak of the French Revolution in 1789 initially merely created an opportunity for Napoleon. Napoleon had dictatorship ambitions, but ironically his greatest and most enduring accomplishment turned out to be the organization of previously accumulated eighteenth century laws, ordinances and even traditions and customs in France into a coherent code, the famous Napoleonic Code. Even today, the French are still using the system and codes established by Napoleon. Since a vast majority of European countries also use a similar system, it is also known as "Continental Law" (also called “Civil Law”)  as distinguished from the "Common Law" of Britain and the United States. The two systems of laws are rivals. We shall have a more detailed comparison in future chapters. What is worth noting is that, in the eighteenth century, there were only three million people in the recently established United States of America, but it was already the leader in democratic revolutions and the rule of law. 

 

The spirit of the rule of law in the United States was established from the founding of the nation. 

 

Section 3. The Rule of Law and the United States Constitution

 

Subsection 1. American Independence - A Conservative Revolution

 

Although the American Revolution was a democratic pioneering movement in history, when compared to the French Revolution of 1789, the Russian Revolution in 1917, and even the continuous last hundred years of the modern Chinese Revolution, it seemed so mild. Therefore, we can say that the American Revolution was a conservative revolution. 

 

The American Revolution, relatively speaking, had fewer number of casualties, bloody massacres, violence, and unrest. The major reason it was just a political revolution? Unlike the other revolutions, there were no intense social class struggles or the uprooting of tradition, or resistance to foreign invasion and humiliation. 

 

The main goal of the United States Revolution was for the colonists, led by their elites, to overthrow British rule. So it was a political revolution that shifted political power. After its independence, the United States continued its pre-independence social and cultural ways without class struggles, revenge, or vendettas. At the same time, the United States was blessed geographically with no foreign enemies lurking nearby and ready to strike. Compared to the revolutionary circumstances and the fates of France, Russia and China, America was completely different.

 

It is worth noting that in 1787, when the thirteen colonies met in Philadelphia for the constitutional convention, thirty out of the fifty-five delegates were lawyers. Imagine a modern revolution in another country. Those thirty “scholar”, or lawyer delegates would have already been replaced by military men. Soon after the difficult war for independence, the Americans could embark on the road to the rule of law, a constitution, equality, freedom, and democracy because social and cultural traditions in the pre-independence period were maintained and continued after independence. That can be regarded as a miracle of modern history.

 

Subsection 2  The Spirit of the Rule of Law

 

Today, those reading the meeting minutes of the United States Constitutional Convention in 1787 should be quite impressed that two hundred years ago the delegates were able to maintain polite exchanges with mutual respect as gentlemen during the fierce debates. This kind of civility is difficult to find today among the representatives of many governments. The contributions of the Constitutional Convention to future generations was not only to create a monumental constitution, but to demonstrate the delegates’ abilities to maintain a courteous atmosphere and to tolerate different opinions, as well as a willingness to accept the spirit of legal sanctions. Americans are able to maintain basically this kind of tolerance and spirit since the founding to the present. For instance, even though the Presidential debate of 1992 between Bush and Clinton was extremely intense, they could sill shake hands afterwards. Furthermore, when Clinton was elected president, after he stepped off the stage, Bush immediately went to congratulate him and even promised to help Clinton’s administrative transition and suggested working together in the future. I call this display an example of the spirit of sportsmanship in American law. There will be more discussion later in the book.

 

If the Government does not abide by the spirit of the law or have the capacity to tolerate criticism or dissent, then the law and Constitution will be empty. In China’s two thousand years of feudal history, the politics always followed the saying, "The winner becomes king; the losers are just bandits". As soon as power is seized, the elimination of opposition would follow. Of course, this tradition was not unique to China. Many counties of the world went through a similar feudal dictatorship phase. Even England took a long time before democracy and openness appeared. America was founded quite recently and did not carry a heavy historical baggage; she is blessed. 

 

In 1787, the United States Constitutional Convention met in Philadelphia. The delegates recognized that imperious rulers were not limited to King George III. From the beginning of the establishment of the Constitution, the main motive of the delegates was to set up numerous legal restraints to prevent future rulers such as King George III to emerge. It may even be said that the United States Constitution is based on fear: the fear of the emergence of authoritarian rulers; the fear of the power of the central government being too strong; and the fear of the loss of personal freedom under the government's control; and even fear that in a democracy the majority of the people oppress the minority.

 

By appreciating the trepidations of the delegates who drafted the Constitution, we can understand more easily the spirit of the American Constitution and principles of the rule of law.

 

Subsection 3.  From Natural Law to Constitutional Law

 

From the seventeenth century to the modern time, the words in Western culture vocabulary with the most philosophical meaning, aside from “God”, are “nature”, “law”, “human nature”, “natural rights”, “human rights”, and “reason”. These words put together actually formed the Enlightenment. In more or less degrees, these words were also included in Jefferson’s Declaration of Independence.

 

The original English text states: “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness”.

 

The word “law” has two meanings in English: order or governance, or it can mean judicial law. One of the achievements of the Enlightenment was to link“order” and "law" to become one harmonious entity. Today, any high school student anywhere can recite Newton’s three laws of physics. However, they may not know that Newton’s impact on the European societies during the seventeenth and eighteen century was hundreds or a thousand times greater than his achievements in science.

 

Newton’s classic physics proves not only that the world we live in is controlled by the laws of physics, but that even the entire universe, including the motions of astronomical bodies, are all governed by the laws of nature.

 

Pressing further, the philosophers would ask, "Does the human society also follow the natural law?"

 

Locke and Rousseau would answer, “Yes!”. Their theory is known as the Social Contract Theory and it contains the following points:

 

In the world of nature, everyone is an independent and free individual. He is endowed by nature certain rights from birth. But in the primitive society, the weak was devoured by the strong. There was no order or security, only chaos. Later, for the purpose of mutual reliance and security, the people organized themselves and entered into a contract with their leader. The people would accept the collective restraint and the guidance of the leader and give up absolute individual freedom in exchange for the protection of law and collective security. If this leader violates the contract between the people and the leader and abuses power, the people can overthrow the leader and replace him with another leader.

 

The concepts of natural right, including life, liberty and the pursuit of happiness found in Jefferson's Declaration of Independence all originated from the Enlightenment.

 

                                                                       Conclusion

 

The United States Constitution is only twenty some pages long. The language is clear and easy to understand.  Let us read its Preamble:

 

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America”.

 

But behind those simple words are a meaningful philosophical and far-reaching historical background. We only need to comprehend the class and cultural background of the delegates who drafted the United States Constitution, their fear of absolute monarchy, and their influence by the concepts of natural law, natural right, human right, and individual liberty of the Enlightenment, then what appears at first glance a dry and dull United States Constitution becomes a lively and thought provoking document.