Brief History of US Law

Rule of Law

The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself. The Code of Ur-Nammu is the oldest known surviving law codes. It is from Mesopotamia (modern day Iraq) and is written on clay tablets, in the Sumerian language c. 2100–2050 BC.

The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. Core principles of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including Confucianism.

Roman law which spanned over a thousand years still influences modern legal practice including many current Latin legal terms and concepts. In the early days of the Roman Republic, the commoners rose against their aristocratic masters and demanded that the laws by which they would be judged should be made known. When the aristocrats resisted, preferring to impose the law arbitrarily, the people quit the city of Rome, leaving the city defenseless and without workers to keep it running.

The great secession led in 450 BCE to the promulgation of the Twelve Tables of Law, which were inscribed on bronze tablets and placed in the agoras for all to read. All citizens were expected to read and know the law, indeed when the Gauls burnt the city in 390 BCE and the tablets were destroyed, all the schoolchildren were able to recite them from memory and they were easily reconstructed.

That the laws shall be written down and promulgated for all to know was a universal value. In Greece, the laws of Solon were inscribed on wooden cylinders and placed in the markets. Aristotle stated in Politics that “the rule of law…is preferable to that of any individual…[H]e who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.”

In India, Ashoka the Great ruled from 269 BCE to 231 BCE and inscribed the Code of the Dhamma on 50-foot pillars of stone throughout the land, declaring in Edict Number 4 “that there should be uniformity in law and uniformity in sentencing.” Ashoka appointed Dhamma Officers who went out into the provinces, reading the edicts aloud to the people and helping them to understand his laws.

English Common Law

That the law should be known to all was fundamental, but equally important was that the law should not be for sale. When the Barons of England confronted King John in 1215 on the meadow of Runnymede, one of their chief complaints was that access to the courts had become matter of access to money and that judgments were for sale to those who chose to pay for them. This led to the most long-lasting provision of Magna Carta, one still in force in the United Kingdom and many other common law jurisdictions:

The Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law we know today as the common law.

U.S. System of Law

The United States legal system developed primarily out of the English common law system (with the exception of the state of Louisiana, which continued to follow the French civilian system after being admitted to statehood). However, some concepts from Spanish law, such as the prior appropriation doctrine and community property, still persist in some US states, particularly those that were part of the Mexican Cession in 1848, see video below.

In June of 1776, Virginia was the first state to adopt a constitution; the enumerated principles of the Virginia Constitution were promptly adopted by all the other States and became the foundation of our Federal Constitution. The Continental Congress of the thirteen British colonies declared independence from Great Britain on July 4, 1776 forming the United States of America. On July 12, 1776 a committee appointed by the Second Continental Congress began drafting the Articles of Confederation to serve as its first constitution and an approved version was sent to the thirteen states for ratification in late 1777. The formal ratification by all thirteen states was completed in early 1781. The Articles of Confederation resulted in a Federal Government that was too weak. In May 1787, the drafting of a new constitution (our current form of government) began and by the end of 1788 the constitution was ratified by eleven states.

On December 15, 1791, Virginia became the 10th of 14 states to approve 10 of the 12 amendments, thus giving the Bill of Rights the two-thirds majority of state ratification necessary to make it legal. Of the two amendments not ratified, the first concerned the population system of representation, while the second prohibited laws varying the payment of congressional members from taking effect until an election intervened. The first of these two amendments was never ratified, while the second (the 27th amendment) was finally ratified more than 200 years later, in 1992.

In 1803 the Supreme Court assumed new powers and applied the principle of “judicial review”; the power of federal courts to void acts of Congress in conflict with the Constitution, when it issued the Marbury v. Madison decision. This decision is the most important case in the history of the Supreme Court. Many landmark decisions wouldn’t have been made and major rights and privileges that we all enjoy would not have come into existence.

Under the doctrine of federalism, each state has its own separate court system, and the ability to legislate within areas not reserved to the federal government. However, the U.S. Constitution, through the supremacy clause (Article VI, section 2), is the supreme law of the land and no other law (federal, state or local) can conflict with it.

A hierarchy of law exists in the U.S.; no state law can conflict with federal law, no local county or municipal law cannot conflict with state law. If a person is charged with a local ordinance that conflicts with some portion of state or federal law, that ordinance is considered void and unenforceable. If there is a conflict between two laws, the higher level law always wins out no exception.

On July 3, 1844, Macon B. Allen, became America's first Black lawyer and amazingly in 1848, although he was not considered a citizen under the constitution, Allen also became the first black person to hold a judicial position in America. Despite this early achievement, by 1910 there were only 795 black lawyers in America.

American Bar Association 

Shortly after the end of the American Civil War, the United States Congress passed the 14th and 15th amendments to the Constitution and four statutes known as the Reconstruction Acts.

There was a major push to organize bar associations. This was most likely an attempt to exclude blacks from the legal profession and further limit the rights of newly freed slaves who were provided citizenship and legal status under the fourteenth amendment.

Under the guise of inclusion, John Swett Rock, a black doctor and lawyer became the first black person admitted to the Supreme Court bar in 1865. Dr. Rock was known to be gravely ill and it is believed he was chosen so his admittance to the bar could be publicized, even though he was thought too ill to actually argue cases before the Supreme Court, he died in 1866.

Racist Conspiracy?

The Reconstruction Era, 1865-1877, provided free blacks and freed former slaves with equal rights under the constitution which was enforced by the U.S. Government and Army.

The American Bar Association was formed in 1878. Prior to the ABA, most practicing lawyers never attended law school. Aprenticeship and independent study (reading the law)  was the method by which most people entered the legal profession before the advent of law schools. Efforts by the American Bar Association (ABA) began to set educational requirements for bar membership. By the 1890’s the ABA begun convincing states to limit admission to the Bar only to those persons who had satisfactorily completed several years of post-graduate institutional instruction and created a new legal system requirement. During the 1920’s and 1930’s, the American Bar Association successfully lobbied for unauthorized practice of law statutes in each state making it illegal for anyone other than lawyers trained in ABA aproved schools to practice law. See: “Nonlawyers and the Unauthorized Practice of Law”, Fordham Law Review, (volume 67, issue 5, article 32). 

The ABA caused blacks to be excluded from the legal profession by colluding with state governments and courts. Demographics, the statistical data of a population including average age, income, educational level, etc., are used by institutions to discriminate and exclude. Modern racist use "demographic racism" instead of the overt racism of the past to discourage, exclude and control black and other minority populations. Below are some examples:

  • After the ABA successfully lobbied for mandatory law school admission to ABA accredited schools; schools serving white students were accredited and schools serving black students were denied accrediation.
  • In 1914 the ABA accidentally admitted its first three black members, but rescined their admission, stating their well settled practice that only white men could be members.
  • The ABA's minimum undergraduate grades and Law School Admission Test (LSAT) standards for accrediation has a racial impact. The average LSAT score for blacks is 142, compared to 152 for whites. The ABA won't give accrediation to any school whose students on average score below 143. 
  • It's no secret that whites wealth is as much as 20 times greater than black wealth. The average cost of becoming a lawyer is now more than $200,000. Since blacks have substancially lower incomes and wealth than whites, many black kids who dreamed of becoming lawyers get shut out.  
  • The structure of the bar exam, which many argue does little to predict who will be sucessful as a lawyer, excludes blacks at much higher rates than whites. 
  • After the ABA increased admission and accrediation standards, Black law schools started closing almost immediately and the proportion of Black lawyers decreased and didn't start rebounding until 1970, the beginning of affirmative action. Blacks are less represented in the law than in almost any other profession, including physicians. If there were no affirmative action, it is estimated U.S. law schools would admit fewer the 2,000 black students each year.

For a more detailed analysis of the ABA's racist history, see "No African-American Lawyers Allowed: The Inefficient Racism of the ABA's Accreditation of Law Schools".

Once law school became a requirement to practice law, gaining access to legal information became harder and of course lawyers had no incentive to share this information or their skill with others; unless they were paid. Lawyers now had to recoup the cost of their legal education and legal fees rose. The law school admittance process also restricted access to certain groups and many minority communities are still under represented within the legal system.

The legal profession is not the first to protect itself. In medieval cities, craftsmen formed guilds, associations and fraternal organizations including, Freemasonry to control and protect trade secrets. During the 1400’s, the secret skills of Murano Glass Makers were so highly prized that any glass-maker who tried to leave the island of Murano would have his hands cut off. Today trade unions still protect their profession by restricting the number of apprentices and by preventing non-union workers from entering a worksite.

Nolo the largest publisher of self help legal publications was founded in 1971. By 1997, the Texas Unauthorized Practice of Law Committee (a committee of the Texas Supreme Court) opened investigations on Nolo and similar publishers, inquiring whether their publications constituted practicing law without a license. Saying that the investigation was "the first step toward widespread state censorship", Nolo sued, seeking a declaratory judgment that its publications were legal. It was joined in the action by the American Association of Law Libraries and the Texas Library Association. In response, the Texas Legislature enacted HR 1507, which expressly exempted websites and textbooks from accusations of practicing law without a license, providing they "clearly and conspicuously state that the products are not a substitute for the advice of an attorney". In light of this, the court committee dropped its contest of Nolo's suit. Texas lawyers were probably upset that Nolo was making it too easy for ordinary people to bypass lawyers and their fees. Time Magazine article Aug. 3, 1998.

Yale Law School provides Law, History, Economics, Politics, Diplomacy and Government digital documents from 4000bc thru the 21st century. For additional history see Duhaime’s Time table of world legal history

Reprinted with permission from "Legal Research for Non-Lawyers" (Chapter 2)

– Copyright 2015, Randall Hill

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