AMERICAN CULTURE, CONSTITUTIONALISM,

AND THE COMMON LAW

Culture
- The beliefs, customs, arts, etc, of a particular society, group, place, or time
Constitutionalism
- The belief that a government should be based on a Constitution
- Constitutional principles
Common law
- A case law or precedent
Civilization and Culture
- Both refer to the overall way of life of a people and a civilization is a culture writ large
- Both involve the values, norms, institutions and modes of thinking to which successive
generations in a given society have attached primary importance.

United States as BUSINESS CIVILIZATION

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Its values, ideals and even its higher intellectual qualities, including juristic thought,
revolve around the elements of the BUSINESS SYSTEM. (trade, commerce, finance,
professions and similar economic activity)
Paradigm of a successful business culture

Characteristics of US Business civilization

1. Private property
2. Contract and freedom of Contract
3. Industrialism (including the factory, machine, mass production, the city and the integration
of the labor class
4. Business (corporation, credit structure, investment banking and marketing)
5. Profit motive
6. Individualism (freedom to choose any business or profession without social interference,
free competition and freedom to keep any advantages acquired.
Four main periods of Business Civilization
1.
2.
3.
4.

Pre-Industrial/ Agricultural period

The Corporate industrial period
The period of corporate industrial monopoly
The period of Corporate finance (from World War I to date)

American law
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Most inspired by ECONOMIC rather than POLITICAL REFERENTS.

GENERAL CONCLUSION
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CIVIL LAW system is a product of POLITICAL REFERENTS (i.e. state sovereignty).

COMMON LAW responds to ECONOMIC REFERENTS (i.e. Economic interest)

American legal historians point out that in their country, judges had systematically advanced the
legal principles expressing the values of a society increasingly committed to MARKET CAPITALISM
and ECONOMIC GROWTH.
James Willard Hurst
-

Points out that in the early phases of industrialization, LAW IN ACTION reflected the
premise that it was COMMON SENSE, and it was good, to use the law to multiply the
productive power of the economy.

Edward Corwin
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The basic pillar of Capitalism which is the PROTECTION OF ESTABLISHED PROPERTY

RIGHTS AGAINST INTERFERENCE BY THE STATE is the basic doctrine of American
Constitutional law.

Legal and Economic history of the United States cannot be separated because the use
of law and disputes over uses law are so woven into its Economic growth.
Colonization of the Philippines
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Part of the nature of American civilization which is creative, expansionist and imperialist.
(exploitation of resources for 20 years)

Stanley Karnow
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The single, overriding theme of American policy towards the Philippines was to remake
Filipino society into an image of the United States.
Goal: cultural imperialism, not to mention economic exploitation.

Constitutional Law of US
-

Best understood when it is read in the light of capitalism and capitalism is BEST
UNDERSTOOD WHEN IT IS READ IN THE LIGHT OF CONSTITUTIONAL LAW.

AMERICAN CONSTITUTIONALISM
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Liberty of the individual, an offshoot of the philosophy of individualism.

Liberty of the individual (in the perspective of American culture)
Implies freedom of enterprise and industry, since LAW AND CULTURE intersect, it can be
seen that the legal culture of American civilization has shaped its constitutional
development as well as that of its common law, the law of the land.

SOCIAL PHENOMENON according to Lawrence Tribe

First, values and commitments, if they do not obviously originate in constitutional structures, or
history, must find their location in some other source deeply linked to our national experience.
LOCATION matters. Sometimes constitutional provisions themselves identify this other source
For example: 5th and 14th Amendment Due Process Clauses through their own use of the phrase
due process of law suggest the possibility that legal analysis generally might reveal patterns
of emphasis, recurring recognitions or ordinary government action, supplying norms for
evaluating the propriety of legislation or other official acts that are the subject of constitutional.

The Fifth and Fourteenth Amendments to the United States Constitution contain a 'due process clause'. Due process
deals with theadministration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life,
liberty, or property by the Government outside the sanction of law.[1] The Supreme Court of the United States interprets
the clauses however more broadly because these clauses provide four protections: procedural due process (in civil and
criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation
of the Bill of Rights. Due process ensures the rights and equality of all citizens.

(The Fifth Amendment to the United States Constitution provides:

[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . . [5]
Section One of the Fourteenth Amendment to the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . . [6] )

THIS COMMON LAW, IN PARTICULAR, SERVED AS AN ORGANIZING FIELD OF REFERENCE

FOR THE FIRST DECADES OF THE 20TH.
U.S sought to re-create the Philippines in its own image, that constitutional development also
distorted the shape of our constitutional processes.

2. AMERICAN ORIGINS: THE BIRTH OF JUDICIAL

CONSTITUTIONALISM
-

LAISSEZ-FAIRE
Economics: a policy that allows businesses to operate with very little interference from the
government
- Shaped the political thought during the Industrial Revolution

Commodore George Dewey

- Steamed into Manila Bay in 1898
- The country is peaked into the AGE OF ENTERPRISE.
- Industrial Revolution enthroned with the philosophy of individualism even in political
arena.
-development of various economic forces headed by the emerging corporate
centurions, fiercely struggled not only with each other but also with populist forces
and labor unions for a share political power.
- LAISSEZ FAIRE (dominance/hegemony, shaped the political thought)
Readings: (which became the reading fare of the members of the industrialist class, for reasons
other than literary)
1. The Wealth of Nations (Adam Smith)
2. Social Statics (Herbert Spencer)
-

economic thought propelled by the business civilization of America PENETRATED THE

POLITICAL SPHERE which began to reshape the law of the land.
DECLINING YEARS OF LAISSEZ FAIRE
- gave birth to a new legal doctrine which soon pervade American jurisprudence
For example:

The task of an intellectual midwife was performed by the elite of the American bar
Twin Principles
1. Substantive Due Process
2. Liberty of Contract (Munn v. Illinois)
- Freedom of contract is the freedom of individuals and groups (such as corporations) to
form contracts without government restrictions. This is opposed to government restrictions such as
minimum wage, competition law, or price fixing.
Munn v. Illnois
- Dissent: Subversive of the rights of private property
- Munn v. Illinois, case decided by the U.S. Supreme Court in 1876. Munn, a partner in a Chicago warehouse firm, had been
found guilty by an Illinois court of violating the state laws providing for the fixing of maximum charges for storage of grain
(seeGranger movement). He appealed, contending that the fixing of maximum rates constituted a taking of property without
due process of law. The Supreme Court upheld the Granger laws, establishing as constitutional the principle of public
regulation of private businesses involved in serving the public interest.

American Bar Association

- Responsible for the writing of Laissez-faire into American Constitution
- It was strategic position of the lawyers and the judges to put the theory of laissez faire into
legal jargon which accounted for their success in recasting judicial thought into the mold
of the prevailing economic philosophy.
Influential jurists and commentators
- Thomas Cooley (most influential writer of American Constitution; book on
Constitutional Limitiations which became the conservative Bible)
- Justice Stephen Field ( utilized his position in the high court to espouse his individualistic
philosophy)
- Christopher Tiedeman (Limitations of Police Power, admits in his preface that he
was writng to defend the conservative classes, who were the torch-bearers of the business
civilization in America.)
The Conservative classes stand in constant fear of the advent of an absolutism more
tyrannical and more unreasoning than any before experienced by man, the
absolutism of a democratic majority
If the author succeeds in any measure in his attempt to awaken the public mind to
awaken the public mind to a full appreciation of the power of Constitutional
limitations to protect private rights against radical experimentation of social
reformers, he will feel that he has been amply requited for his labors in the cause of
social order and personal liberty.
The work of these three legal minds was undertaken when the giant corporate
aggrupations reigned supreme in the United States. Thus, the traditional weapon of
the states police power, was rendered IMPOTENT when business giants emerged as
DOMESTIC MONOPOLIES.
-POWERFUL STATES which had let the big corporations alone suddenly woke up to find
that a new form of power had rendered their POLICE POWER INEEFECTIVE.

For instance, in the battle between STATE and CORPORATION, the courts delivered
the COUP DE GRACE against the former.
LARGE CORPORATIONS emerged as victor in judicial arena and BEGIN TO EXERCISE
POLITICAL POWER.

3.

How the Business civilization wrote LAISSEZFAIRE into the American Constitution

Constitutional Revolution started with Slaughter House cases

Term:

1851-1900
1872

Location: Former Louisiana State Capitol Building

Facts of the Case
Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. Competitors argued that this
created "involuntary servitude," abridged "privileges and immunities," denied "equal protection of the laws," and deprived them of
"liberty and property without due process of law."
Question
Did the creation of the monopoly violate the Thirteenth and Fourteenth Amendments?
Conclusion
Decision: 5 votes for , 4 vote(s) against
Legal provision: US Const. Amend. 13, 14, 15
No. The involuntary servitude claim did not forbid limits on the right to use one's property. The equal protection claim was misplaced
since it was established to void laws discriminating against blacks. The due process claim simply imposes the identical requirements on
the states as the fifth amendment imposes on the national government. The Court devoted most of its opinion to a narrow construction
of the privileges and immunities clause, which was interpreted to apply to national citizenship, not state citizenship.

The Due process according to Lawrence Tribe was an ambiguous phrase and that subject of Constitutional challenge.

The due process argument in this case, so ably advocated by retired Supreme Court Justice Campbell, lost out by one vote,
but having been invoked for the for the first time, it was unexpected that it should win over to its cause four out of nine justices.

Wynehamer v. New York

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set aside a legislative prohibition against the sale of liquor as violative of the due process.

the courth ruled that, THERE ARE SOME ABSOLUTE PRIVATE RIGHTS BEYOND THE MAJORITIES REACH AND AMONG
THESE CONSTITUTION PLACES RIGHT OF PROPERTY.

- this decision articulated a new twist to the due process clause

DUE PROCESS OF LAW
-

Does not mean the very act of legislation which deprives the citizen of his rights and property since such legislation would be
unjust, unreasonable and wrong.

Where property rights are acquired by citizen under existing law, NO BRANCH OF GOVERNMENT CAN TAKE THEM AWAY
EXCEPT THE COURTS OF JUSTICE WHICH, IN THE COURSE OF ADMINISTERING AND INTERPRETING SUCH
EXISTING LAWM FINDS THAT SUCH PROPERTY RIGHTS WERE HELD CONTRARY TO SUCH EXISTING LAW.

Legislature cannot pass a law declaring that such property rights no longer exist, otherwise the constitutional provison would
mean that NO PERSON SHALL BE DEPRIVED OF PROPERTY OR RIGHTS UNLESS THE LEGISLATURE SHALL PASS A
LAW TO EFFECYUATE THE WRONG.

Ex. YICK WO v. HOPKINS

Summary of Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).

Facts
Yick Wo was imprisoned for operating a laundry in a wooden building in violation of a San Francisco statute. That statute vested in the
board of supervisors the discretion to grant or withhold licenses to operate laundries in wooden buildings. Yick Wo had operated the
laundry in the same building for 22 years and fire wardens and safety inspectors had inspected the premises and found them safe. The
board denied licenses to all Chinese-American applicants but denied only one of 80 non-Chinese Americans.
Yick Wo was fined ten dollars and was imprisoned for failing to pay. Yick Wo sued the Supreme Court of California for a writ of habeas
corpus and the Court found that the board of supervisors had acted within the scope of its authority and denied the petition. The
Supreme Court of the United States granted certiorari.

Issues
1.
2.

May a city enforce an ordinance in a racially discriminatory manner?

Does a law or ordinance granting a person or entity absolute discretion to grant or deny permission to carry on a lawful
business violate the Fourteenth Amendment to the U.S. Constitution?

Holding and Rule (Matthews)

1.
2.

No. A city may not enforce ordinances in a racially discriminatory manner.

Yes. A law or ordinance granting a person or entity absolute discretion to grant or deny permission to carry on a lawful
business violates the Fourteenth Amendment to the U.S. Constitution.

If the statute were discriminatory on its face the court would have applied strict scrutiny. In this case however the statute was not
discriminatory on its face and the court looked to rational basis. The statute was ostensibly intended to reduce the risk of fire; however
the court also noted that only Chinese laundries were affected by the statute. The court concluded that the statute was intended to
reduce Chinese laundries rather than the risk of fire and ruled that the statute was invalid under the Due Process Clause of the
Fourteenth Amendment.

The court ruled that the fundamental rights to life, liberty and the pursuit of happiness, considered individual possessions, are
secured by those maxims of Constitutional law.

The court also evolved the doctrine of liberty of contract, it declared that the citizens liberty mentioned in 14th Amendment
refers NOT ONLY TO HIS FREEDOM FROM PERSONAL RESTRAINT, BUT IT ALSO INCLUDES THE RIGHT TO PURSUE
ANY LIVELIHOOD, and for the purpose to enter into all contracts which may be proper and necessary to his carrying out that
livelihood

These doctrines constitute laissez faire in legal mantle, and for the next three decades, the wheel of judicial thought turned along the
same conservative groove. Such doctrines was born out of BUSINESS CIVILIZATION.