The American Legal System

The American legal system is composed of many distinct parts: federal and state governments, laws, and courts. Federal law exclusively governs some areas of the U.S. legal system; other areas depend on the subtle nuances of state law. Some parts of the legal system are based on written laws, called statutes or codes, which are developed by governments. Other areas of the law depend on principles developed from years of legal tradition and court decisions. There are two main types of laws. Civil law provides for the resolution of disputes between private individuals, organizations, or governments. Criminal law governs the prosecution of those charged with serious offenses against public order, such as murder.

The basis for the American system of government, and the American legal system, is the U.S. Constitution.

Federal Government

The U.S. Constitution was ratified in 1789 and sets forth the structure of the U.S. federal government. Representatives from almost all of the states in existence at the time worked together to draft the Constitution. The state representatives realized that there were some areas in which a strong federal government was needed in order to keep the states united. However, the state representatives did not want a federal government that was too strong, nor did they want any one portion of the federal government to have too much power. These considerations help explain the current structure of the federal government.

The U.S. Constitution calls itself “the supreme Law of the Land.”¹ It is the fundamental authority for the American federal system of government. The Constitution defines three co-equal roles in the federal government:

• Legislative
• Executive
• Judicial

The legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch reviews the laws to make sure they are constitutional. This is the “checks and balances” system that describes the relationship among the three branches of the federal government. Each branch of government has a separate sphere of authority (balances). The actions of each branch of government are subject to review by the other branches (checks).

The U.S. Constitution also defines the relationship between the federal government and the states. At the time that the Constitution was drafted and ratified, people debated the appropriate relationship between the federal and state governments. The previous legal document that established the federal government, the Articles of Confederation, was too weak to keep the states joined together. However, an overly strong federal government was seen as an obstacle that would prevent states and individuals from controlling their own affairs. The states wanted to make sure that they retained the authority to control their own affairs. The Constitution contains specific provisions to reflect this divided authority.

The Constitution also provides some of the fundamental rights of individuals. Individual rights are located primarily in the Bill of Rights, which was ratified in 1791. The term Bill of Rights refers collectively to the first 10 amendments to the Constitution. These amendments are the basis for the personal rights that Americans hold most dear:

• Freedom of speech (First Amendment)
• Freedom of religion (First Amendment)
• Freedom from unreasonable search and seizure (Fourth Amendment)
• The right against self-incrimination (Fifth Amendment)

Legislative Branch

The lawmaking authority of the legislative branch of the federal government is outlined in Article I, section 8 of the Constitution. Collectively, the legislative branch is called Congress. The federal government actually has limited lawmaking power. Congress cannot make any laws outside the scope that the Constitution specifically delegates to it.

The U.S. Congress consists of two chambers: the U.S. Senate and the U.S. House of Representatives. The Senate has 100 members, two senators from each state. In this way, the Senate represents all states equally. The House of Representatives has 435 members. The House represents the population, as each Representative represents a congressional district. Congressional districts all have roughly the same number of people. The current number of people in each congressional district is 711,000. The congressional districts are redrawn after each decennial census and will next be redrawn after the 2020 census. Each state gets at least one representative no matter its total population size.

Article I, section 8 of the Constitution lists the powers delegated to Congress, which are very broad. Congress has the power to:

• Declare war
• Establish the post office
• Maintain armed forces
• Coin (or print) money
• Regulate commerce
• Make other laws necessary for carrying out its constitutional duties

The Commerce Clause grants Congress the power to regulate commerce between the states.⁵ Congress uses this provision as justification to regulate trade, or any other commercial activity, between the states. Many Supreme Court cases have reviewed the limits of this power. In general, if an activity has the potential to affect the trade relations between the states, then Congress is able to legislate it.

Congress also has the power to enact laws that are “necessary and proper” for carrying out its duties.⁶ Congress can use the power implied in this section to legislate in several different areas.

The Constitution specifies the basic lawmaking process. A bill is the initial draft of a potential law. Both chambers of Congress must approve the same bill, and the president must sign it before it becomes a law.⁷

The procedural documents of both chambers describe the process for moving bills through each chamber. Once a bill is introduced, it is generally assigned to a specialty committee. The bill is revised during the committee process, which usually includes hearings to determine why a law is needed in the first place. After the hearings, the committee votes on whether the bill should be sent to the full chamber for consideration. When a bill passes one chamber, it is forwarded to the other chamber for consideration.

Once a bill passes both chambers, it goes to a conference committee made up of both senators and representatives. This committee reviews both the Senate and House of Representatives’ versions of the bill. This committee cannot substantially change the bills being compared, but tries to reach a compromise on both versions of the bill. When the committee reaches a resolution on the bill, they report back to their respective chambers. Each chamber votes on the bill again. If the original conference committee cannot reach an agreement, the bill may be assigned to a new conference committee or go back into committees of each chamber for additional revisions.

The speaker of the House of Representatives and the president of the Senate sign all bills that pass in Congress before delivering them to the president. The president has 10 days to sign the bill. If the president does not sign it within 10 days, then it becomes law just as if the president had signed it.

Executive Branch

Article II establishes the power of the executive branch of government. The president of the United States, a nationally elected official, leads the executive branch of government. The president is also the commander-in-chief of the U.S. armed forces and is often considered the “face” of the United States.

The president has the power to enforce the laws of the United States and the responsibility for maintaining the day-to-day operations of the U.S. government. The president also has the power to sign or veto any legislation that Congress passes. (Congress can then override a presidential veto with a two-thirds vote of both the House and the Senate.) Once the president signs the legislation, it becomes an Act of Congress, a federal law passed by the Congress and signed by the president.

The president also appoints federal judicial, executive, and administrative officials. The Senate must approve some of the president’s appointees, such as Cabinet members or federal judicial appointees. The president also has the power to negotiate and enter into treaties with other countries. However, the U.S. Senate must ratify those treaties.

The role of the U.S. Cabinet is to advise the president. The Cabinet includes the U.S. vice president and the heads of 15 executive departments. President George Washington established the first Cabinet. Although the Constitution recognizes that the president should have advisers in executive departments, it does not specify the type or number of executive departments. Congress creates the executive departments.

Judicial Branch

Article III of the Constitution establishes the judicial branch of the federal government. This Article vests the judicial power of the United States in one supreme court. The U.S. Supreme Court is the highest court in the country.

The U.S. Supreme Court is the only court specifically required by the U.S. Constitution. Congress has the authority to determine the actual number of Supreme Court justices; currently, there are nine. The president nominates the justices when there is a vacancy on the Court. The Senate must confirm the nomination. Supreme Court nominees are usually highly respected state or federal judges or highly respected attorneys.

Supreme Court justices, similar to all federal judges, are appointed for life. They serve until their retirement, death, or removal. Supreme Court justices can be removed only if they are impeached and convicted by Congress. The Constitution requires that all federal court judges be appointed for life for a simple reason: to help promote an independent judiciary. The drafters of the Constitution did not want the review of law to be dependent upon popular political ideas. Instead, they wanted federal judges appointed for life, so that they could not be fired if their decisions were unpopular or not favorable to a particular political party. TABLE 3-1 lists the members of the U.S. Supreme Court as of January 2020.

TABLE 3-1 Members of the U.S. Supreme Court as of January 2020.

Structure of the Federal Judiciary. It is important to understand how the different courts in the federal system relate to one another. Once this structure is understood, it can be applied generally to state judicial systems.

Courts have the ability to hear only cases, or disputes, that are within their jurisdiction. Jurisdiction describes the types of cases that a court has the authority to hear. There are three main types of jurisdiction used to describe the function of a court:

• Original jurisdiction—The power of a court to hear the initial dispute between parties. These courts conduct trials. Usually trial courts have original jurisdiction.
• Concurrent jurisdiction—Jurisdiction that is shared by several different courts.
• Appellate jurisdiction—The power of a court to review a decision made by a lower court.

In the federal court system, federal courts have limited jurisdiction. That means that they can hear only certain types of cases that fall within a limited subject matter. The jurisdiction of the federal courts is determined by the Constitution and laws made by Congress. Federal courts can hear only the following kinds of cases:

• Disputes regarding federal laws or constitutional issues
• Disputes between residents of different states where the amount of money in controversy is greater than $75,000⁸

A court cannot hear cases that fall outside its functional or subject matter jurisdiction.

In addition to establishing the Supreme Court, Article III of the Constitution also gives Congress the power to make as many lower-level federal courts as needed. Under this power, Congress has established district courts, appellate courts, and some specialized courts.

District courts are the lowest level of courts in the federal court system. There are 94 judicial districts in the United States, with each state having at least one judicial district. Some states may be divided into many judicial districts, and each district may have more than one judge. The number of judges in a district is determined by the number of cases, or caseload, in the district. Usually only one judge hears a case at the trial court level.

The district courts are the workhorses of the federal judicial system and serve as courts of original jurisdiction. They might hear disputes between parties or conduct criminal trials for violations of federal law. Each federal district court also has its own bankruptcy court. The Constitution gives the federal government the sole power over bankruptcy law.

The next level of courts is the intermediate appellate courts. In the federal system, these courts are called the U.S. Courts of Appeals. There are 13 Courts of Appeals. The 94 district courts are grouped into 12 geographical circuits. There is also one circuit, called the Federal Circuit, which hears cases from specialized courts. The Courts of Appeals hear appeals from the district courts in their circuit. For example, the Seventh Circuit Court of Appeals hears cases from Illinois, Indiana, and Wisconsin. The home for the Seventh Circuit is in Chicago, Illinois. The number of judges in each circuit is determined by Congress. These courts usually hear cases in three-judge panels.

The Court of Appeals is a court of appellate jurisdiction. Courts of Appeals do not review the facts of a case, nor do they accept any additional evidence for the case. Instead, they review the record of the trial court only for mistakes of law.

The highest level of court in any judicial system, state or federal, is often called a “court of last resort.” The highest court in the U.S. federal system is the U.S. Supreme Court, a court of appellate jurisdiction. For the most part, the Supreme Court decides cases on appeal from the U.S. Court of Appeals.

The Supreme Court reviews the decision of the lower court to make sure that it complies with the law. The Supreme Court is under no obligation to review a decision from the U.S. Court of Appeals. A party has to ask the Supreme Court to review the case by using a petition called a writ of certiorari, which the Supreme Court justices review. The Court usually approves the petition if four of the nine justices decide that the Court should look at the case. The Court might decide to hear a case if it presents a question of whether a federal law is unconstitutional. It also might decide to hear a case if two or more of the federal appellate courts have ruled differently on the same question of federal or U.S. Constitutional law.

The Supreme Court has exclusive original jurisdiction to decide cases about disputes between state governments. It exercises concurrent jurisdiction with federal district courts in some cases, and exercises this original jurisdiction very rarely. Most of the cases heard before the Supreme Court are appeals cases.

The Supreme Court has the power to decide cases that involve questions about the federal Constitution and other federal laws. It can review both state and federal laws to make sure that those laws do not conflict with the U.S. Constitution. The authority to review laws in this way is called judicial review. The Supreme Court is the final authority on cases heard in the federal court system; as such, the decisions of the U.S. Supreme Court cannot be appealed. FIGURE 3-1 shows the structure of the U.S. federal court system.

State Government

In negotiating and drafting the U.S. Constitution, state governments gave up some of their own power in order to create the federal government. They did this because the first system of government after the American Revolution that was organized under the Articles of Confederation did not work. That document did not create a national government that could require unity on subjects of common interest. The U.S. Constitution changed that relationship.

Under the Constitution, powers that are not specifically granted to the federal government in the Constitution remain with the states. The Tenth Amendment to the Constitution formalized this relationship. The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”⁹

State governments existed before the federal government as we know it today. Similar to the federal government, most states are organized under a constitution, which may vary widely from the U.S. Constitution. Although the federal Constitution primarily describes the relationship between the federal government and the states, state constitutions primarily describe the relationship between a state and its citizens. For this reason, state constitutions often list many more individual rights than are listed in the federal Constitution. State constitutions also tend to be longer than the federal Constitution. Finally, state constitutions are generally easier to change than the federal Constitution.

There are typically three branches to most state governments, roughly aligned in the same manner as the federal government. Most state legislatures resemble the legislative branch of the federal government and have two different legislative chambers. A governor leads the state executive branch.

State governments have the general authority to govern and make laws for the state and its citizens. However, this power is not absolute. The federal Supremacy Clause limits this broad power to make laws.¹⁰

The Supremacy Clause sets forth the rule that the federal Constitution, treaties, and federal law outrank any conflicting state laws. This clause means that the U.S. Constitution and federal laws are the highest laws in the land and states must follow the federal laws. The clause permits states to make their own laws only so long as those laws do not conflict with the U.S. Constitution or other federal laws. Because the U.S. Constitution limits the federal government in the types of laws that it can enact, there are still plenty of areas for state governments to legislate.

Most states have a judicial system that looks similar to the federal system, with a system of trial courts, appellate courts, and courts of last resort. The trial courts, the original jurisdiction courts for a state, are organized by geographical location, with county-level courts being the typical entry-level courts for hearing most disputes. Trial courts have the general authority to hear all sorts of cases, but they are usually limited to hearing disputes between citizens of the state.

States usually have two appellate courts: a state intermediate appellate court and a state supreme court. States usually only have one type of each court. The intermediate appellate courts hear appeals from the trial courts, whereas the state supreme court hears appeals from the appellate court. It is important to remember that not all states have the exact same structure, even though you can draw parallels when discussing structure in general. These courts may go by different names in different states. For example, the highest court in New York is called the New York Court of Appeals. In many states, the court of appeals is the intermediate appellate court. FIGURE 3-2 shows the general structure of a state court system.

The relationship between the state and federal court systems is very interesting. The U.S. Supreme Court has complete authority over courts in the federal system. It also has complete authority over interpretations of federal law and the U.S. Constitution. However, the Supreme Court has no authority over the organization or procedures used by state courts. The Supreme Court may not interpret issues that rely solely on state law or issues arising under state constitutions. Only the highest court in a state is allowed to make interpretations about that state’s law.

Federal and state courts do not exist in separate spheres. State courts do have the power and authority to review cases that concern issues of constitutional or federal law.

However, the state courts must yield to the superiority and previous decisions of the Supreme Court when doing so. The U.S. Supreme Court can review a state court case in the event that the case concerns a question of federal law or a federal constitutional issue. TABLE 3-2 compares the federal judicial system with a generic state judicial system.

TABLE 3-2 A Comparison of the Federal and State Judicial Systems