Lawmaking

“ The real legislative power rests with the lower chamber, which directly represents the middle and lower classes, professional, business, and industrial. The action of lawmaking bodies is usually limited in scope by the provisions of a written constitution, and is modified by the public opinion of constituents. ”

“ Thus, at length, was realized the sublime conception of a nation in which every citizen lives under two complete and well-rounded systems of laws,—the state law and the federal law,—each with its legislature, its executive, and its judiciary moving one within the other, noiselessly and without friction. ”

“ The old system vests the law-making power in a legislative body composed of men elected by the people and supposed to be peculiarly fitted by reason of character, education, and training for the performance of that duty. These men come together and give their entire time through a period of some weeks or months to the consideration of proposed legislation, and the laws they enact go into immediate effect, and remain in force until set aside by the courts as unconstitutional or until repealed by the same authority that enacted them. ”

“ Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. ”

“ Here again the author displays a want of proper definiteness and precision, in the statement of his proposition. The people who make a law, can, upon the principles of all our institutions, either "repeal or abrogate or suspend it;" and if, as he supposes, our constitution was made by "the people of the United States," in the aggregate, then "the people of any State," or of half a State, may repeal, or abrogate, or suspend it, if they happen to be a majority of the whole. ”

“ Legislation unquestionably generates legislation. Every statute may be said to have a long lineage of statutes behind it; and whether that lineage be honorable or of ill repute is as much a question as to each individual statute as it can be with regard to the ancestry of each individual legislator. Every statute in its turn has a numerous progeny, and only time and opportunity can decide whether its offspring will bring it honor or shame. Once begin the dance of legislation, and you must struggle through its mazes as best you can to its breathless end,—if any end there be. ”

“ The essence of legislation is to prescribe laws, or regulations for society; while the execution of those laws and regulations, and the employment of the common strength, either for that purpose, or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is plainly neither the one, nor the other. ”

“ The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago. ”

“ In laws, we are obliged to act without ourselves determining, or promising any thing at all." [41] It is a rule prescribed; that is, it is laid down, promulgated, and established. It is prescribed by the supreme power in a state, that is, among us, by the people, or a majority of them in their original sovereign capacity. Like the ordinary municipal laws, it may be founded upon our consent, or that of our representatives; but it derives its ultimate obligatory force, as a law, and not as a compact. ”

“ The Constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature, in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature. The Constitution fixes limits to the exercise of the legislative authority, and prescribes the orbit in which it must move. ”

“ Let me single out two excellent institutions, not wholly American: the contrivance for making laws, and that for executing them. To make laws, the people choose the best men they can find and confide in, and set them to this work. They aim to take all the good of past times, of the present times, and add to it their private contribution of justice. Each State legislature is a little political academy for the advancement of jural science and art. ”

“ Legislation, therefore, is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent, and without it all law is as that of the Medes and Persians. ”

“ Nearly the whole domain of civil and religious liberty, education, suffrage, domestic relations, marriage, business transactions, property, professions, trades, contract relations, administration of the criminal law, and many other social and business relationships come within the sphere of the State Government. The fundamental law of each State is embodied in a written constitution drawn up by a constituent convention and ratified in most cases by the electorate at the polls. ”

“ Legislation, being merely the expression of the will of the community, was thought to be an operation so simple in its nature, that inexperienced reason could not readily perceive the necessity of committing it to two bodies of men, each having a decisive check upon the action of the other. ”

“ An act of the legislature, for I cannot call it a law, contrary to the first great principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. ”

“ The advocates of a national government, besides and beyond the intrusting of a particular jurisdiction to that government, wished to make it certain that its legislative power, in each act of legislation, should rest on the direct authority of the people. ”

“ We have already ascribed to the introduction of the Equality of all Men before the tribunal of Right, and before a Legislation which should discover with certainty every transgression and with equal certainty inflict the threatened punishment,—which Legislation has only been introduced in Modern Times through the influence of Christianity,—we have ascribed, I say, to such a Legislation a most important and highly beneficial influence upon the Manners of the Citizens. ”

“ The author of The Spirit of the Laws has shown with many examples by what art the legislator directs the constitution towards each of these objects. What makes the constitution of a State really solid and lasting is the due observance of what is proper, so that the natural relations are always in agreement with the laws on every point, and law only serves, so to speak, to assure, accompany and rectify them. ”

“ There must be a legislature to enact laws; there must be a judiciary to expound the laws enacted, and point out the individuals against whom they are to be enforced; there must be an executive arm to enforce the decisions of the courts. In every theory of government, where one of these exist, the others exist. Under our constitution they are divided into three parts, and apportioned among three coördinate bodies. ”

“ No one who has given the slightest consideration to the subject will dispute the proposition that, taking America as a whole, we now have twenty acts of legislation annually promulgated, and with which we are at our peril supposed to be familiar, where one would more than suffice. ”

“ General words indicate and affirm a general intent, and if the fact that different sections are differently affected is enough to make a law local, the field of legislation would be narrowed beyond anything that Congress could have dreamed. ”

“ We can see the policeman on his beat, or the judge in court, or the members of the legislature—the men who, respectively, maintain, administer, and make the laws; and we can see the record of the laws in books. But the idea or principle of Law which has caused men to construct all this machinery for the making and enforcing of the laws, exists only in the mind. ”

“ The people of any State may at any time meet in Convention, without a law of their Legislature, and without any provision, or against any provision, in their Constitution, and may alter or abolish the whole frame of Government as they please. ”

“ But where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. ”

“ Visigothic Theory Of Law.
Legislation is almost always imperative; it prescribes or interdicts; each legal provision usually corresponds to some fact which it either ordains or prohibits. Rarely does it happen that a law, or code of laws, are preceded by a theory on the origin and nature of power, the object and philosophic character of law, and the right and duty of the legislator. ”

“ The agents of legal change, Fictions, Equity, and Legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognizance of the public tribunals. ”

“ Now every society has the right of providing for what concerns the general interest, so that in permitting the parties to choose the judges of facts, the State reserves to itself the power to name the judges of right, who are the interpreters of the law. ”

“ The legislature of a state performs its whole duty under the constitution in this particular when it provides a law for the government of its courts, while exercising their respective jurisdictions, which, if followed, will furnish the parties the necessary constitutional protection. ”

“ Article III of the Constitution provides for courts and judges, and fixes their jurisdiction—their power—and gives direction as to trial and penalty in certain cases.
Thus we find that the Constitution guarantees a National government (a republican form of government) , confers certain powers formerly held by the people, provides an executive to enforce the powers granted, a legislative body to make laws under which the powers may be exercised, and establishes [pg 185] courts to construe and apply the laws enacted, to the end that human rights and liberties shall be protected. ”

“ The only exercise of sovereign power, properly so called, is in legislation, and there is no proper act of legislation except when the whole people comes to a decision with reference to the whole people. Then the matter decided on is as general as the will which decides on it ”

“ The power of Congress to pass laws to enforce rights conferred by the Constitution is not limited to the express powers of legislation enumerated in the Constitution. The powers which are necessary and proper as means to carry into effect rights expressly given and duties expressly enjoined, are always implied. ”

“ Such an order, being legislative in its nature and made by an instrumentality of the state, is a state law within the meaning of the Constitution of the United States and the laws of Congress regulating our jurisdiction. ”

“ The state produces as many laws as there are relationships between people, which must be determined. As the number of these relations are endless, legislation must operate incessantly. Laws, decrees, edicts, decrees, regulations must pour in hail upon the unfortunate people. ”

“ Some of the bills of rights in America declare, that the people have a right to meet together, and consult for the public safety; that their legislators are responsible to them; that they are servants, &c. Such declarations give people an idea, that as individuals, or in town meetings, they have a power paramount to that of the Legislature. ”

“ The legislative power being that, which is predominant in all governments, ought to be, above all, of this character; because there can be no security for the general government, or the state governments, without an adequate representation, and an adequate check of each in the functions of legislation. ”

“ Resolved, That for any state legislature to assume that authority would be—
1st. Blending together legislative and judicial powers; 2d. Hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort, for vindicating its own opinions, but the strength of its own arm; 3d. Submitting most important questions of law to less competent tribunals ”

“ Independently of the legislative measures, which internal circumstances require, you will deem it useful perhaps, to occupy yourselves on regulating laws, calculated to render the constitution active. ”

“ But, Sir, the people have wisely provided, in the Constitution itself, a proper, suitable mode and tribunal for settling questions of constitutional law. There are in the Constitution grants of powers to Congress, and restrictions on these powers. ”

“ That within the provisions prescribed by the Constitution, and by the laws enacted in accordance with the Constitution, the acts and powers of the Government are to be interpreted and applied so as to create and maintain a system, general, equal, and beneficial as a whole. ”

“ In that part of our policy called the state constitutions, principles, the reverse of these, prevail. Executive power is made dependent on legislative in some way, and vast care is taken to keep legislative and judicial power beyond the influence of executive. ”