This article were originally published as the Editor's page in The Beverly Hills Bar Journal, during Mr. Shacter's tenure.


Once again, the Conference of Delegates of the State Bar of California will convene in its quasi-legislative session this September. In some ways it reminds me of that convocation in Philadelphia in the summer of 1787 from which our Constitution emerged. This very Constitution is celebrating its bicentennial this year. Continuing my practice of the past two issues, I would like to share a few thoughts with you concerning our Constitution.

Our government was unique at its inception. Most of the mechanics of the state was based upon historical precedents. English and even Greek and Roman, and most of the liberal ideas translated into personal protections in the original Constitution and in the Bill of Rights were taken from the English liberal political philosophers. There were already existing English precedents, like those contained in the Petition of Right, for some of the personal freedoms. But the peculiar construction of the whole, the selection and balance, and the very fact that, for the first time, a great written Constitution had been designed and effected as a complete and finished work made the Constitution of the United States a document so unique that it served as the model for many other young nations. That we were able to produce such a remarkable, practical experiment in advanced democracy was due perhaps to two reasons. We had the opportunity to start afresh because we were a nation established by revolution and had no long-standing national government. But even more important, we were fortunate to have in the colonies the most astonishingly able set of politically minded men whom fate has ever collected together in any one country in any one era.

If rule by law is not the only meaning of America, it is a crucial one. Though the superlative may he disputed, it is not straining to suggest that the tradition of constitutionalism was -- and is -- the chief legacy of the American experience to the people of the world. The new "United States," as they were captioned in the first state document common to the nation, the Declaration of Independence, would be a society dedicated to freedom and equality. But this would be possible only under law, a law that the people would themselves make. The difference of America was thus the difference of law that applied equally to all.

On the surface this seems a curious claim to be making about America, that the most original contribution that America has made to the world is a system of law. The answer is to be found in how the colonists changed the fundamental law. They adopted a written constitution that placed immense power in the hands of a new institution, a Supreme Court of the United States. This single body was perhaps the most novel structural innovation the Founding Fathers made. As Alexis de Tocqueville was to observe in his prescient account of new world political institutions, Democracy in America: "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." This has been true throughout The course of American history, but it has been true only because of the Supreme Court. In America, law permeates the whole.  "Law touches every concern of man," Felix Frankfurter once wrote; "Nothing that is human is alien to it." This may not be true in many nations, or among many peoples, but it is true in America.

Another innovation was the separation of powers. The separation of powers principle in our law divides and limits authority even as it confers it. Congress is endowed with legislative power; it may not, therefore (except as a result of a specific grant or by implication) exercise executive or judicial power. The same restrictions apply to the other major branches of the national government: The terms judicial power and executive power, like legislative power, have a technical meaning. In the exercise of their respective functions neither Congress, President, nor Judiciary may, under the principal of separation of powers, invade fields allocated to the other branches of government. Instead of requiring that the departments be kept absolutely separate and distinct, however, the Constitution blends and mingles their functions. Congress was granted legislative power, but the grant is not exclusive. Law making is shared by the President in his exercise of the veto. The appointing authority is vested in the President; but the Senate must give its advice and consent to certain appointments.

Federalism, the second great limiting principle, means a constitutional system in which two authorities, each having a complete governmental system, exist in the same territory and act on the same people. In its American manifestation, federalism is a complicated arrangement whereby the national government exercises certain enumerated powers, all others being "reserved to the States respectively, or to the people." Each government is supreme within its sphere; neither is supreme within the sphere of the other. Thus federalism, like separation of powers and checks and balances, is a means of compelling government to control itself.

We are the heirs to a great constitution legacy. It is up to us who labor in its vineyards to broadcast its virtues in the hope that all citizens will come to a better understanding of just what we have.