THE PRINCIPLE OF SEPARATION OF POWERS IN THE UNITED STATES LEGAL SYSTEM

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF INTERNATION LAW PHẠM NGỌC TƯỜNG VÂN THE PRINCIPLE OF SEPARATION OF POWERS IN THE UNITED STATES LEGAL SYSTEM BACHELOR THESIS MAJOR: INTERNATIONAL LAW SPECIALTY SUPERVISOR: Ph.D NGUYỄN THỊ BÍCH NGỌC LANGUAGE SUPERVISOR: Ph.D ĐỖ MAI HẠNH HO CHI MINH CITY - 2011 I protest that this dissertation is my own study, with the guidance of the supervisor The information other than my idea presented in this dissertation is fully cited I would bear full responsibility for my protest The dissertation‟s author Phạm Ngọc Tường Vân INTRODUCTION CHAPTER 1: FUNDAMENTALS OF THE UNITED STATES LEGAL SYSTEM 11 1.1 The founding history of the United States .11 1.1.1 The immigration from Britain and the foundation of the United States 13 1.1.2 Characteristics of the colonies 16 1.1.3 The revolution for independence and the establishment of the United States 19 1.1.4 Drafting and ratifying context of the Constitution of the United States 22 1.2 Features of the United States legal system 25 1.3 Conclusion 36 CHAPTER 2: THE PRINCIPLE OF LIMITING THE LEGAL 38 POWER IN THE UNITED STATES LEGAL SYSTEM 38 2.1 The basic division of the legal power between the states and the federation .38 2.1.1 The organic power of the states 38 2.1.1.1 Legislative power .38 2.1.1.2 Judicial power 42 2.1.2 The limitation in power of the federal government 43 2.1.2.1 Legislative power .43 2.1.2.2 Judicial power 51 2.1.3 Concurrent federal and state powers 51 2.2 Features of the principle of separation of powers in the United States legal system 54 2.2.1 The relationship between federal and state legislative power 54 2.2.2 The relationship between the multinational agreements and domestic laws of the United States 58 2.2.3 Conflict of law in the United States legal system 63 2.2.4 Experience lessons for Vietnam from studying principles of legal competence limitation in the United States legal system 69 2.3 Conclusions 71 AFTERWORD 73 INTRODUCTION The neccessity of doing research After a 20-year hiatus of severed ties, President Bill Cliton announced the formal normalization of diplomatic relations with Vietnam on July 11, 1995 Subsequent to President Clinton‟s normalization announcement, in August 1995, both nations upgraded their Liaison Offices opened during January 1995 to embassy status1 This summer, we celebrates 16th anniversary of the normalization of diplomatic relations between two countries On the occasion of this important milestone, as a law student, the author thinks a research about the United States legal system must be conducted The relationship between the United States and Vietnam has become deeper and more diverse in the years since the political normalization The two countries have broadened their political exchanges through regular dialogues on many fields, especially in legal field There have been a number of books on the United States legal system established in Vietnam with the friendship of the people of the United States of America Although most of the books are translated books, causing some difficulties for Vietnamese readers because of translation, but the books have helped Vietnamese scholars in researching the United States legal system The author was fortunate to be able to read some of these books, along with studying an overview of the United States legal system at Ho Chi Minh Kurt Campbell, State’s Campbell at U.S.-Vietnam 15th Anniversary Reception, available at http://www.america.gov/st/texttrans-english/2010/July/20100716114120su9.505862e-02.html University of Law and therefore has a excited passion for researching the Constitution of the United States Based on the above matters, the author decided to choose the topic “The principle of separation of powers in the United States” for the author‟s dissertation The purpose of the dissertation Researches on the United States legal system in general and on the principle of separation of powers in the United States have been conducted globally since the United States proved for the entire world its success by applying this principle However, in Vietnam, there have been not much documents have concerned this matter Consequently, my dissertation aims at providing readers an overview on the United States legal system and bringing more understanding of features of the Constitution of the United States In short, my dissertation expresses a desire to build a legal system in which the freedom of individuals are kept and the social order is maintained, fundamental principle to enrich the country more wealthy and prosperous The limitations of the dissertation Due to time and material limitations, the author has certain limitation in some issues which are the objects of the study as follows: - Firstly, this dissertation will focus on analysing the principle of separation of powers in the United States legal system Consequently, within the scope of the dissertation, other important issues of the United States legal system that require independent researching – such as the checks and balances system2 - will not be discussed - Secondly, although this dissertation concerns the principle of separation of powers, it only focuses on discussing and analyzing acts of the principle in the field of federal government and state government Hence, the dissertation will not concern other legal issues of the principle of separation of powers in general, such as the principle of separation of powers between three separate and distinct power branches – legislative, executive and judicial branches - Thirdly, besides a general introduction about the principle of separation of powers in the United States, other contents that are out of the scope of the principle of separation of powers between federal government and state government are limited, such as one layer of government – local government - Finally, the author will discuss and analyze the historical context of forming this principle, the content and the meaning of this principle in the United States legal system, without mentioning particular major laws of each government The methodology of the dissertation The basic method used in the process of research this dissertation is materialistic dialectics On that base, the author will combine different legal methods as follows: System set forth in the United States Constitution which devides governing power between Legislative, Executive and Judicial branches Each brach exercises some form of authority over the others, thereby balancing power across many inviduals and institutions James Wilson, American Government: Institutions and Policies, 7th ed., Boston, Houghton Mifflin, 1998, p 27 - Synthetic method: To achieve the purpose of this dissertation, these collective documents include information on media, paper and electronic publication, websites of the Library of Congress American Memory, the White House, USInfo, National Conference of State Legislatures and et cetera Books on the principle of separation of powers in the United States, international, regional and domestic legal instruments and relevant case laws are also necessary materials - Analytical method: To clarify the fundamentals as well as to access the realities and to draw suitable suggestions to the problems from the logical thoughts - Comparative method: To study Vietnamese and American state form and identify their similarities and differences in the relevant fields Furthermore, to try to know the background and explain reasons of those similarities and differences To accomplish this dissertation, several methods have been employed Three most commonly used methods – synthetic, analytical and comparative – are applied with coordinate The literature review of the research In Vietnam, although there have been a number of research works on the United States, the researches on the principle of separation of powers between federal government and state government in United States are much less than those on the principle of separation of powers between three branches of the government (which are legislative, executive and judicial branches) According to the author‟s research, besides academic articles of certain scholars such as Prof Ph.D Le Van Cam, Assoc Prof Ph.D Pham Duy Nghia, or Assoc Prof Ph.D Truong Dac Linh in some legal journals such as State and Law Review, Judicial Science Review or Jurisdiction Review, there are remarkable books as follows: - “Learning American law in the context of that Vietnam joining in regional and global economic” of Assoc Prof Ph.D Pham Duy Nghia (2001)3: the work has profound analysis, especially on practical issues of economic and social conditions in Vietnam when Vietnam joining in the globalization and challenges that Vietnam will have to face in fiercely competitive, dynamic market - “Things to know about American law” of Pham Minh (2003)4: This book gives readers an overview about American law, including the origin of American law, the history of forming the United States legal system and essential issues of American law at a modern society - “How was American Constitution made out” of Nguyen Canh Binh (2009)5: Along with a special passion of Constitution, Nguyen Canh Binh has provided a comprehensive picture of the birth of the United States Constitution, as an explanation for many people who are still wonder how the United States Constitution can be in force until today and seem to endure its validity in further future In respect of dissertation, there are certain issues concerning the United States Constitution, such as, how the Constitution was made, a content and meaning of the Constitution Among them, the book “How was American PGS TS Phạm Duy Nghĩa, Tìm hiểu pháp luật Hoa Kỳ điều kiện Việt Nam hội nhập kinh tế khu vực giới, nhà xuất Chính trị quốc gia, 2001 Phạm Minh, Những điều cần biết pháp luật Hoa Kỳ, nhà xuất Lao động, 2003 Nguyễn Cảnh Bình, Hiến pháp Mỹ làm nào, nhà xuất Tri thức, 2009 made out” of Nguyen Canh Binh (2009) is the most remarkable one This book does intensive research on the United States history and government, with the focus on Convention Congress6 And through the Convention Congress with many heated debates between fifty five delegates, who represented a wide range of interests, backgrounds, and stations in life, the Constitution of the United States was given a birth7 Additionally, this book also gives readers a general knowledge to understand why the Constitution gave a prominence to a compromise and social contract However, by the author‟s research, the principle of separation of powers in the United States legal system between federal government and state government still has not gotten much consideration Consequently, this dissertation will focus on researching the principle that mentioned above to acquire valuable experience of the United States to enrich an effectiveness of operation of Vietnamese government The structure of the dissertation This dissertation is divided into two main chapters: - Chapter 1: Fundamentals of the United States legal system - Chapter 2: The principle of limiting the legal power in the United States legal system Convention Congress was organized on Friday, May 25, 1787 in Pennsylvania, which originally designed to provide a framework for governing million people in thirteen very different states along America‟s Atlantic coast Richard C Schroeder, Outline of United States Government, Office of International Information Programs, U.S Department of State, 2000, p Richard C Schroeder, Outline of United States Government, Office of International Information Programs, U.S Department of State, 2000, p 10 such as regulations of enterprise law, goods purchase contract, personal property purchase and lease, bond, payment bill, check, and securities types134 If we say unifying American law is effort of only federal authority, it is not accurate State authority plays a key role when voluntarily applying the unified law samples If the federation issues law samples but states not apply, it will not bring any results since these codes not have compulsory effect Moreover, state contribution is not confined to passing law samples but legislative state agencies and state court have to more important things State legislative agency when drafting the law documents has to consider so that its legal documents are not much different with others, except some due to specific situations of each state As for state courts, when making decision, they have to quote properly other states laws and its persuasion value of this quotation depends on which court made that decision (court‟s prestige) State courts this job voluntarily because they are not to comply with other states‟ judicial precedents135 The purpose of this quotation once again aims at the common benefits of unifying the laws, helping their own state citizens in specific and America in general to be easier when joining social relations136 One more important factor helping state law is sustainability is the thinking of American lawyers137 They always agree that there is difference among state laws in terms of common principles but they strongly oppose that the common law can be explained differently in different states because this 134 Michael Bogdan, Luật so sánh, nhà xuất Kluwer Law Taxation, 2002, p 116 Réne David, Những hệ thống pháp luật giới đương đại, nhà xuất TP.HCM, 2003, p 310 136 Réne David, Những hệ thống pháp luật giới đương đại, nhà xuất TP.HCM, 2003, p 311 137 Réne David, Những hệ thống pháp luật giới đương đại, nhà xuất TP.HCM, 2003, p 311 135 67 goes against the justice and equality – one principle that all courts have to comply They hold that constructing the consistence in law is basic background and each state authority should only give out its policies and regulations based on that complete and thorough thinking American lawyers always limit single study of laws in each state and they tend to use the term “American law” even when they mention legal aspects which appear in one specific state In many situations, when one state lacks adjusting legal document or has not had approriate judicial precedent to be legal basis for any dispute, American lawyers often quote judicial precedent in other states which have suitable relations Regarding thinking of American lawyers, how to successfully deal with any dispute is the first priority, not highly value the role of each state‟s self-control In other situations, during study, if they find too much different decisions about one matter, lawyers often adopt the most proper and believe that other solutions cannot exist long, even when state decides.138 Once a state judge (who makes decision) finds that decision not approriate, they will not pay attention and make another decision In rethinking of American lawyers, it is impossible to have two different decisions towards a problem and this also reasons why such a large competence in legislative competence easily leads to the confusion in American law system (due to differences in fifty different states) but the American has gradually been more similar thanks to thinking of lawyers 139 Though federal law has above-mentioned meaning, in everyday life, state law is more important, not only to people but also to American lawyers 138 Though America, in principle, has law system, due to stare decision in America is flexibly applied, the judicial precedent is one-way effective, the courts are not bound with their own decisions 139 Réne David, Những hệ thống pháp luật giới đương đại, nhà xuất TP.HCM, 2003, p 310 68 In modern life nowadays, no one can live without relations with other individuals in society In a similar way to the United States, no single state can exist and develop sustainably without other states‟ cooperation The globalization economy has made each American states be aware of its independence and reducing localism towards other states140 Judges when making decisions often pay attention to similar sentences in other states in order not to create much difference among states and make it more convenient for local people when they move to live in another state Lawyers when studying American law cannot only study federal law or state law but they have to combine with other states laws That thinking comes from each the American‟s desire of convenient environment for life and economy development, contributing to the prosperity of country – one of purposes in Constitution which has existed for over two hundred years and will continue accompany with American in its history path141 2.2.4 Experience lessons for Vietnam from studying principles of legal competence limitation in the United States legal system After studying about the United States legal system in general and its principles in legal competence limitations in specific, the author would like to raise some experience lessons for Vietnam in its improvement of legislative socialist country, based on national capacity to develop country economy and cultural aspects such as education, social life, enrich country and its citizens as well as fair, democratic and civilized society 140 Fallon, Richard H., Hart, Henry Melvin, and Wechsler, Herbert, Hart and Wechsler’s the Federal Courts and the Federal System, 5th ed., New York, NY: Foundation Press, 2003, p 45 141 Réne David, Những hệ thống pháp luật giới đương đại, nhà xuất TP.HCM, 2003, p 309 69 Due to the difference in state regime and fundamental thinking in constructing authority, the study of principles in legal competence limitations in the United States legal system cannot be applied rigidly in state powers of Vietnam America is a United States with power decentralization based on three power separation theory and the balance principle This is completely different from Vietnam, a socialist country which belongs to people, by people and for people142, with power centralized from top to down and with its assigned functions: legislative, executive and judicial laws – a basic characteristic of Vietnam143 However, by carrying out this research, the author comes up with a new idea about applying principles in legal competence limitation in assigning and dividing among legislation, execution and justice in the United States legal system With the storm-like development of technology and creativity, new relations are constantly opening to replace and supplement into old social relations This phenomenon enriches aspects of life and brings challenges to regulating society legally Legislation and execution are two in three power functions of state which have much closer relationship than the rest – justice Legislation has function of issuing legal documents and regulating existing social relations in life Execution has function of applying those regulations and laws in paper to reality of people As for scholars, they believe that execution is the center of state machine, assisting for two other branches Without execution, legislation and justice cannot operate However, the relations between legislation and execution are not well-cut to lead to an overlap in authority and duties Vietnam needs to identify comprehension of 142 143 Article 2, the Constitution of Socialist Republic of Vietnam Article 2, the Constitution of Socialist Republic of Vietnam 70 each power branch, leading to dividing clearly the boundary and then specializing the man power and capacity to take up those positions In Vietnam, that is the allocation and cooperation based on scientific power organization to avoid overlap, similarity and conflicts in performing legislative and executive powers towards specific functions and responsibilities of each body, ensuring operation harmony and consistence of the whole country machine in its performing the power given by people to meet the demands of constructing social jurisdiction country of people, by people and for people – a mission mentioned in the 7th, 8th and 9th National Delegate Conference Documents The application of nuclear thinking of decentralizing state power in organizing and constructing Vietnam in a democratic, advanced, scientific and humane way is indispensable This is clearly expressed in the 9th National Delegate Conference: “Our country is the main tool to perform possession rights of people and the juridical State of people, by people and for people State rights are unified, assigned and cooperated by state agencies in order to perform legislation, execution and justice” 2.3 Conclusions The principle of separation of powers in the United States legal system is the significant principle for setting an effectively operating structure of the national government within this complex framework of competing political and social demands and expectations between states and federal government As a federal system of government, the United States has several layers of government ranging from the federal government at the national level, to state and local governments But, in 71 the scope of this dissertation, the author mentions the principle of separation of powers in the United States legal system only two of these layers, the federal and state, which are addressed in the Constitution of the United States This principle has divided the United States powers into power of state government and power of federal government As sovereign entities within the framework of the United States federal system, each state has its own constitution, elected officials, and governmental organization144 State have the power to make and enforce laws, levy taxes, and conduct their affairs largely free from intervention from the federal government and other states The federal government, however, is limited to the powers and responsibilities specifically granted to it by the United States Constitution But over time, the Constitution has been interpreted and amended to adapt to changing circumstances, and the powers exercised by the federal government have changed with it145 144 Fallon, Richard H., Hart, Henry Melvin, and Wechsler, Herbert, Hart and Wechsler’s the Federal Courts and the Federal System, 5th ed., New York, NY: Foundation Press, 2003, p.62 145 Samuel Eliot Morison, Henry Steele Commager and William E Leuchtenburg, The Growth of the American Republic, pp.198, 7th edition, New York: Oxford University Press, 1980 72 AFTERWORD The United States is a constitutional federal republic form and has been a leading economic, political, and cultural force for over two hundred years in the world146 There are many explanations for the superior power of the United States But, there will be no correct explanation if we not mention the framework of the United States government and legal system American people are proud of their Constitution and the government because they believe that they have applied successfully the essential invention of mankind in matters of social organization They also think that the federal system that has been created in the Convention Congress and acknowledged in the Constitution of the United States in 1787 gave the whole world a new awareness about the system of government, beginning a remarkable experiment in liberty and democracy The United States framework of government is a broadly political ground for many countries research and study In the context the United States has normalized diplomatic relations with the Socialist Republic of Vietnam147, along with that Vietnam is the 150th member of the World Trade Organization148, for 146 Central Intelligence Agency, The World Factbook, ed 2010 (area given in square kilometers) Embassy of the United States, United States – Vietnam relations: 15th Anniversary, vietnam.usembassy.gov/15th-anniversary.html 147 73 Vietnamese organizations and individuals, learning about country, people, society and institutions of the United States must be considered fundamental and thorough An insight, a right understanding about each other will keep a role as a bridge between two countries to build an even more enduring, comprehensive partnership in support of the long-term goals of both countries 148 The General Council approved Viet Nam's accession package on November 2006 Viet Nam became the WTO's 150th member on 11 January 2007, available at www.wto.org/english/thewto_e/acc_e/a1_vietnam_e.htm 74 BIBLIOGRAPHY I LEGAL INSTRUMENTS The Constitution of the United States in 1787 (with 27 amendments) The Constitution of Socialist Republic of Vietnam in 1992 (amended in 2001) II BOOKS In Vietnamese Alan B Morrison (chủ biên), Những vấn đề luật pháp Mỹ, nhà xuất Chính trị quốc gia, 2007 PGS TS Phạm Duy Nghĩa, Tìm hiểu pháp luật Hoa Kỳ điều kiện Việt Nam hội nhập kinh tế khu vực giới, nhà xuất Chính trị quốc gia, 2001 Phạm Minh, Những điều cần biết pháp luật Hoa Kỳ, nhà xuất Lao Động, 2003 Réne David, Những hệ thống pháp luật giới đương đại, nhà xuất TP.HCM, 2003 Michael Bogdan, Luật so sánh, nhà xuất Kluwer Law Taxation, 2002 Michel Fromont, Các 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Information Programs, Outline of the United States legal system, U.S Department of State, 2001 Chemerinsky, Erwin, Federal Jurisdiction, 4th ed., New York, NY: Aspen Publishers, 2003 Day, The National Conference of Commissioners on Uniform State Laws, 1955 D Flaherty, Essays in the History of Early American Law, ed 1969, Lanham, Maryland: Rowman and Littlefield 10.Douglas K Stevenson, American Life and Institutions, Bureau of Educational and Cultural Affairs, United States Department of State, Washington District Columbia 20547 76 11.E Allan Farnsworth, Introduction to The Legal System of The United States, Oceana Publications, Inc., 1994 12.E Jaynes, The Selection and Tenure of Judges 96, 1944 13.Edward L Ayers, In the Presence of Mine Enemies: War in the Heart of America, 1859 – 1863, W.W Norton and Company, 2004, p.65 14.Fallon, Richard H., Hart, Henry Melvin, and Wechsler, Herbert, Hart and Wechsler’s the Federal Courts and the Federal System, 5th ed., New York, NY: Foundation 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Readings and Cases, 13th ed., New York, New York: Longman, 1999 III CASE STUDY (in English) Heydon‟s Case, 76 Eng Rep 637; Co 7, 1584 Omychund v Barker, 26 Eng Rep 15, 24; A and K 22, 23, 1744 78 McAlister (Donoghue) v Stevenson, A.C 562 (House of Lords: Scotland), 1932 Erie Railroad Co v Tompkins, 304 U.S 64, 1938 Klaxon Co v Stentor Electric Manufacturing, Inc., 313 U.S 487, 1941 Wickard, Secretary of Agriculture v Filburn, 317 U.S 111, 63 S.Ct 82, 1942 The United States v Morton Inc., 338 U.S 632, 1950 Katzenbach v McClung, and Heart of Atlanta Motel, Inc v the United States, 379 U.S 241, 85 S.Ct 348, 1964 Russell v the United States, 471 U.S 858, 105 S.Ct 2455, 1985 10.The United States v Lopez, 115 S.Ct 1624, 1985 11.Cipollone v Ligget Group, Inc., 505 U.S 504, 112 S Ct 2608, 1992 IV WEBSITES In Vietnamese Quốc hội Việt Nam, www.na.gov.vn Cổng Thơng tin Điện tử Chính phủ, www.chinhphu.vn Tòa án Nhân dân Tối cao, www.toaan.gov.vn/portal/page/tandtc In English Federal government The 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viro_law/publication/usdoc.cfm?varlan=english&topic=1 27.JURIST: The Legal Education Network, http://www.jurist.law.pitt.edu/ 28.Legal Encyclopedia: http://www.nolo.com/lawcenter/ency/index.cfm 29.The Supreme Court of the United States, http://www.supremecourtus.gov 30.Understanding the Federal Courts, http://www uscourts.gov/understand02/ 81 ... a nature of the principle of separation of powers in the legal system of the United States through the historical context of the foundation of the United States and the legal system The formation... of State, 2000, p 10 THE PRINCIPLE OF SEPARATION OF POWERS IN THE UNITED STATES LEGAL SYSTEM CHAPTER 1: FUNDAMENTALS OF THE UNITED STATES LEGAL SYSTEM 1.1 The founding history of the United States. .. characteristic of the United States legal system to understand the reasons why the United States has the principle of separation of powers The principle of separation of powers, which has been written in the