factors in the development of the law. Does the historical system of slavery have any correlation to the current situation of undocumented aliens? Did slaves actually have a form of social protection in the laws that governed them as opposed to the predation of some of the farming conglomerates with the undocumented Hispanic workers in the fields of the West and Southwest? By applying past lessons, we begin to look critically at the present and future to attempt to create a more just society.
As pointed out at the beginning of the chapter, American needs were the exact opposite of England. England had a strong labor force, but had little raw land. With the lack of labor, early Americans viewed the system of slavery as a substitute for importing labor. This is why the system of indentured servitude and slavery ultimately arose.
The Americas were an ideal location to develop agrarian based economies. However, labor was a constant problem because there were not enough settlers to provide the necessary labor. Second, the settlers that would have provided the labor would make the agricultural products more expensive to produce since they would have been paid. Therefore, indentured servitude and slavery were necessary substitutes for the newly landed property owners because labor costs were kept relatively low while allowing these early capitalists an ability to generate income.
Friedman spends a significant portion of this chapter on the practice of slavery in the United States because of the shameful nature of that policy. I would like to focus on another aspect of slavery that speaks more to the way we developed the system of laws in America. For those of you that are planning to enter government service, you will find that there is a great deal of sharing of information and knowledge between agencies and that is demonstrated in the way slavery developed.
Friedman notes that slavery was not a significant social institution in England. However, Spain and its Caribbean possessions had a strong need for labor in much the same way that the early colonies had the same needs. Therefore, the laws regulating slavery were in some cases modeled after the Spanish laws. As America grew, there were a number of changes to the American social system based on both Spanish and French law that was in place in the former colonies of each of these colonial powers.
As a current example of the continuing effect of Spanish law, California, Washington, Arizona, Texas, and Florida have components of the community property distribution of assets at divorce. Most of the other states have a different system which more readily accepts the idea of separate property in a marital community.
Another current example is the state of Louisiana which still recognizes a code based system derived from French rule and some Spanish codes. This is a hold over from its period as a French colony prior to the Louisiana purchase.
A More Current View of Labor and the Law
If we change the facts slightly, we can see how the ebb and flow of labor needs affect every time period up to the present day. Look to the early part of the 20th century and we can see how labor was a driving force in development of law and programs around the 1920s and 1930s with the movement of the “Okies” into California as described in Steinbeck’s novel Of Mice and Men and later with the Brasero movement and the development of labor standards and unionization under Caesar Chavez. In fact, you can look at every expansion westward or change in the national economic situation from the 17th century through the 20th century as helping mold law and society in America.
The New Deal program was developed out of a need to put people back to work during the Great Depression. Prior to the great depression, law began to change by providing increased protection for workers, implementation of child labor laws, and other moves designed to protect the interest of the workers by limiting the pool of labor. As the Great Depression began, there were larger pools of labor with people becoming unemployed which forced the government to attempt to put people back to work with programs like the Tennessee Valley Authority and a variety of public works projects to put jobs and money back into the economy.
Land and Property Rights
Wealth and the passage of wealth to members of a family is a common problem. Who has not heard of a will contest or known a family that has been torn apart by a property dispute at the passing of a relative.
This past weekend, I was watching a Chris Rock stand-up special and he was talking about the difference between wealth and just “being rich.” He said the difference was wealth could be protected while being “rich” could change by one bad roll of the dice during a drunken weekend. This is an interesting distinction because it is very true. Wealth is something that typically requires generations to build. Look at the Rockefellers, Carnegies, and Bill Gates as examples of wealth building families (yes, Gates is a single individual, but he bears mentioning). Each of these families focused on building wealth and then protecting that wealth. For example if Microsoft absolutely tanked and was liquidated, Bill Gates would still be very wealthy because he has taken steps to protect that wealth and prepare to pass it to his family.
On page 30, Friedman begins a discussion of the process of transmission of wealth from parent to child. This demonstrates the building of wealth in America. In Great Britain, the system of primogenitor (i.e. first born SON takes everything from the parents) was a typical method of passage. Thus the idea of “an heir plus a spare” developed where families sought to have at least two sons in case an accident claimed the eldest son. By engaging in primogenitor passage, that 1-2% of the population that owned most of the land would ensure that ownership would remain in a very few hands.
In America, it bears mentioning that there was so much perceived real property available that maintaining small ownership groups was unnecessary as it was in England. That is why the American system favored the passage of property in a more diffuse method. In addition, this partial take system allowed wealth to be vested in all the children so it was not as likely to be lost by the bad decisions of one child (the spendthrift concept).
Development of the American Governance Structure
The last three pages of the chapter roughly hit ideas which are inherent in the second part of our lecture today, development of a constitutional government. It is important for historical context to understand why the Articles of Confederation failed (weak central government and strong state governments) as opposed to our current federalist system.
Under the Constitution, the federal government has enumerated powers which constrain federal legislative powers (more on this next week in discussion of cases under Commerce Clause). States were given broad authority to legislate those items not reserved to Congress to legislate. When viewing Congressional legislation, always consider the following question: “What authority does Congress have to engage in this legislative action?” This is a guiding principle this week in your memorandum.
(Items below that are hyperlinks either link to PowerPoint presentations or websites)
I. Constitutional Law Light
A. Article I – Legislative Branch
1. Text of the Constitution
2. Enumerated Powers
3. Powers and Duties of the Legislative Branch
B. Article II – Executive Branch
1. Text of the Constitution
2. Roles and Duties of the Executive
a. Appointment Powers
b. Faithful Execution of Law
C. Article III – Judicial Branch
1. Access to Courts
2. Requirements for Access to Courts
3. Judicial Review
II. Separation of Powers
A. Interactions among the branches
B. Checks and Balances Among the Branches
III. Youngstown and the Joint Custody Analysis
A. Youngstown Facts and Explanation
B. Joint Custody
C. Morrison v. Olson
IV. Final Thoughts for the Week

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