 Welcome to Law and Government, a survey of the knowledge and principles of U.S. law. This presentation is designed to empower teenage students as they become citizens of tomorrow. My name is Jesse Brogan, and I am a performance engineer who happens to have a law degree. The purpose of this course is to prepare you for effective citizenship, and the lessons provided are designed to give you information and perspective to understand the legal foundations that will apply to you and your classmates, your families, neighbors, and society. Like most subjects, law involves a large number of sources and serves a multitude of purposes. But our first task is to separate this survey course from the education that some of you are likely to receive later in law school, and that separation is by purpose. The purpose of this course is to provide a citizen foundation for understanding the common law of the United States. The law school purpose is to prepare legal advocates. Legal advocates are the engineers of the legal profession. Their expertise is designed to find practical solutions to the real problems that people have in dealing with our laws and legal institutions. They apply intimate knowledge of modern legal processes. The purpose of law school is not development of citizens, but the development of legal practitioners, those who can work in our current legal environment to resolve the challenges people face in dealing with the law. Law schools are a success when their graduates become practicing attorneys. It is when their graduates are paid for their expertise and knowledge of current law and procedure. It is an economic purpose that supports the continuation of the schools as institutions that deliver professional value to their students. There is some truth to the statement that students go to law school to have their tickets punched, to learn a profession that is so valued by others that they can earn a fairly good living by its practice. The different purpose of this course is focused on the needs of teenagers, the need to grow and mature into effective, knowledgeable citizens. This support for taking effective part in running our nation and for dealing legally with others. This is intentionally presented to support a student's advancement from being a subject of education provided by others into becoming an effective and independent adult citizen. These lessons may also be useful as a review for adults or as an introduction to any adults who find themselves with insufficient foundation to be legally effective. The focus in these lectures is very different than might be found in graduate level law school. It is knowledge of law itself and the interaction between law and civilization with specific focus on understanding and appreciating the laws that define our nation and its legal systems. Why do we have laws? The question may be simple but the answer is not. It starts with a question of why parents have rules that children are expected to honor. Six-year-old Terry, in accord with a slapstick comedy from an old movie, puts mashed potatoes on a spoon and snaps it forward, throwing the food on Sister Betty's blouse. Rising up, his father sends him immediately to his bedroom telling him, stay there until I call you back. Terry is not allowed to eat with the family that day and stays hungry until long after others have left the table. His food when he gets there is cold. The family is a mini-society and parents regulate it for the benefit of all family members. Terry is not allowed to enjoy the society of others at the table when his action prevents those others from enjoying their meal. Terry did not even consider ruining the meal for others but tried to amuse them. It was a mistake. Terry had to learn not to take such actions in the future that he was to consider how others received what he chose to do. As are used to regulate our behavior so that we can come together to the benefit of everyone, Terry will learn and find more acceptable ways to amuse and take part. As for perspective, we address the coming of a baby into a family. We might well ask why the parents are the ones who decide what a baby is to eat, where the baby is to sleep and where the baby is to go. The answer is obvious, as the baby is totally dependent for its life and behavior upon its parents. A newborn is not able to decide effectively, unable to determine what is needed to survive and grow. A newborn is, most assuredly, dependent upon the parents to continue. The role of the parents of the newborn is like to the divine, to making whatever decisions seem best to the parent with the welfare of the infant entrusted to the parent as a natural part of human life. This defines the first role of parent as the absolute rulers over their infant. A new set of challenges arises as the infant grows into a child with awareness of his or her surroundings. Some knowledge of personal wants and needs. The child soon recognizes potentials for satisfaction. The child starts to demand attention when it is withheld. They are likely to push things away they do not want and go after what they do. Even young children learn increasingly to be mobile and to respond to language. Soon they start to speak and are rewarded with the attention of parents because they have learned something. Even young children learn to encode their own wants and needs in words. And all this time the parents are still charged with their welfare. Parents are still responsible for the life and the behavior of the infant and young child. Parents continues even where the child engages in early efforts to harness the family environment to meet some of his or her needs and wants. But infants and young children are generally ignorant lacking knowledge even of what will best satisfy their needs. The parents remain in the function of rule continuing to direct the actions of a young child even as they try to teach their charges to start caring for themselves. For a civilization perspective the young child like the newborn is a slave to his or her parents, doing what parents decide they are to do and receiving what they need to continue from their parents. It is also first and foremost source of rule. Parenting starts with one human taking charge of another for a family purpose. In the family this is considered not only necessary but right. Parents and young children are approached as a family unit where all are focused on the welfare of the children. The parents make the rules but recognize that the welfare of the child is a parental responsibility. In terms of authority and responsibility all authority rests in the parents and civilization will not intrude upon this. The law backs away unless the responsibility has been apparently abandoned putting the child at risk. It is not until the child becomes somewhat proficient in taking care of his or her general needs that this changes. It is then, usually around the age of five, that the child can be set into an educational environment. The educators who are rulers in that environment are the ones who decide what the new student is and is not to do. The students are expected to have some basic understanding of how to care for personal needs and are given rules to order their behavior and dealing with other students and educators. The teachers become the rulers of a classroom and are generally granted in local parental authority a legal term for in place of a parent. As students grow and mature they continue to learn how best to see to their own purposes. Commonly in the 12 or 13 year range their relationship with others and educators begins to change. The human child becomes a potential decision maker. They are expected to start making some of their own decisions on what they do in relation to others. It is in teenage years that the slavery relationship of ruled of adults is softened. The authority of both parents and educators is reduced as a child grows toward becoming an independent adult. The teenager grows to require honoring of his or her independence and such choices as parents and educators will allow and support. And now we need to expand our vision, bringing what we see in the family to focus on the extended family, the tribe. The tribe is a group of families that live in close proximity. They are able to do things together, getting the effective cooperative and coordinated efforts for the benefit of all members of the tribe. There may be a tribal leader, a chief spokesman for the tribe, but the authority is almost always in a council of family members. The families are generally not subject to the authority of the leader, but accept coordination for the obvious benefits of families in the tribe. If a family no longer feels welcome, they can pack up and leave, accepting the cost of change in order to gain benefits from outside the tribal setting. The tribal council keeps the peace and can generally make such rules as it wishes to make. In wider society beyond the tribe, people face other challenges. History indicates where we have tried other solutions to corporate leadership. The concentration of authority in a leader is seen in early efforts, where the failure to coordinate can lead to great harm. It is then that coercion becomes reasonable as a basis for enforcing leadership. Perhaps the earliest such authority is granted to military leaders and ships captains. The success of military campaigns requires soldiers must trust one another, that their behavior be supportive. Ships at sea survive because the crew and officers work together to make things happen. In both these cases, the environment demands coordination of effort, and leaders are granted authority to achieve coordination, even over the objection of individuals who might deny that authority. Enforcement is supported, not because the authority is right and proper, but as a necessity for survival. When we come to territory-driven rules, we have a different concept of public authority. It is that tricky subject of sovereignty that rests in some leader or family. It is authority to take action for the benefit of rule. It is authority recognized with hope that it will support the coordination and effectiveness of those who are ruled. Territorial rule provides an early form of what we generally call law, of established rules of conduct and requirements that arise from sovereign authority. As the students of law, the focus must be on the right to rule over other people. The general assumption is benevolence, where the ruler will care for those he rules as if they were extended family. The simple reality is also family, that the ruler has a family that is always to be served first, whose needs and wants are to be served before those who are ruled. That is the human flaw and the concept of benevolent rule. All people have their own priorities, and putting one decision maker in rule over another comes with this natural challenge. We also have early experiences with small democracies, where people come to agreement as a basis for local government. These had some successes, but were temporary, ceasing to exist after a time. The probable cause of their ultimate failure was difficulty in getting people to agree to what was necessary and convenient. Outside of military command and ship officers, there was little expert in assuring a useful agreement among a populace. Even if the intent was self-government, there was little knowledge available to a democratic populace. This was most likely the challenge to continuation. All early governance was apparently structured around territory or land. By far the most successful and stable form of government was feudal. With a feud being a grant of authority over a territory, feudal systems of government lasted for over a thousand years, much longer than even a national republic. The simplest form of feudal governance was example by a city-state. This was a single feud or smaller kingdom ruled over by a feudal owner-family that provided governance to the territory under rule. The family leader was the royal leader, with children raised to be rulers in turn. In more advanced form, feuds were given to subordinate rulers who then owed allegiance to the granting authority of the sovereign ruler. Each feudal subordinate was to operate their territory as part of a larger kingdom and to get their family living from that effort. Management authority was granted to these subordinates and they took responsibility for maintaining the king's rule in their territories and otherwise supporting central rule. The king became the source of law with application through landed subordinates. The entire system of governance worked on the basis of royal privilege, where the privilege of being landed subordinates was supported by the loyalty to the king. The subordinate leader families also tended to inherit their local rule and accordingly brought up their children to be subordinate rulers. When it worked, their presence were highly valued by their landed lords because the efforts of these peasants were the lords' source of family income. Having the privilege of land ownership only earned wealth if the people on that land were productive. The feudal lord who tried to abuse the peasants would soon have no peasants. They would abandon his lands to serve other feudal lords, leaving the abusive leader with shrinking income to meet royal demands. A good peasant was highly valued by a landed leader. A good landed leader was highly valued by the royal ruler and the system was accordingly quite stable. The king provided the law to keep the subordinate landed lords loyal and affected. The landed subordinates ran their feuds with loyalty to the king, making use of peasants to do the work of harvesting benefit from their feudal lands. If a landed subordinate got out of line showing disloyalty or losing the support of peasants so that the land suffered neglect or misuse, the king could replace that subordinate with someone who would be more effective in assuring the welfare of the feud. The deeper challenge was the competence of the king. There was no way to recover from a bad king, one whose central rule interfered with the feudal grants of authority or put such stresses on the peasants as to interfere with the operation of the feuds. The uprising of feudal peasants to depose a bad king or ruler is largely myth, something that might happen in a city state, but not in an established feudal system. The peasants would always be valued because they were the source of wealth for all those privileged leaders. The feudal chiefs were always sensitive to the wants and needs of those who worked their land and who supported their privileged status. In England, we have an example of an effective deposing of a feudal king, but it was not by the people. It was by the landed barons whose privilege was being challenged by a bad king. If you wish further information, you may research the signing of the Magna Carta in the year 1215. This is long before even the European discovery of the Americas. In our US history, many have addressed the revolution that caused the founding of our nation in terms of rejection of feudal rule. This is largely a myth, as there were no feuds in the American colonies. Feudalism only worked where the feudal subordinate had to live on the feud, with the welfare of the feudal family and royal privilege tied to assuring the productive efforts of the people on the land. There were no landed barons in the American colonies, none who had to live off the productivity of those who worked the land. There were no feudal chiefs who owed their privileged family position to the king and who would assure their own wealth and privilege through productivity for those who worked their granted feudal lands. There was rather an attempt to harvest wealth from the colonies as a business venture. In witness, the laws of England were largely continued in the American colonies, even after the Revolution forced separation. This law, except for royalty and feudal privilege, became the laws of the newly forming United States. From a human standpoint, tribal and feudal governance serve the needs of the people and were accordingly quite stable. The general reason for their abandonment has not been for the welfare of the people, but because the stability was so great that they were unable to adapt to the long-term needs for change. Much of the law of the United States come from the common law of England. It is generally addressed as the common law because its purpose has always been support for social and business interaction of common people. It was a legal system for the peasants. One primary distinction from other legal systems is that the US common law formally recognizes the inherent value in the common person. In feudal times, this was a value in the peasants and tradesmen whose product of activity was a source of wealth of privileged feudal lords. In more modern times, it is value in citizens independent of supporting any ruling class. For more definitive answer to the source of common law in England, we have to go all the way back to the purpose for feudal rule. The purpose was the royal family, the ruler's purpose in caring for his family, seeing that the family wealth and privilege and preserving these for future generations. The common law was not the king's law. It was not created by edicts and decrees signed by the king. They were much simpler built on supporting the peasants as the royal family source of national wealth and privilege, where the owners of land were the ultimate privilege. Harvesting that privilege required populace to work the land. It demanded a common people who would honor the ownership and privilege attended upon the people getting their livelihood from using the king's property. The common law was the people's law, a way to keep people working effectively with each other and ordering their lives so that they could continue serving the royal purpose and serving the king and family. It was honored by the king and family because it preserved and protected the interests of the king and the populace. The common law supported the productive efforts of those who lived on the feuds. The common law was how the people regulated their society, how they assured their own welfare and common interaction with others like themselves. The ultimate source of the common law as a national institution is the king supporting this law because it preserved the people who were the real source for the feudal king's wealth and privilege. A government of productive people has a tax base, a source of income for the privileged land owners. A government that has no public to govern would have no income, no wealth, no privilege. This legal foundation was formalized in the United States. This is why government is so focused on taking care of people and why common law protects the health, peace and prosperity of the people. Bringing the English version of the common law into the basis for a newly forming United States faced significant challenges. The greatest challenge was sovereignty in the people, the ill-defined effect of sovereignty in the person when it came to laws of contract and agency. Both of these impacted on the legitimacy of the authorities and processes used to establish this new government under a contractual written agreement. The people could establish governing bodies through compact. That was well settled. They could authorize government but only subordinate to the authority of higher government entities. One whose recognition was essential to any legal compulsion for application. The same was the source for colonial legislators. While they were recognized bodies of governance, they were also considered legally subordinate to the governors who had authority from the crown. The London government was months away and the impact of British rule was not immediate. There was the challenge of practicality and relying upon those overseas to enforce day-to-day applications. The colonial governments other than the governors themselves were people by those popularly chosen. This is our source for a concept of rule by consent of the governed. It was a concept that had already had some recognition in London with its House of Commons being considered an essential for a true government. Such things were largely trashed by the revolution and had to be restored locally by the people in the colonies following the revolution. The lack of sovereignty in government left many matters to chance, including the overall authority of government to act on behalf of the people. With the constitutional agreement, we have the effective establishment of sovereignty in the common citizen. This was so newer concept that it had no specific applications. We had the principles of sovereignty but not as might support personal interactions. The only existing influence of sovereignty upon the common law was that the sovereign authority could modify English law almost at will. Sovereignty in the people was something very different. As long as citizens were dealing with citizens, the common law would continue as it had. When people dealt with governance, it reversed their roles or at least seemed to do so. The common law for the common citizen was suddenly elevated to be the source of sovereign law. It implemented the concept of consent of the governed in a new way and elevated it to previously unheard of status. The compact initiated by the constitutional agreement was to create the supreme law of the land but it still had to do it under the authority of an agreement in consent of the governed or it had no legitimate basis. Our first subject for study is the foundation for our US legal system. It is contained in an incredible document we often call the Constitution. The name does not say at all. The document does set up and empower a government by and under law but it is not some governing document that sets the authorities and limitations of those who govern. Empowerment and limitation of leaders is not even within the larger purpose of this remarkable legal instrument. You will find that the Constitution documents an agreement among we the people with the states participating as their representatives as how they intend to govern themselves. The empowerment and limitations placed on leaders is a secondary matter to the larger purpose of self-government. This is most remarkably noted by discontinuities. Prior to the signing of this document there were no states in the Americas. Only colonial governments stripped of their authority through rejecting the authority under which they had become colonies. There were no people of the United States. Only former British citizens who had been set adrift by revolution. The idea that this was just people arranging for a new sovereign authority to rule over them would be wholly inaccurate. This was something utterly new. There was no traditional authority in the common people to establish new governments nor for a citizen to empower someone else to be an authority over their neighbors. The story of our foundation just starts with the success of the colonial army in expelling the authority of Britain by armed conflict disrupting our only legal source of legitimacy. Colonial development started by promoting sovereign authority assuming in any of the existing elements of governance the colonial bodies. These colonial governments had confederated forming a sort of central government that was also not considered any sort of sovereign authority. But of course, colonial governing bodies had no recognized right to rule except within the strictures of British government. The people did not consider colonial governments as centers of sovereignty and ended up challenging the right of these bodies to tax them. It was in this environment that the Constitutional Convention was put in place by the various colonies to derive a government that would be able to function. It had to have such legitimacy that it could be accepted by the people as a government with authority. And so this convention met with the purpose of establishing a government to such an effect that it could command support of both the people in the former colonies and those who were part of the colonial governments then providing public services. It was in this environment that we have the bold statement that begins our founding document as we, the people of the United States. This is an incredible claim that the people are forming their own government and that the new government is tied to the purposes set forth in the written preamble to the larger document. The common address of this document is that it empowers and limits a sovereign government ignoring the preamble as some sort of wish list that the framers appended to it as a way to get the people to accept its sovereignty. I tell you now that the stated purpose for an agreement among the people is not a wish list as we'll be more thoroughly examined in the subject of contract law. It is the heart of the agreement. The rest of the document, the articles are only there to implement the purposes of the people who enter into the larger agreement. In the case of our government, the preamble provides the public purpose for this new government and the purpose that continues to legitimatize its existence. Failure to stick to purpose goes to the heart of the agreement and would delegitimize this government. We commonly find the document titled the Constitution or the Constitution of the United States. While this agreement can serve the function of defining government in accord with the details of the articles, that is not a basis for agreement. It is an agreement by and among the people of the states as representatives of the people concerning the establishment and ordination of a legal government. The people are the source of government authority, not the enumerated powers and limits written into the agreement. It has sovereignty subordinate to the sovereignty of the people and can only legitimately do what the people can legitimately do. Wherever the people lack authority to do something, the government is also without authority to act. Wherever the people have recognized authority as individuals, there is no power in government to disrupt personal authority. The clearest of all such situations is the authority to form the union, which is the United States. This is under the authority of individuals who are we the people in whose name the government is authorized to exist. Self-governance is the sacred center of the citizenship within the United States. The government created under the terms of this agreement is not empowered to redefine itself, nor is it authorized to establish and pursue new purposes.