By Holly White
October 08, 2019
Doing History 4 Legal Lexicon; or A Useful List of Terms You Might Not Know
Ben Franklin's WorldDoing History
10 min read
“Doing History 4 Legal Lexicon; or A Useful List of Terms You Might Not Know”
We are pleased to announce the release of “Doing History, Season 4: Understanding the Fourth Amendment.” Law is all around us. This 4-part Doing History series explains the early American origins and importance of the fourth amendment. Although it doesn’t always make headlines as often as some others, the fourth amendment to the United States Constitution undergirds foundational rights. We also use the example of the fourth amendment to explore the history of law as a field of study, how it differs from other historical subjects, and how lawyers and historians view and use legal history differently.
We know that legal terminology can be tricky, so we’ve got you covered with this handy blog post we’ve titled: “Doing History 4 Legal Lexicon; or A Useful List of Terms You Might Not Know.” Each week, we’ll add more terms from new episodes until the series ends.
Constitution: the document that defines the roles, powers, and different branches of the United States government. The United States Constitution is four pages long, was drafted during the summer of 1787, and signed on September 17, 1787. (Check out the National Archives website for a full transcription of the US Constitution: https://www.archives.gov/founding-docs/constitution)
Bill of Rights: the first ten amendments to the US Constitution meant to guarantee individual liberties and rights such as the freedoms of speech, assembly, and worship. The Bill of Rights was ratified in 1791. (Check out the National Archives website for a full transcription of the Bill of Rights: https://www.archives.gov/founding-docs/bill-of-rights-transcript)
Founding Documents: The Declaration of Independence, the Constitution, and the Bill of Rights are founding documents because they serve as the backbone of the American government. The Declaration of Independence created the independent nation of the United States. The Constitution established the United States’ government. And the Bill of Rights imposes limits on the power that the federal government can exercise over its people.
Living Documents: As we heard Professor Mary Sarah Bilder explain in Episode 259: The Bill of Rights & How Legal Historians Work, a living document has the ability to adapt over time. It can be invoked by citizens today, can be amended, and is continuously interpreted by congress and the courts.
Legal History: a specialized field of historical study and research. According to Professor Mary Sarah Bilder, the history of law could be quite narrow and be focused on how a particular legal concept or law has evolved overtime. At the same time, legal history is also the study of how law represents power, authority, and governance. Professor Bilder argues that because law is so foundational to how the American government operates as well as how Americans understand ourselves and our culture, in many ways the history of the law is the history of our country.
Constitutional Law: the body of law that evolves from a constitution, setting out the fundamental principles according to which a state is governed and defining the relationship between the various branches of government within the state. In America, Constitutional Law refers to the rules that are set up in the US Constitution written in 1787 and the amendments that have changed that constitution. It is important to note that each individual state has its own constitution as well but because of the “Supremacy Clause”, the US Constitution is considered supreme or at the top of the hierarchy over state constitutions.
Statute Law: the body of principles and rules of law that are written down. American statute law is enacted by Congress and needs to be authorized by the Constitution. (This happens at both the federal and state level).
Common Law: is a form of law that is derived from custom and judicial precedent rather than statutes.
Supreme Court: the highest federal court in the US, consisting of nine justices and taking judicial precedence over all other courts in the nation. As legal scholar Mary Sarah Bilder points out in Episode 259, the only thing the US Constitution tells us about the Supreme Court is that there should be one– the founders provided no information about how many justices should sit on the Court and how the Court should operate. (For more information on the Supreme Court, check out this bonus audio from Professor Mary Sarah Bilder.)
Originalism/Classical Constitutionalism: the judicial interpretation of the constitution which aims to follow closely the original intentions of those who drafted it. Legal scholar Laura Donohue notes that “originalism has become an important mode of constitutional interpretation. It has been the deciding factor in Supreme Court decisions. It elucidates the meaning of the Constitution, and, like the Founding, reflects all sides of the political spectrum.” (In addition to Professor Mary Sarah Bilder’s explanation of Originalism and its history in Episode 259: The Bill of Rights & How Legal Historians Work, here is also an article that explains the evolving history of the Originalist interpretation by historian Jonathan Gienapp: http://www.processhistory.org/originalism-history/)
Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Writs of Assistance: were crown orders that authorized customs officials to conduct general (non-specific) searches of premises for contraband. As Professor Thomas K. Clancy explains in Episode 261, Writs of Assistance were used by British customs officials in the eighteenth century in an attempt to combat smuggling in the colonies. Writs of Assistance allowed customs officials to go anywhere they wanted, at anytime they wanted, for any reason at all with customs officials having no need to provide justification for why they wanted to search where they were searching. The British Crown’s increasing attempts to try and exercise Writs of Assistance in the American Colonies after the French and Indian War were a contributing factor in the American Revolution. (John Adams famously pointed to the Writs of Assistance controversies as the “Child of Independence” in his 1817 letter to William Tudor. See the letter here: https://founders.archives.gov/documents/Adams/99-02-02-6735)
General Warrant: A general warrant refers to a warrant providing a government officer with broad discretion or authority to search and seize unspecified places or persons. A general warrant lacks a sufficiently particularized description of the person or thing to be seized or the place to be searched.
Warrant Clause: The second clause of the Fourth Amendment that specifies a warrant must be “under oath or affirmation, that the places to be searched and the person and things to be seized must be particularly described, and that the intrusion be supported by probable cause.” (Interestingly, as Professor Thomas K. Clancy explains in Episode 261, although James Madison ultimately wrote the clause it was adapted from the Massachusetts’ Declaration of Rights written by John Adams who was influenced by James Otis’ arguments against Writs of Assistance.)