This article is written by Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article talks about all the laws, legislation, regulatory bodies, Congressional committees, regulations, and state agencies dealing with regulating the oil and gas industry in the United States.

It has heen published by Rachit Garg.

Introduction

All of us use cooking gas in our homes. Our vehicles run on petroleum, diesel, or gas. We all need electricity every day of our lives. When the petrol prices sore high, it affects us all. The airplanes we board to travel to our homes in India, or Australia, use energy to fly. But why am I stating facts? This is because we use oil and gas in various forms in our everyday lives more than we care to think about it. So, we need to regulate the sector, no? That is exactly what the oil and gas laws have been doing in the United States of America. Many laws are enacted to regulate one of the fastest-growing industries in the world market. The industry comes with a share of risks involved as it includes activities like mining, digging, extracting, refining, etc., and is explosive in nature. Many of these byproducts are hazardous to the health of the workers engaged in these activities. Besides, it poses a brimming threat to the environment. Harmful substances, hazardous byproducts, explosions, etc., can significantly harm the environment and life. Thus, careful monitoring has to be conducted regularly. The prices of these products have to be stabilized federally. To take up all these responsibilities, the US government has set up standing committees, enacted laws, vested duties on regulatory bodies and state agencies, etc. In this article, we shall learn more about the sector and how it is regulated in the USA.

Oil and gas laws in the USA: an overview

Divided into three categories, upstream, midstream, and downstream, the oil and gas industry makes a huge contribution to the Gross Domestic Product (GDP) of the USA. Upstream is the process of finding out and digging the grounds to extract oil and natural gas. The storage, transportation, etc., are conducted midstream and the filtering, refining, producing finished products, and their supply, everything is covered downstream. Oil and gas are produced and supplied for uses in several forms like petrol, diesel, LPG, CNG, crude oils, lubricants, kerosene, jet fuel, asphalt, etc. Thus, the sector is regulated. The private player drilling companies take up the charge to perform these functions. While they do so, they must first enter into contracts with the US government to do so. The government regulates the sector with close scrutiny as it has potential threats and impacts on the environment. It is the duty of the government that the environment and atmosphere are not hampered during any stage of oil and gas processing. 

Additionally, the government has to protect the workers’ health and safety, and public safety, while saving non-renewable and natural resources and reducing wastage. Local governments regulate the oil and gas industry in their particular jurisdictions, and everything is regulated federally. The Federal government while monitoring the working of local governments in regulating the sector, performs greater functions like looking after environmental protection. The regulations and legislation enacted for the oil and gas industry are made by the federal executive in consonance with legislation like the Clean Air Act (1963), Clean Water Act (1972), National Environmental Policy Act (1970) and other environment-related legislation. 

33 out of the 50 states in the US that produce oil and gas regulate the upstream, midstream, and downstream in their respective jurisdictional lands. The coastline states also regulate from 3 to 9 nautical miles inshore. For federal regulation, the main regulating body is the Environment Protection Agency (EPA). The EPA looks into the oil and gas regulations and ensures that the regulations are made in consonance with environmental protection. It sets standards and norms that the state regulators must take as a model law and incorporate these standards in their procedures, regulations, and legislation.

The Bureau of Land Management (BLM) looks into the exploration and extraction activities onshore. It sets standards and rules for digging lands, leasing of lands, development, etc. There is a National Park Service established to regulate the drilling and production of oil and gas in areas that are covered under National Parks. All of these norms and standards are made in consonance with the National Environmental Policy Act of 1970. The NEPA sets standard assessments for environmental impact assessments to be followed and statements to be submitted. For regulating offshore exploration, the federal government has vested regulatory duties in the Bureau of Ocean Energy Management (BOEM). Offshore drilling and production are further regulated by the Bureau of Safety and Environmental Enforcement (BSEE). These regulations and regulators are mainly focused on upstream oil and gas laws. 

The federal laws also protect and regulate midstream oil and gas laws. The Department of Transportation (DOT) through its various regulatory bodies, regulates the filtering, refining, transportation, etc., of natural gas through pipelines. It also sets safety standards for workers and the general public. The Federal Energy Regulatory Commission (FERC) regulates oil pipeline transportation rules. The Federal Railroad Administration department of DOT looks into railroad safety in transportation. 

The government regulates the energy sector and sets restrictive regulations on the use of natural resources, renewable resources, and nonrenewable resources. Out of the 33 oil and gas producing states, 29 have energy portfolios that regulate the amount of energy to be used. The EPA also makes Renewable Fuels Programs to regulate and educate on the efficient use of natural resources.

Apart from regulating the exploration and supply of oil and natural gas, the government has also made efforts to regulate safety and standard working conditions for the workers in the mining, extraction, and other activities in the oil and gas industry. Severe health hazards and deaths were witnessed in oil and gas extraction operations. The major reasons for these hazards and deaths were during the transportation of the finished products due to vehicle accidents. Other than that, fatalities were observed due to exposure to harmful substances, fire explosions, exposure to chemicals, and other factory accidents. The Occupational Safety and Health Administration is the regulatory body that sets standards and norms for proper working conditions in order to ensure the safety of the workers. The Council for Oil and Gas Extraction of the National Institute for Occupational Safety and Health prepares a National Occupational Research Agenda and conducts research on standard health and safety norms with the help of experts, academicians, etc.

Ownership and jurisdiction

The ownership of oil and gas in the United States can be with the federal government, the local governments, as well as private individuals and corporations. The ground rule is that ownership of oil and gas in an area belongs to the owner of the land. Unless the land’s ownership is vested in someone else, specified by a decree, the ground rule applies. If it so happens that the ownership of the land is different from the ownership of the mineral estate, the person having ownership of the mineral estate will also have ownership rights over the oil and gas extractions in that estate. The owner of the mineral estate will also have a right to use the land surface to the extent necessary for the extraction of the oil or gas. Under certain circumstances, the federal government or the local governments may also become owners of the mineral estates. The coastal states own oil and gas up to 3 nautical miles and the decision-making rights in this jurisdiction. This is provided for under the Submerged Lands Act (2002). The exception to the 3 nautical mile rule has been applied to the west coast of Florida and Texas, which have ownership rights over oil and gas up to 10 nautical miles from shore. The federal government enjoys ownership rights up to 200 nautical miles from the shore, otherwise known as an Exclusive Economic Zone.

Leasing and licensing rights

Oil and gas can be extracted from an estate after obtaining a lease to do so. Even when the ownership belongs to someone else, another person can obtain a lease to extract and develop oil and gas from a particular estate. For lands that are federally owned, leases are obtained by way of auctions. The BLM conducts auctions for onshore estate leasing, whereas BOEM does it for offshore leasing. Lands that are owned by states are also leased to state agencies. Privately owned lands and estates are leased through personalized negotiations. Leases are entered into in the form of contracts that are valid for a particular period of time. Mining and extracting have to be done accordingly as per the terms of the contract, else the contract would be terminated and the lease would lapse. The individuals or government that lease an estate are entitled to a periodic royalty paid on such extractions. BLM and BOEM are empowered to lease lands by the Mineral Leasing Act of 1920 and the Mineral Leasing Act of Acquired Lands of 1947. These extractions are subject to federal taxes and customs duties. The taxes are levied as per the Internal Revenue Service and the US Customs Service of the Department of the Treasury manages the customs duties. Further, excise duties are levied by the Oil Spill Liability Trust Fund. The rights obtained from BLM and BOEM auction awards are transferable post permission from the respective authorities.

Pipelines

The Federal Energy Regulatory Commission (FERC) has the authority to regulate the establishment of pipelines, their operations, and usage. It does so while coordinating with the EPA and the DOT’s Office of Pipelines Safety (OPS). Coordinating with the EPA is essential to understanding and following the set standards of environmental protection while constructing and operating pipelines. Additionally, the FERC coordinates and prepares environmental reviews under the National Environmental Policy Act (1969), the Endangered Species Act (1973), the National Historic Preservation Act (1966), and the Magnuson-Stevens Act (1976).

Federal statutes

The oil and gas industry in the United States is managed and regulated by a number of federal statutes. Mentioned below is an insight into all those statutes to understand oil and gas regulations in the United States:

Interstate Commerce Act of 1887

The Interstate Commerce Act of 1887 federally regulated the railroads. The transportation of oil and gas through railroads is thus done while adhering to the provisions of these regulations. The Act of 1887 also formulated an Interstate Commerce Commission that monitors and scrutinizes all transportation made using railroads. The legislation brought a uniform regime, as opposed to the post-Civil War period during which the railroads were privately regulated. Carriages and shipments moving through the railroads are now regulated by this Act. The Act also regulates the related roads, bridges, etc., that are connected to the railroads. This Act made a uniform regime for duties and compensation paid and treated all forms of transportation alike. Therefore, a contractor or corporation that indulges in downstream transportation in oil and gas and thereby uses the railroads for such transportation has to pay compensation as per the rules established herein and also abide by other provisions of the Act. 

Mineral Leasing Act of 1920

The Mineral Leasing Act of 1920 regulates mineral leasing entirely. The Act provides for the disposition of minerals like coal, phosphate, sodium, potassium, oil and gas in the lands of the United States. Such dispositions are made to US citizens, associations, corporations, or municipalities. The leases and licenses obtained by individuals for mining in a mineral estate are also regulated under the provisions of this Act. Individuals or corporations can acquire leases from the owners of estates, like private individuals, or the government. They get the mining rights in those lands in exchange for a royalty fee paid periodically to the owner. This is regulated by the Mineral Leasing Act of 1920. It also regulates the manner of leasing, the restrictions on mining, and the procedure to be followed lawfully. It mandates the mining agencies to abide by the standards set by different regulatory bodies of the US government. It prescribes procedures to be followed to exercise rights on leased land, like transferring rights, relinquishing rights, etc. It regulates the taxation regime and other state-imposed duties that are to be paid for undertaking leasing activities. It regulates the formation of contracts of lease and sets standards and essentials that make these contracts lawfully valid. 

Natural Gas Act of 1938

Covered under Chapter 15B of 15 United States Code (Title 15), the Natural Gas Act of 1938 regulates the construction and operation of gas pipelines in the United States. The Act essentially makes the following regulations:

The operation and interstate transportation of natural gas in the US is done in the public interest and monitored by the FERC. The FERC is vested with the responsibility to ensure that every procedure is followed, keeping in mind the public interest. 

The provisions of the Natural Gas Act of 1938 are applicable to interstate transportation of natural gas for public distribution for domestic, commercial, as well as industrial needs. The regulations are also applicable to imports and exports of natural gas. However, the regulations are not applicable to intrastate transportation.

The Act gives importance to public safety and states that transportation made in closed containers and in fuel in a self-propelled vehicle shall be considered natural gas transportation. 

It makes provision for free trade agreements to be entered into while importing gas to the United States. The agreement was entered into with the United States and the country supplying natural gas as parties.

The Act makes a detailed safety regulation by making provisions for inspections, advisory reports, state consultations, emergency response plans, etc. Further, the Act makes provisions to ensure healthy and fair competition in the marketplace. 

Clean Air (Amendment) Act of 1990

The extraction, preparation, and transportation of minerals, oil, and natural gas involve risks to the environment. The chemical compounds, fumes, and other harmful substances that are emitted can potentially harm the environment if not taken care of. Thus, these processes must be done in consonance with the Clean Air Act of 1990. The Clean Air Act aims to control and prevent air pollution in the US. The Act aims at identifying and curbing source-specific pollution. The Act mandates the local governments and their agencies to look after pollution control measures in their particular states. The clean Air Act sets standards and measures to be observed while indulging in activities involving air pollution risks. The local governments regularly monitor the factories and units indulging in these activities and ensure they follow the safety norms and standards. They also scientifically inspect the quality of air in their jurisdictions. The Act makes provisions for the use of alternative fuels to petrol and diesel that emit pollutants in high amounts. The Act encourages the use of natural gas, biogas, methanol, ethanol, etc., as they do not harm the environment. 

Energy Policy and Conservation Act of 1975 

The Energy Policy and Conservation Act of 1975 regulated the energy sector and made provisions for the efficient use and conservation of petroleum and other products. It directed the plants and factories that run by burning fuels like natural gas and petroleum products to replace them with coal. The Act authorized the Federal Energy Administrator to monitor these power plants. The Act empowered the US President to restrict and limit the export of coal, petroleum, natural gas, etc. The US Congress is required to make quarterly reports under this Act while making such restrictions. The restrictions are made in the national interest. The Act makes provisions for making optimum domestic supplies. The Act established a Strategic Petroleum Reserve Office in the Federal Energy Administration. This was made with the intent to make huge storage and maintain stocks of petroleum for use in the US. A Strategic Reservation Plan was made to further this idea. Such a plan would require an environmental impact assessment, storage facilities, and estimated costs, as well as the consequence of this plan on petroleum prices in the US. The states where facilities are installed are required to make reports to the Federal Energy Administrator, and the Administrator further makes an analysis. Thus, this Act was enacted to ensure the conservation and proper utilization of petroleum and natural gas.

Resource Conservation and Recovery Act of 1976

The Resource Conservation and Recovery Act of 1976 empowers the EPA to control and implement hazardous waste management. Right from the beginning of extractions, followed by the filtering and refining, and the final stage of transporting, hazardous wastes are generated voluminously. The EPA is entrusted with the duty to control and manage it. However, the Act is not limited to hazardous waste. It also makes provisions for the management of non-hazardous solid wastes. It also deals with underground tanks that store petroleum and other harmful substances, their impact on the environment, and the risks involved. The Act aims to mitigate these risks. The Act aims at waste minimization. It channelizes and makes procedural arrangements for the disposal of waste. It conducts compliance monitoring through inspections and investigations. These activities are conducted by the local governments following the guidance of the EPA and the federal government. The conservation and monitoring programs cover hazardous waste management, management of used oils, universal wastes, mixed wastes, land disposals, waste injections, imports/exports and dumping of wastes, underground storage tanks and solid wastes.

Energy Policy Act of 2005

The Energy Policy Act of 2005 governs the energy sector of the United States. It manages the energy production, supply and distribution, and conservation of energy in the States. It makes provisions for the efficient use of energy. It addresses the proper and mindful utilization of renewable energy. It manages the production and distribution of oil, gas, coal, tribal energies, nuclear energy, ethanol, hydrogen, etc. It addresses the threats of nuclear energy and sets security measures to be followed. It manages hydropower and geothermal power and its sources. It manages the taxation and duties on these energy sources and sectors. Importantly, it makes provisions for technological measures to be taken so that the energy sector does not become a source of climate change. The Act makes provisions for financial aid and assistance in research and development programs that aim at innovating new ways and technologies that do not harm the environment and decrease the by-production of greenhouse gases. 

Energy Independence and Security Act of 2007

The Energy Independence and Security Act of 2007 was enacted by the US Congress with the objective of enhancing security in the energy sector of the United States. It aims to increase the production of renewable energy in the US. The Act also aims to improve vehicle fuel economy in the US. The Act aims to increase energy efficiency, and to do so, it directs federal and local agencies to decrease energy intensity by 3% by FY2015. It directed the agencies to make provisions and establish energy managers at facilities and plants. The agencies are further required to make periodic evaluations and implement the necessary measures for efficient energy utilisation in these facilities and plants. The agencies are required to constantly monitor these facilities and ensure that they function within the safe limits and set standards of energy production. The agencies also evaluate the use of water in these facilities and plants and, thereafter, make provisions for water conservation measures. One important measure implemented by the Act is the aim of reducing the use of fossil fuels, and focusing on and promoting sustainable development. The facilities and buildings wanting to establish plants and factories for energy development must have acquired an ENERGY STAR® status from the government. It promotes the replacement of non-renewable sources with renewable sources of energy like solar energy, etc. 

International agreements

Apart from the federal statutes dealing with oil and gas laws in the US, there are certain international treaties, conventions, and recommendations that the US government abides by and reflects in its statutes. Those are:

UN Framework Convention on Climate Change

The United Nations Framework Convention on Climate Change is a convention of the United Nations that member nations must abide by. The United States, being a member nation, also follows the laws, regulations, and standards set by the UNFCCC. It is the duty of the member states to make their domestic legislation at par with the standard norms and model of the United Nations. Thus, the different legislation made by the United States Congress is also in consonance with UNFCCC rules. The Clean Air Act of 1990, the Energy Policy Act of 2005, etc., are all consistent with UN conventions. The UNFCCC defines climate change as a change in the atmospheric composition of the environment from its natural order due to human activities over a period of time. Many other international agreements like the Kyoto Protocol (1997/2005) and the Paris Agreement (2016) were resultant of the UNFCCC. The primary objective of the UNFCCC is to ensure the prevention of climate change due to human activities and interference. The UNFCCC has set standards and limits beyond what is termed as ‘dangerous human intervention.’ This is assessed with three measuring standards: sustainable development, agricultural productivity, and ecosystem response. It is calculated as being within these standards if:

• The ecosystem gets enough timeframe to adapt to climate change naturally, 
• The consequences of climate change do not interfere with or obstruct sustainable development, and 
• When climate change does not affect the agricultural productivity of states. 

The convention aims at stabilising greenhouse emissions in quantities that do not harm the environment or cause climate change. This must not affect the food productivity of a state or be an obstacle to its sustainable development goals. 

Kyoto Protocol (1997/2005)

The Kyoto Protocol came as a consequence of the UNFCCC. It is an international treaty agreement between countries to achieve stable levels of greenhouse gases in the atmosphere in a way to prevent dangerous anthropogenic interference in the climate and the ecosystem. It is an agreement between member countries that aims at reducing greenhouse emission targets. The developed countries have been vested with additional responsibilities. The developed countries have contributed to greenhouse emissions for a century and a half due to their industrial activities. Hence, they are entrusted with ‘common but differentiated responsibilities.’ During the first phase of the protocol post-enactment, the industrially developed countries were mandated to reduce emissions of 5 harmful gases, namely, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and hexafluoride sulphur by 5% by 2012. During the second phase in 2012, countries were required to reduce emissions by 18% from the period of 2013 to 2020, as compared to the emission levels in 1990. Thus, all the countries, including the United States, have to abide by these standards set under Kyoto Protocol while dealing with their oil and gas and make necessary regulations to guard the same. 

Paris Agreement of 2016

An outcome of the UNFCCC, the Paris Agreement of 2016 is an international treaty affecting climate change. It was ratified by 196 countries in Paris in 2015. The Agreement aims at bringing down the levels of global warming to a good 1.5 degrees celsius. This would be made possible by reducing greenhouse emissions. The Paris Agreement proposes achieving the goals with the help of technology. It aims to reach the targets with 5-year plans by using technology to bring economic and social changes. The countries regularly share their short-term and long-term targets and the ways they are advantaging to achieve them. The countries also help one another to reach targets efficiently. The Paris Agreement makes provisions for helping the countries in need, financially, with technical assistance, and with capacity-building support. Developed countries are encouraged to provide financial assistance to countries in need of financial assistance. The Paris Agreement talks about a technology framework that helps the countries meet the technological means using this mechanism. The developed countries are also encouraged to help the developing countries build capacity to meet their goals. The United States has made its regulations and legislation dealing with gases and energy emissions at par with the standards of the Paris Agreement of 2016.

Regulatory bodies

The federal statutes are guarded by regulatory bodies in the USA. These regulatory bodies ensure that the laws are followed all over the United States and that standards are maintained. They form their own set of regulations and standards to ensure that the oil and gas industries are channelized. These regulatory bodies guarding the oil and gas laws in the United States are:

Federal Energy Regulatory Commission

The Federal Energy Regulatory Commission, as the name suggests, is a federal regulatory body that manages the energy sector in the US. It makes provisions for the construction and operation of pipelines in the lands of the United States. It also regulates the transportation rates for oil in the US. It regulates interstate pipelines, operations for oil and natural gas, as well as imports and exports of oil and natural gas. It abides by the Energy Policy Act of 2005 and follows its requirements with regulations governing interstate commerce of oil and natural gas. The safety of these interstate pipelines is maintained by the Department of Transportation. 

US Department of Interior Bureau of Land Management

The US Department of Interior Bureau of Land Management is a department of the US government that makes provisions for land management in the USA. In the context of oil and gas laws, it is an agency that deals with leasing and licensing of mineral estates to individuals for extraction and development of minerals and oil. These lands might be owned by the federal government, extractive corporations, or private individuals. The mission of the agency is to promote cleaner air and a pollution-free atmosphere. It aims at restoring the land and water to nature and helping to balance the natural order in the environment. It also aims at conserving natural resources and non-renewable resources. The agency regulates around 200 million acres of land in the USA. The BLM also conducts auctions for awarding leases to private individuals, which grant them the rights to extract, develop, filter, refine, and transport minerals and oil from those lands. These leases are granted for a period of certain years on federally owned lands. In exchange for the lease, the government enjoys a specific percentage of royalty on the products, periodically. 

US Bureau of Ocean Energy Management

Just as the US Department of Interior Bureau of Land Management manages the land and mineral estates on the surface of the Earth, the US Bureau of Ocean Energy Management is a federal agency that manages surfaces offshore. It provides leases on the outer continental shelf for energy location, extraction, and development of these minerals and other resources found in the oceans. The coastal states own mining and extraction rights up to 3 nautical miles from the ocean. The federal government owns 200 nautical miles offshore, which is known as the Exclusive Economic Zone. These surfaces can be leased for mining and extraction just like the land surfaces. The BOEM is vested with the responsibility of conducting auctions for granting leases of these areas. It also aims at the sustainable development of these surfaces while keeping the national interest intact. It promotes economic development and maintains national security. The BOEM acts on the advice and aid of a scientific and technologically sound team of professionals. 

US Bureau of Safety and Environmental Enforcement

The US Bureau of Safety and Environment Enforcement is popularly known as the sister agency of the BOEM. It works closely with BOEM and ensures safety measures are followed while mining and extracting minerals offshore. It provides safety measures for the workers and the environment and restricts extractions to safe limits so the resources are not exhausted. It imposes federal rules and regulations to ensure safety in offshore mining and extraction. It comes up with management and operational plans to increase the safety and conservation of offshore minerals and protect the environment. They also conduct periodic inspections and investigations to ensure the offshore mining and extracting activities are being undertaken while following the safety standards. 

US Department of Transportation Pipeline and Hazardous Materials Safety Administration

The US Department of Transportation Pipeline and Hazardous Materials Safety Administration ensures safety in the transportation of energy and hazardous minerals. To achieve this goal, the agency proposes national plans that the individual states and individual contractors should implement. It creates awareness and education for the people involved in transportation activities. It also sets safety norms and standards that the individual players and related people and agencies must abide by. It makes use of scientific and technological measures to achieve these safety goals. It also finances research and development programs to come up with innovative short-term and long-term solutions and safety standards. It also arranges training programs for different agencies and federal personnel to provide a better understanding of safety values and standards. 

US Environmental Protection Agency

It is safe to call it the most important agency in protecting the environment in the United States. All the departments and agencies discussed in this article work under the guidance and in consonance with the regulations and standards set by the US Environment Protection Agency. With the goal of ensuring environmental protection, EPA envisions the following objectives:

• Ensure the air, water and land in the United States is free from pollution.
• Using scientific technology to reduce the levels of environmental pollution. The EPA believes that to achieve this goal, combined efforts of all states and individuals are needed.
• The EPA is entrusted with regulating and enforcing federal laws for environmental protection in the US. 
• The EPA is entrusted to help the state and its government achieve its goals of environmental protection and sustainable development. 
• While formulating its policies for environmental protection, it takes into consideration factors like human health, natural resources, economic growth, energy, transportation, industries, agriculture and international trade. The EPA believes these factors influence the environment and are also essential for a state’s administration. 
• EPA believes in transparency. It says that for people, communities, businesses, local governments, and the federal government to be able to work efficiently toward environmental protection, they must have sufficient access to the necessary information and factors affecting the environment and EPA policies. 
• EPA looks into the careful and safe disposal of dangerous substances and chemicals from the lands and waters that have been produced during mining and extracting activities. 
• EPA prescribes tests for chemicals to ensure safety before they can be released to the marketplace. 
• EPA makes regulations for states and local players to follow. These regulations are made as per the federal environmental laws.
• EPA sets acceptable norms and standards of environmental safety, and all local governments must ensure these standards are maintained by businesses and facilities in their states. 

The EPA makes its regulations around these objectives. It also monitors the activities of local and tribal governments, private companies, etc., dealing with hazardous substances. All the companies, individuals, and government departments and agencies that deal with the mining, extraction, processing, and transportation of oil, natural gas, and other minerals, onshore, offshore, and through pipelines, are all closely monitored by the EPA. The EPA has designated different regulatory divisions to fulfil this task and work as per the many environmental legislation passed by the federal government as we read in this article. Additionally, the EPA provides financial grants and assistance to organisations, projects, and studies that aim at conducting research and developing innovative ways of environmental protection. It provides financial aid for spreading awareness and education on the importance of environmental protection and ways of achieving it. The EPA has its own laboratories scattered throughout America to conduct extensive research on existing environmental problems and find ways to solve them. 

EPA shares its findings and analysis with other countries as well, to help them achieve environmental protection goals efficiently. This is a step in the positive direction where environmental safety can be ensured through international collectivism. It furthers the idea envisioned by UNFCCC and other international agreements by increasing cooperation and coordination.

EPA regularly joins partnership hands with various local agencies, NGOs, and businesses to increase efficiency and learn and work on technicalities better. The EPA regularly updates its official website with information and educational articles that create basic awareness among ordinary people. 

US Congress Committees

Legislation, regulations, and laws are enacted and monitored by various standing committees of the US Congress. These committees begin by giving advice, also perform the functions of looking after the passing of bills and monitoring the implementation of laws.

House Committee on Energy and Commerce

Pursuant to the Commerce Clause of the US Constitution, the US Congress established a standing committee in 1795 called the House Committee on Energy and Commerce. It is one of the oldest standing committees in the US. The primary function of the committee is to manage interstate commerce as well as imports and exports. It takes into consideration factors like the economic growth of the nation, healthcare of its citizens, transportation, energy, and the environment. It ensures environmental protection and formulates nation’s energy policies. These policies regulate the commerce and transport of oil and natural gas in the US. The Committee enjoys jurisdiction over commerce and is responsible for making laws to regulate commerce and safety in the United States. 

House Committee on Natural Resources

The US Congress’s House Committee on Natural Resources aims at conserving and developing the state’s water resources, lands, resources from land, wildlife, air quality, environmental protection, and waste management. It aims to reduce climate change due to harmful substances. It monitors onshore and offshore oil and gas developments. It establishes energy resources for renewable energy like geothermal energy, solar energy, wind energy, and ocean energy. It monitors mining regulations for coal and hardrock mining. It also protects the rights of tribal communities in terms of granting them equal access to natural resources. It conducts inspections and investigations to ensure that state regulations are followed in the energy industry. It ensures that natural resources are managed and utilised effectively. It ensures protecting the oceans from pollution, climate change, and contamination due to harmful waste.

US Senate Committee on Energy and Natural Resources

The US Senate Committee on Energy and Natural Resources is a committee of the US government that aims to manage and develop energy resources in the US. It is responsible for managing nuclear energy. It also manages petroleum and petroleum products in the US by establishing Strategic Petroleum Reserves and following petroleum reserve plans in different states of the US. It addresses the issues of energy shortages and increasing energy prices in the USA. It also manages the domestic sources of energy. It is also responsible for managing and enforcing the federally made laws governing energy and natural resources. It coordinates with the state governments and agencies to ensure this governance. It works through various subcommittees to achieve the energy goals of the government. The committee conducts its own research and development in established laboratories and comes up with innovative regulations and solutions. Apart from energy and natural resources, it also manages the National Parks in the US, the rivers, trails, and other relevant systems in those National Parks. 

Conclusion

The oil and gas industry is huge and the United States has been a big player in this game. The oil and gas industry significantly affects the United States’ GDP. Thus, it is no surprise that there are a number of regulations, laws, regulatory bodies, agencies, etc., to manage the sector effectively. The USA, being an important member of the United Nations, also makes sure that the country’s laws are in adherence to the UN conventions and international agreements. Even so, the laws have been able to fulfil all their promised obligations. Even though the regulations and agencies seem to place the highest importance on the protection of the environment, the environmental impacts of the USA’s industrial activities have been often questioned. Even the United Nations has been criticised for giving relatively less importance to environmental issues when they are caused by developed nations. Time will tell how far these regulations and laws fulfil their future goals and contribute to making a better, safer, pollution-free world. 

Frequently Asked Questions (FAQs)

What are the factors affecting oil and gas prices in the US?

The following factors help in determining the prices of oil and gas in the US:

1. Market forces: demand and supply in a given financial year.
2. National energy policies.
3. Tax regime and other duties imposed on oil and gas.
4. Transportation, distribution and marketing costs.
5. Processing costs.

Which country has the most oil in the world?

According to the 2016 Statistical Review of World Evergy and US Energy Information Administration (EIA), Venezuela tops the list for having 299,953,000,000 barrels of oil reserves (18.2% of world share) and the United States stands at 11th place with 35,230,000,000 barrels (2.1% of world’s share).

Who regulates the oil and gas laws in the USA?

The US government, through its various legislation and regulations, regulates the oil and gas industry in the country.

What are the factors responsible for gas being affordable in the US, as compared to other counties?

Gas is so affordable in the US for the reason that it has huge reserves and supplies of gas in the country and they regularly engage in exporting gas. The industry makes up huge proportions of the country’s GDP and this availability and sensible use make it more affordable than other states.

Does the US import oil at all?

Yes. Apart from the sources and reserves within the country, the US also imports oil from countries like Russia, Canada, Mexico, Saudi Arabia and Columbia. Interestingly, the 2022 Ukraine-Russia war, where the US chose to support Ukraine, has been a reason behind Russia cutting off its oil supplies to the United States.

What is the average petrol price in the US?

Petrol price ranges from $1.19 to $1.37 (average: $1.27) per liter from April-June, 2022.

References

• https://guides.loc.gov/oil-and-gas-industry/laws 
• https://guides.loc.gov/oil-and-gas-industry/laws/agencies 
• https://uk.practicallaw.thomsonreuters.com/w-013-2478?transitionType=Default&contextData=(sc.Default)&firstPage=true 
• https://iclg.com/practice-areas/oil-and-gas-laws-and-regulations/usa 
• https://content.next.westlaw.com/practical-law/document/I466099551c9011e38578f7ccc38dcbee/Oil-and-gas-regulation-in-the-United-States-overview?transitionType=Default&contextData=%28sc.Default%29&firstPage=true&viewType=FullText 
• https://www.americangeosciences.org/geoscience-currents/us-regulation-oil-and-gas-operations 
• https://www.epa.gov/smartsectors/oil-and-gas-sector-information 
• https://www.oilandgasiq.com/strategy-management-and-information/articles/oil-gas-industry-an-introduction 
• https://www.americangeosciences.org/geoscience-currents/health-and-safety-oil-and-gas-extraction

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This article is written by Ms. Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article gives an elaborate description of the United States Civil Rights Act of 1964 and tells stories of history that led to its enactment. The article also talks about its implementation in the US through judicial pronouncements and departments of government.

It has been published by Rachit Garg.

Introduction

Imagine you are in your favourite cafe in town sipping on your favourite hazelnut latte. Sounds good? Now suddenly, the cafe owner makes an announcement that they are making some ground rules in the cafe wherein only people who would visit wearing green-coloured shirts would be allowed to sit in the cafe and sip on their favourites. Wouldn’t you be ridiculed? The owner further adds that only the people who own a white Tesla Model X would be ‘eligible’ to visit the cafe. It sounds ridiculous and absurd, doesn’t it? Now imagine a similar situation faced by half a country for decades but only at places and services far more crucial like education and employment! That is how the civil rights movement began in the United States and went on to the historic legislation being enacted. In this article, we shall learn about its history, developments, and struggles that led to how it stands today.

After years of political and societal struggle, on 2nd July 1964, US President Lyndon Johnson signed the bill into law to enforce the Civil Rights Act (1964) in the United States. This Act pioneered the rights of US citizens by eliminating discrimination on the basis of caste, colour, creed, religion, class, etc. It granted people equality and freedom. It provided equality in opportunity and in education. It further advocated for granting voting rights to every US citizen irrespective of race. It lawed desegregation in education and employment in all industrial sectors such as hotels, theatres, etc. It also outlawed segregation in public places such as libraries, pools, parks, schools, etc. It made uniform laws for voter registration all across the United States without any discrimination. It ended racial discrimination in public accommodations and other public utility services and facilities. The 1964 Act came as an amendment to the previous 1957 and 1960 Acts. Most importantly, the 1964 Act protects citizens of America from unlawful or discriminatory acts of the state and its authorities. 

In this article, we shall learn about the Civil Rights Act of 1964 in detail and conduct a critical analysis of the same.

Development of the Civil Rights Act of 1964: legislative history

The Civil Rights Act of 1964 not only granted civil and political rights to US citizens but also became a boon to the minority groups in the country. The US Constitution did not make an express provision for protecting minority rights in the US. However, the 13th, 14th and 15th Amendments post the Civil War period made certain provisions such as abolishing slavery, providing equal protection under the law to the minorities, and granting them voting rights and citizenship, especially to African Americans. These amendments empowered the US Congress to bring legislative reforms for the minorities. However, the US government and lawmakers made little or no effort to bring legislative reforms on civil rights until the 1900s. It was during World War II, when the Black soldiers faced discrimination and atrocities in the army, that the civil rights movements started gaining seriousness. Black people in the US also faced difficulties in joining the army as the recruitment process discriminated on the basis of race and thereby rejected them. It was during this time that the voices demanding basic civil rights reached the senators. 

In 1945, 1947, and 1949, the House of Representatives voted against the poll tax and the 24th Amendment ended the poll tax in 1964. The poll tax restricted the right to vote in the US. Although the senators did not give this bill a green signal, it marked the beginning of the fight for civil rights in the US. This attracted federal action and the federal executive’s attention towards making changes by inculcating non-discrimination in state military services, federal employment and contracts with the federal government. 

The US Supreme Court joined the movement in the 1950s. Post World War II, federal courts in the United States started ruling judgements in favour of minority groups. In a historic judgement in 1954, the Supreme Court agreed to hear and try a case that involved the issue of racial segregation in government-run schools. American society had always ignited racial discrimination in the country and the schools were no different. The schools made discrimination in admission and education between the Black and whites of the US. This was not only discriminatory but also demeaning to Black people. The schools made discrimination under the name of ‘separate but equal’ opportunities in education. This feature made provisions for separate schools for white children and for Black children, and neither was granted admission in the other. The rule-makers stated that learning besides Black children would decrease the learning capacity of whites. The Supreme Court struck down this segregation rule in this landmark judgement of Brown v. Board of Education of Topeka, Kansas (1954). The Supreme Court criticised the concept of ‘separate but equal’ stating that the two can never coexist. Separate itself denotes inequality. Thus, the Supreme Court struck down the legality of this concept and stated that Black and white children cannot further be asked to attend separate schools for education. This was a historic judgement in the United States civil rights history because it was like a ray of hope in the darkness for the oppressed classes of the society. This was, however, just the beginning and legislative reforms were the need of the hour. 

Although the US Congress had made several efforts and introduced bills to guarantee civil rights to its citizens, they could never become law. It was only after the Brown v. Board of Education judgement that successful efforts started taking place. The US Congress enacted the Voting Rights Act in 1957 which was updated in 1965. This was followed by the Civil Rights Act of 1957 and the Civil Rights Act of 1960. These were the beginning steps toward a positive change in the civil rights movement in the US. The minorities’ conditions improved moderately, and most importantly, these changes stopped the encouragement against making discriminating rules in the US. 

By 1960, the movement started gaining more recognition and support. It was during the tenure of President John F. Kennedy who wholeheartedly supported and encouraged the legislative reforms in civil rights laws. Political pressures prevented him from presenting a bill for passing civil rights legislation in 1961, he took necessary steps to bring changes in minorities voting rights, employment rights, non-discrimination in public transportation, housing and executive action. He took various legislative initiatives to protect civil rights through federal laws. The year of 1963 witnessed the unfortunate demise of the righteous President of the United States when he was assassinated. Even so, his efforts did not go in vain and the bill became law in 1964 under the Presidentship of Sir Lyndon Johnson. 

The changing social perspective

American society also became an active participant in the civil rights movement during the 1960s. The social conditions became dynamic and started changing rapidly. Minority groups gained confidence, a sense of belonging, and a voice to address their concerns. They became more vocal about their needs, demands, and rights. Even the white Americans joined the movements. The African Americans became outspoken about the atrocities they have faced for years, the inequalities in public places and public transportation; the discrimination in employment and education; and the demeaning behavior in the army and the military. 

Protests during 1950-60

The minorities as well as the white Americans started participating in strikes and boycotts to address the plights and put an end to them. After protesting for months, many social changes started coming into force. The prohibition of Black Americans in public transportation was removed. The years between 1960 and 1964 saw an extreme increase in protests and boycotts. Finally, in 1964 the Civil Rights Act was passed and enforced. 

Students started protesting in schools in North Carolina and New Orleans. They sat against the segregation rules and regulations prevalent in the US. After months, the Supreme Court struck down one Louisiana Statute that promoted segregation. In a celebrated moment in January 1961, two African Americans got admission to the University of Georgia which earlier granted admissions only to white Americans. 

Several organisations were also formed to fight for people’s civil rights in the US. The Congress of Racial Equality (CORE) became one such popular name for their non-violent strikes. The National Association for the Advancement of Coloured People (NAACP) aided the jailed protestors and protested actively against racial inequality. Organisations like the Southern Christian Leadership Conference (SCLC), the Student Non-Violent Coordinating Committee (SNCC), and the Urban League became notable names in civil rights protests.

The Freedom Rides

One such form of protest that became noteworthy was the Freedom Rides protest in 1960. The Blacks and whites who protested together entered the southern cities using public transportation together to inspect the segregation prevalent in public transportation facilities in those cities. Many times, the protests also incited violence so much so that the US military had to intervene. 

The University of Alabama

US Governor George Wallace was a believer in segregation and did not support the civil rights movements. In one instance in 1963, he vowed and stood at the doors of the University of Alabama with the motive of not letting two black students get admission into the university. In an answer to this, President Kennedy federalised the Alabama National Guard in order to protect the black students’ rights and admission. President Kennedy called the civil rights movements legal, moral and constitutional. He addressed the nation and ensured them that civil rights legislation shall be enacted to guarantee them their basic civil rights. He promised them equality and the end to discrimination and segregation.

James Meredith’s admission denial

In another instance in 1962, an African American boy named James H. Meredith Jr. tried to get admission to the University of Mississippi. During this time, the opposers of the state incited violence and injured around 400 civilians alongside killing 2. While Martin Lurther King Jr. and President Kennedy made efforts for peaceful protests, the reality no longer adhered to this imagination. Fuelled by the murder of 2 protestors, the others started fighting with agitation. Four other African Americans were killed by the opposing whites of Birmingham. These four civilians were school-going girls who were bombed. The news quickly spread and escalated in the national media. The minorities thus began rioting as a result of all the killings and protests. 

Washington marches

In August 1963, in a memorable and historical march, more than 250,000 American civilians demanded freedom, equality, and equal job opportunities for all Americans alike. The march was led by famous names like Philip Randolph, John Lewis, etc. This was followed by the iconic speech of Martin Luther King Jr. from the Lincoln Memorial steps as – ‘I have a Dream.’ This march was a success, and President Kennedy invited the marchers and their leaders to the White House to discuss their opinions on the civil rights bill. 

The situation was clear that legislative interference could no longer wait. In May 1963, the senators and representatives agreed to pass the civil rights bill proposed by President Kennedy. The final bill reflected several ideas like ideas of citizens, ideas of the Congress, ideas of protesting groups and organisations, and the executive. After President Kennedy’s assassination, President Johnson assumed office. He sought in favour of the civil rights bill for a long time. When the bill passed in the House of Representatives and the Senate, he signed the bill into law within a few hours on a television broadcast from the White House. Finally, in 1964, the bill was passed and it became a law: the Civil Rights Act of 1964.

President Kennedy and the civil rights movement: the 1960 elections

Political pressures and factors affected the civil rights movements to the greatest extent during the 1950s and 1960s. It was right in 1961 when John F. Kennedy assumed the office of the US President. It was also when the protests started gaining momentum and added political pressures. Determined in his approach to granting civil rights to the people of America, President Kennedy relentlessly promoted the idea. While he was not a civil rights activist during the 1950s, he became more inclined toward the subject after assuming office. He even avoided talking on the subject during his elections campaigns all for the political fears of struggle and controversy. This was regarded as a means to gain political support in the elections. He remained silent on the issue during 1961-62 but it was in 1963 that he became vocal on the issue and became an ardent supporter of the movement. In June 1963, in a nationwide address on national television, President Kennedy addressed the American citizens and urged them to participate in the movement to guarantee racial equality in the United States. Thereafter, President Kennedy also introduced the civil rights bill with a proposal to enact civil rights legislation that would contain the following provisions:

1. Equal voting rights,
2. Desegregation in public transportations and accommodations,
3. Equal treatment in public places,
4. Desegregation in public and government-run schools,
5. For the establishment of a Community Relations Service,
6. To continue the preexisting Civil Rights Commission,
7. Non-discrimination in every sector, especially in the federal programs,
8. For the establishment of an Equal Employment Opportunities Commission.

The US Department of Justice was vested with the responsibility to envisage the ideas of President Kennedy into legislation. After close scrutiny and meticulous work by the draughtsmen, the bill was presented to Congress on June 19, 1963. The bill was presented in phases of 3 to different divisions of Congress. The bill was debated by the senators and representatives closely. Although President Kennedy could not live to see the day when the bill became law, the bill was finally approved and passed by Congress, senators, and the House of Representatives after several rounds of debate and recommendations. President Kennedy’s contributions and determination were huge pioneers for the success of this civil rights movement and are always remembered in US history. 

An insight into the Civil Rights Act of 1964

The Civil Rights Act of 1964 became a historic and celebrated piece of legislation in the United States that came after years of struggle. The new Act conferred upon the American citizens the following rights and made the following provisions:

• Enforced the right to vote as a constitutional right,
• Conferred wide jurisdiction to the US District Courts to adjudicate matters and provide relief against discrimination in public accommodations and public transportation,
• Recognize the non-discriminatory rights in public transportation and public education as a constitutional right,
• To entrust the Attorney-General to take steps and ensure the protection of these constitutional rights of the people,
• To entrust the Commission on Civil Rights to ensure equality in federal programs,
• To establish a Commission on Equal Employment Opportunities and other purposes.

The Civil Rights Act of 1964 forbids discrimination of all kinds on the basis of race, colour, caste, creed, class, religion, and nationality. It forbids discrimination in education, job opportunities, and employment. It ensures equality before the federal laws for all citizens alike. It ends segregation in public schools and public accommodations. It ensures the right to vote equally to all. It ensures equal protection of the law. It provides protection from arbitrary actions of the government and provides remedies to citizens if their civil rights get violated. To fulfill the given objectives, the Act has been divided into 11 titles to address different issues and protect against discrimination.

Order of Titles in the Civil Rights Act of 1964

The Civil Rights Act of 1964 is divided into the following titles that deal with different issues specifically and provide remedies:

Title I: Voting rights

Title I describes the voting rights of the people of the United States. The Title states that no person shall be denied the right to vote on the basis of colour. There shall be no differences in standards, practices and procedures in the election voting in any state of the United States. The state laws and federal standards for elections shall remain the same for all people in all the states of the US. No person shall be denied the right to vote in federal elections because of any error in registration papers or application papers if this error is immaterial and unimportant to decide whether or not the person is capable of voting. A person shall be deemed fit to vote if he qualifies under the state laws to vote and the state laws shall be uniform throughout the US. 

Standard registration and application process must be maintained for all citizens alike with no changes in standards for black Americans and white Americans. However, the federal laws maintain a set standard to check qualifications for citizens who shall be deemed eligible to vote. This was termed the ‘literacy test.’ Title I further makes provisions for procedures to be followed in making the literacy test. It states that such tests must be made for each person applying for voting registration, individually. It shall be conducted in writing. The written answers of every individual must be sent to him in the form of a certified copy within 25 days and the original must be retained by the state for preservation as per Title III of the Act. The Attorney-General is vested with the power to make special provisions for blind and specially-abled people, in accordance with state and local laws. A literacy test is done in order to assess an individual’s reading, writing, understanding abilities and their ability to interpret matters of importance, like the ability to assess the right person to cast their vote to. 

Title II: Public accommodations

Title II provides protection against discrimination in places of public accommodations. It provides injunctive relief. The intent of Title II of the Act is to ensure equality and nondiscrimination in the enjoyment and availing of goods, services, facilities, and accommodations. It ensures that every citizen enjoys public facilities without any discrimination on grounds of race, colour, sex, religion, caste, origin, or creed. 

Further, the Act defines what a public accommodation is. As per Title II, public accommodations and facilities include anything that affects commerce in the state. Any public function or facility that previously had witnessed discrimination or segregation by state can also be categorised as a public accommodation to provide relief under this part of the Act. Title II further specifically categorises certain public accommodations which must follow nondiscrimination and desegregation, these are:

1. Inns, hotels, motels, or any other type of establishment that provides lodging facilities other than a self-owned residence.
2. Restaurants, cafeterias, lunchrooms, soda fountains, lunch counters, or any other establishment that engages in food supply to the public.
3. Motion picture houses, halls, theatres, concert halls, sports arenas, stadiums, or other establishments for entertainment and exhibition. 

This list is inclusive and entails within it all other establishments of a similar nature, even when these establishments are within another establishment, that which does not fall within the given list. An act of segregation or discrimination in these places will be considered to be so if it is facilitated by state action if the discrimination or segregation is on the basis of caste, colour, creed, race, sex, origin, or religion. These rules should not apply to private establishments. 

In Heart of Atlanta Motel v. the US (1964), the Warren Court decided that the Commerce Clause of the Civil Rights Act of 1964 extends to hotels that host people from outside the state where it is located as well. The Court held that it is within the powers of the government empowered by the Civil Rights Act of 1964 to restrict the motel from discriminating in accommodating people on the basis of colour, race, nationality, etc. 

In Hamm v. City of Rock Hill (1964), the case was filed by certain African Americans who were held liable to have violated the state trespass statute for sitting at a lunch counter of retail stores. The US Supreme Court held that these lunch counters would come within the ambit of Title II of the Civil Rights Act of 1964 and hence, constitute a public accommodation. The Court further held that this would be treated as a federal statutory right and thus, the provisions of the Civil Rights Act (1964) shall prevail over the state trespass statutes.  

Title III: Desegregation of public facilities

Title III speaks about the desegregation of public facilities. It gives powers to the Attorney-General to decide cases of discrimination and segregation in public facilities on the basis of race, colour, origin, nationality, etc. If a person’s right to equal protection before the law is hampered or threatened by any act of discrimination in public facilities, he can make a complaint to the Attorney-General and the Attorney-General shall provide him with the requisite legal remedy. Title III does not include the public schools, colleges and universities as they are included in Title IV of this Act. The Attorney-General shall also take all the necessary steps to help an aggrieved person under this title if the aggrieved person is unable or incapable of availing of legal proceedings. The State bears all the legal costs and Attorney’s fees in this case. The complaint made under Title III of the Act is to be in writing. 

In the case of United States v. Wyandotte County, Kansas (1972), the Wyandotte County Jail (defendants) were held liable by the United States District Court to be guilty of racial discrimination within the jail’s premises. The jail authorities were guilty of overlooking the racial discrimination and segregation habits followed on the jail premises. They were also guilty of not taking adequate actions to ensure the safety of federal and state prisoners on the jail’s premises. This was held to be violative of Title III of the Civil Rights Act of 1964. 

Title IV: Desegregation of public education

Title IV was designed with the intent to end segregation at public schools and universities that had been practised for decades in American society. Segregation was practised in public schools and colleges on the basis of race, colour, origin, nationality, etc. To fulfil this intent, the Commission was vested with a responsibility to make survey reports within two years from the enactment of the Civil Rights Act of 1964. The Commissioner had to conduct surveys on public schools and colleges and identify the schools and colleges that continued practising segregation on the abovementioned grounds and submit this report to the President and the US Congress. These surveys were conducted in all the public educational institutions in the United States, its territorial jurisdictions, and the District of Columbia. 

Title IV also vested a responsibility on the Commissioner to provide technical assistance to public schools and colleges in adopting, implementing and regulating desegregation rules and practices in their respective schools. Technical assistance is provided when a school authority makes a request to the Commissioner in writing. The Commissioner has the right to refer the matter to special agents from the Office of Education Department to provide necessary guidance and assistance to the school managerial boards in implementing segregation laws. 

Title IV enables the Commissioners to arrange training sessions in public schools and universities if he deems fit and necessary. The Commissioner can arrange periodic short sessions on a regular basis in higher educational institutions to train the administrative staff, non-administrative staff, and employees on implementing and practising desegregation in their schools. These sessions are arranged through grants or contracts, and the trainers are to be paid stipends and travel allowances as per the terms specified by the Commissioner. 

The Commissioner has the power to make grants to public school managerial boards on request in writing, for the following purposes:

1. Making payments for the training sessions on implementing desegregation in their schools, and 
2. Making payments to the expert agents from the Department of Education for their expert advice and guidance. 

The Commissioner makes grants after taking into consideration various factors like the financial condition of the institution, nature and degree of training sessions conducted, etc. 

The Attorney-General is vested with the power and responsibility to receive and address complaints in writing from a student, group of students, or their parents stating discrimination or denial of admission to any public school on the basis of racial discrimination. The Attorney-General has the right to inspect and check the merits of the case. If the public school is practicing desegregation and racial discrimination in the opinion of the Attorney-General, the Attorney-General is entitled to institute a civil suit against it in the appropriate District Court of the United States. Such a civil suit is instituted in the name of the United States as the applicant. Before instituting such a suit, the Attorney-General gives the school administration an opportunity to make amends. If they fail to comply, the suit is instituted. The Attorney-General also provides legal assistance or costs to maintain legal proceedings for a person who is unable to do so. 

Title V: Civil Rights Commission

Title V of the Act makes provisions for the establishment of a Civil Rights Commission in the United States. The Commission is vested with the duty to ensure nondiscrimination, desegregation, and racial equality in the United States. The Commission performs the following duties under Title V:

1. Investigate matters relating to the right to vote of American citizens. It is the duty of the Commission to ensure that nobody is denied voting rights on the basis of their race, colour, origin, etc. If a complaint is made to the Commission, he shall investigate it and ensure justice.
2. The Commission must ensure people’s legal protection under the Constitution and that nobody is discriminated against on the basis of race, colour, etc. It is the duty of the Commission to ensure the administration of justice.
3. The Commission can seek interference of the federal laws and the Federal Government to ensure equal protection of law to every citizen irrespective of their race, colour, nationality, or religion. 
4. The Commission acts as a national clearinghouse of information on cases dealing with granting equal protection of laws on the basis of race, religion, nationality, origin, colour, etc. 
5. Investigate matters of alleged unlawful activities during the elections that denied the citizens their voting rights. 
6. The Commission can make as many subcommittees and advisory committees, etc. as it deems fit to carry out the objective of the Civil Rights Act, 1964. 

Title VI: Nondiscrimination in Federally Assisted Programs

Title VI states that no person shall be denied federal financial assistance in participating or benefitting from the provisions of the federally assisted programs on the basis of their race, colour, or origin. The departments of the Federal Government involved in federal financial aid in form of grants, loans or other forms of aid must ensure nondiscrimination in their policies and programs. The rules and regulations made by the departments and organs of government involved in federally assisted programs must first be approved by the President of the United States. If the rules and regulations are found to not be complying with the Constitution and with the provisions of the Civil Rights Act of 1964, they are liable to be struck down. The courts also have the power of judicial review to assess the nature of these departmental rules and ensure nondiscrimination. An aggrieved person can institute a lawsuit under Section 10 of the Administrative Procedures Act (1946) to obtain a judicial review of the regulations. Title VI essentially protects people from discrimination from the financial funds’ authorities and departments. 

In Lau v. Nichols (1974), the US Supreme Court ruled that a school in California that was receiving federal funds to provide English courses to Chinese students must perform this function properly. The San Francisco Unified School District (SFUSD) had approximately 2,900 Chinese enrolled students who needed supplementary English language education. The school made provisions for providing the course to only 1,000 of those students and the others were denied the facility. The Court held the San Francisco school to be violative of Title VI of the Civil Rights Act of 1964. The Court reiterated that it was the duty of the federally funded school to provide the courses to all Chinese students alike under the provisions of Title VI.  

In Canon v. University of Chicago (1979), a female student was denied enrollment in the federally funded medical education program at the University of Chicago. The District Court dismissed her petition stating that no private remedy is available under Title IX of this Act. The Court of Appeals was also of the opinion that no private remedy is specifically available under the Act. The US Supreme Court held that the lawsuit of the petitioner is maintainable even in the absence of a private remedy expressly provided under Title IX of the Act. The Court stated that Title IX provides for nondiscrimination on the basis of gender. The Court, speaking on legislative history, stated that Title IX was drafted after Title VI with the intent that the two are interrelated and shall be enforced in a similar manner. Further, Title VI in fact provides a private remedy. Enforcement of a private remedy in the given case will only enhance the system of justice and further the intent of the legislation. It will provide protection against discriminatory practices. It is the duty of the Federal Government to ensure nondiscrimination on the basis of sex. If a federally funded medical program will deny enrollment on the basis of gender discrimination, it will defeat the intent of the legislation. The Court held that Title VI gives power to the federal authorities to stop the funding for the reason of discrimination in the funded programs and this, in fact, is a private remedy.

In Alexander v. Sandoval (2001) the US Supreme Court held that Title VI of the Act makes provisions for nondiscrimination in federally assisted programs. It prohibits discrimination on the basis of race, colour, religion, etc. It provides protection against discrimination from authorities and departments that are financially funded by the Federal Government. No evidence is needed to prove the impact of the discriminating act to prohibit it. Title VI prohibits intentional discrimination. 

In Gratz v. Bollinger (2003), the Rehnquist Court spoke about the Equal Protection Clause inserted via the 14th Constitutional Amendment. The Court stated that violation of the Equal Protection Clause is also a violation of Title VI of the Civil Rights Act of 1964. The University of Michigan was in question in the instant case. The University’s Office of Undergraduate Admissions (OUA) had set criteria for evaluating students seeking admission to the University. One such criterion was on the basis of the race of the students. The OUA made a list of students who could be categorised as ‘underrepresented minorities.’ The students who qualified for this list were given additional consideration and 20 extra points in the evaluation procedures. Two students of Caucasian descent in the state of Michigan were denied admission. Hence, the lawsuit was filed complaining about the evaluation process being discriminative. The Court held the evaluation process to be discriminative. The Court held that it did not meet the proper scrutiny standards. 

Title VII: Equal Employment Opportunity

Title VII ensures equal employment opportunities to US citizens irrespective of their race, colour, origin, nationality, etc. It does so by making a list of actions that shall be considered unlawful employment practices at the employer’s end. They are:

1. If the employer denies employment or rejects an application on the basis of their race, colour, origin, caste, sex, etc., and not on a merit basis, such rejection or denial is unlawful as per the provisions of Title VII of the Act. 
2. If an employer discriminates in paying salary, compensation, or discriminates in employment terms and conditions, and privileges on the basis of their race, colour, origin, etc., such act shall be unlawful under Title VII of the Act. 
3. If an employer limits opportunities for an employee or practices segregation on the basis of their colour, race, sex, origin, etc., it is unlawful under Title VII of this Act. 
4. If an employee’s status in his workplace is determined by the race he belongs to or by other similar discriminative factors, it is unlawful under this title. 
5. If an employment agency refuses to refer an employee on the basis of the discriminative grounds of colour, race, sex, etc., it shall be unlawful under the provisions of Title VII. 

If a labour organisation refuses membership or denies any of the abovementioned opportunities to an employee on the basis of their race, colour, origin, etc., it shall be unlawful under the provisions of Title VII. If an employer, labour organization, or agency makes an ad that grants employment or entry to an employee on grounds of qualifications that are based on their sex, colour, race, etc., it shall be unlawful. 

Title VII further makes provisions for the establishment of an Equal Employment Opportunity Commission to monitor and ensure the implementation of the laws under Title VII. It shall be a competent authority for filing complaints and addressing issues related to discrimination in employment opportunities. 

In Internation Union, United Automotive Workers v. Johnson Controls (1991), the Supreme Court stated that discriminating against a woman in the workplace and employment opportunities for the reason of her being pregnant is unlawful under Title VII of the Civil Rights Act of 1964. There is only one exception brought to this general rule of Title VII. Under the Pregnancy Discrimination Act (1978), an exception has been recognised that a pregnant woman can be denied employment opportunity only if she shows an inability to work as per the normally expected standards. In the instant case, Johnson Controls had a foetal-protection policy under which it denied employment to pregnant women or fertile women who are capable of getting pregnant in its factory that involved lead exposure. The policy was implemented to ensure the safety of pregnant or potentially pregnant women but a lawsuit was instituted against this policy to be discriminative on the basis of sex. The Court held that this policy was violative of Title VII of the Civil Rights Act of 1964 as it discriminated on the basis of sex and pregnancy. The Court stated that the danger from exposure does not validate the discrimination. The policy was held not to be gender neutral. 

In Griggs v. Duke Power Company (1971), the US Supreme Court held that the eligibility criteria for intelligence tests to get a job at a plant were irrelevant. The Court recognised these tests as arbitrary and unnecessary barriers to employment opportunities. Thus, the eligibility test of the plant was held to be violative of Title VII. 

In the City of Los Angeles Department of Water and Power v. Manhart (1978), the US Supreme Court held that the department’s policy mandated female employees to make more contributions to the department’s employee pension fund than male employees stating that women live longer than men. This policy was held to be discriminatory and violative of Title VII of the Civil Rights Act of 1964. 

In Meritor Savings Bank v. Vinson (1986), the US Supreme Court held that sexual harassment of an employee at work would also constitute discrimination on the basis of sex under Title VII of this Act. The form of sexual abuse in the instant case involved creating a hostile environment for the employee for not engaging in sexual favors. The Court held that sexual harassment in the form of creating a hostile environment is a violation of Title VII. It can very well be termed as a form of discrimination on the basis of sex. The Equal Employment Opportunity title does not only imply economic discrimination. It also takes into account non-economic discrimination.

In Ricci v. DeStefano (2009) the US Supreme Court held that the act of the fire department at New Haven that granted promotions only to white firefighters was violative of Title VII of the Civil Rights Act, 1964. The department was clearly involved in racial discrimination and promoted only white men stating that they were better at work. This was done in the form of a promotional examination conducted by the department where 77 employees took part. Everyone except the 19 Africans got promoted. 

Title VIII: Registration and voting statistics

Under Title VIII, on the advice and intimation of the Commission on Civil Rights, the Secretary of Commerce is vested with the duty to conduct surveys and make a report on the intimated geographical areas of the voting registration and a statistical report on voting. This survey shall make a count on the number of people voting in a particular geographical area in order to make an observation on the number of people voting who belong to different races, colours, classes, ethnic groups, national origins, etc. The survey shall enable an understanding of the pattern of registration of voting applications and the extent of nondiscrimination followed. The survey would make a statistical study on racially discriminated people and their developments in exercising their right to vote. The survey would be conducted without harming the confidentiality of elections. No person shall be forced to reveal their political choices, race, colour, etc., without their consent.

Title IX: Intervention and procedure after removal of cases

If a case is pending in any court of law in the United States, and the nature of the case is that of civil rights, the Attorney-General has the power to intervene. The nature of the case is that it deals with the provisions of equal protection before the law and it is being denied to a party of the case by another. Such denial is on the basis of sex, race, colour, origin, etc. In this situation, if the case is pending in any US Court, the Attorney-General is vested with the right to intervene. Thus, equal protection of the law is upheld through Title IX of the Civil Rights Act of 1964 as well as through the 14th Constitutional Amendment Act. Title IX upholds it by vesting the powers on the Attorney-General to open pending cases in the name of the state. The Attorney-General intervenes in the name of the state when he is satisfied that the case is of public importance.

Title X: Community relations service

Title X makes provisions for a Community relations service under the US Department of Commerce. The service is headed by a director who is appointed by the US President. This was established with the advice of the Senate for a term of 4 years. The Director looks into the functioning of the service and also appoints other members. He sets rules and regulations for the working of the service. 

In Goldsby v. Carnes (1973), the Community relations service helped the county jail in Missouri in establishing and making provisions for necessary living conditions for the prisoners. This helped in determining the rights and privileges of the prisoners,and the responsibilities of the jail authorities to provide them with proper living conditions. 

In Hernandez v. Erlenbusch (1973) the Community relations service provided assistance in the judgement where a tavern bar in Forest Grove was found guilty of violating the Civil Rights Act (1964). The tavern bar’s employees only spoke Spanish, and this was held to be a form of racial discrimination towards others who did not speak and understand Spanish. 

Title XI: Miscellaneous 

Title XI talks about certain miscellaneous provisions within the ambit of the Civil Rights Act of 1964. Title XI says:

1. In criminal contempt cases, if the accused wishes, he can demand to be tried by a jury. This is applicable to cases of criminal contempt arising out of Title II, III, IV, V, VI, or VII of the Act. The maximum limit of fines that could be imposed in these cases is $1,000 and imprisonment of up to 6 months. Penalty under this provision shall not extend to cases of criminal contempt occurring in the court unless such act is done intentionally. 
2. The courts shall not exercise double jeopardy. The principle of double jeopardy means that a person cannot be punished twice for the same crime under the laws of the United States.
3.  The Civil Rights Act of 1964 would not deny or impair the rights of the Attorney-General, the United States, or any agency or officer of state to interfere in any ongoing or pending proceedings.
4. If any part of the Civil Rights Act of 1964 is invalidated on any day in the future, such invalidation would not make the whole legislation invalid. It shall continue to remain valid as far as it is consistent with the state laws and the US Constitution. 

Impact of LGBTQ+ rights in the Civil Rights Act of 1964

With time, the rights of people belonging to the LGBTQ+ community started gaining societal importance. It is no hidden fact that these people have been oppressed and humiliated for decades. They have been called homophobic names, harassed, and made fun of, and their sexual identity has been called a disease. The US Courts did a commendable job in several judicial pronouncements as they recognised the rights of the LGBTQ+ community affirmatively and included it within the ambit of the Civil Rights Act of 1964 at par with other civil rights. 

Even though the issue has gained momentum in recent years, the US Supreme Court gave a landmark judgement in 1998, recognising the LGBTQ+ community’s rights. In Joseph Oncale v. Sundowner Offshore Services (1998), the petitioner was aggrieved by the homophobic behavior and abuses of his co-workers. He was made fun of and called names by the department members. He was repeatedly threatened with rape threats. He had to resign from his job due to these threats and abuses, with a fear that he would be raped or forced to have sexual intercourse. This case came after the Meritor Savings Bank v. Vinson’s judgement (cited above) that established that discrimination from equal employment opportunities which is punishable under Title VII of the Civil Rights Act, 1964 also included discrimination on the basis of sex. Following this judgement, the Supreme Court in the instant case ruled that the rule of nondiscrimination on the basis of sex applied to men and women alike. The Court stated that Title VII of this Act also includes same-sex sexual harassment within the ambit of discrimination on the basis of sex. To establish this act of sexual harassment as discrimination on the basis of sex, the Court relied on the judgement of Harris v. Forklift Systems, Inc. (1993), where it was held that discriminative intimations, ridicule, and insults create an employment environment for the employee which is unsuitable for working. This could be categorised as a ‘hostile working environment.’ Thus, this violates Title VII of the Act for discriminating on the basis of sex. 

In Bostock v. Clayton, County, Georgia (2020), the respondents fired an old employee in the organisation for belonging to the LGBTQ+ community. Bostock was fired stating that he was ‘unbecoming’ a county employee when he came out in public as a trans person. The US Supreme Court held that this act was violative of Title VII of the Civil Rights Act of 1964 as it discriminated on the basis of sex and denied employment to a long-term employee. Such an act was held unlawful under Title VII. 

A similar judgement was pronounced in the case of Altitude Express, Inc. v. Zarda (2020), where an employee was fired merely on the ground that he was a transgender. The Roberts Court while ruling in favour of the aggrieved stated that such an action constituted discrimination on the basis of sex and denied equal employment opportunities. Thus, it violated Title VII of the Civil Rights Act (1964). Also, in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission (2020), an employee filed a complaint with the EEOC as he was fired from Harris Funeral Homes as soon as he revealed that he belonged to the LGBTQ+ community. The Commission held it to be violative of Title VII of the Civil Rights Act (1964).

Other civil rights legislation in the U.S.

Apart from the Civil Rights Act of 1964, civil rights in the US are guaranteed through some other legislation as well. Those are:

Voting Rights Act of 1965

The Voting Rights Act of 1965 came as a result of the Civil Rights Act of 1964. While the Civil Rights Act of 1964 provided and promoted equal voting and registration rights and procedures for all Americans alike, the Voting Rights Act of 1965 banned literacy tests on voters. It made provisions for federal monitoring and scrutiny in areas where white Americans constituted less than half the population. This was provisioned in order to ensure that Black Americans are treated equally in their applications and voter registrations. It also empowered the attorney-general to monitor the local elections and poll taxes. 

Fair Housing Act of 1968

The Fair Housing Act of 1968 was signed and enacted under the Presidentship of President Lyndon Johnson. It was enacted to ensure nondiscrimination on the basis of sex, colour, race, origin, religion, etc., in buying, renting, brokering, or selling houses.

The Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 was enacted to forbid discrimination against people with disabilities in the US. It makes provisions for forbidding such discriminations in public places, public accommodations and transportations, public schools and education, job opportunities, etc. It advocates for equal opportunities and equal treatment for people with disabilities in all sectors of the US. 

The Employment and Non-Discrimination Act of 2013

The Employment and Nondiscrimination Act of 2013 is a US legislation designed to ensure equality in employment opportunities and promote non-discrimination. It ensures that nobody is discriminated against in employment opportunities on the basis of their sex, race, colour, sexual orientation or gender identity. The Act penalizes any act of discrimination and deems it unlawful for an employer to discriminate against an employee on the basis of their sexual orientation. This Act also protects the rights of the LGBTQ+ community and promotes equality and equal opportunities for them.

Where to file a complaint?

Apart from adjudication in a court of law, a complaint for violation of civil rights guaranteed under the civil rights legislation can be filed with the following authorities and departments of the US:

1. A complaint about discrimination in educational institutions can be filed at the Office of Civil Rights (OCR).
2. A complaint against discrimination in employment opportunities can be filed with the Equal Employment Opportunities Commission (EEOC).
3. A complaint against discrimination in availing healthcare facilities can be filed with the Department of Health and Human Services (HHS).
4. A criminal complaint against crimes like human trafficking or other hate crimes is filed at the US Department of Justice (Civil Rights Division). 

Conclusion

The Civil Rights Act of 1964 came after a long struggle by theorists, lawmakers, politicians, activists, and citizens alike. It is one of the most reformative legislation in the history of civil rights laws in the US and has brought many positive changes since its implementation. It continues to end long years of struggle and plight for people around America. Ancient America has been infamous for its practice of racial discrimination and segregation. Racial discrimination still prevails in bits and tiny specs here and there in the States. Thus, the legislation continues to serve its purpose and ensure justice for people. It promotes nondiscrimination and equality. It guarantees equal protection under the law to all American citizens.

Frequently Asked Questions (FAQs)

What is the major difference brought to the preexisting provision Civil Rights Act of 1964 by the Voting Rights Act of 1965?

The Civil Rights Act of 1964 did not ban the literacy tests conducted for the purpose of assessing an individual. It was done as a qualifying test passing which made people eligible to vote. The 1965 Voting Rights Act banned this literacy test in the United States. 

What civil rights are addressed in the Civil Rights Act of 1964?

The Civil Rights Act of 1964 addresses civil rights such as the right to vote, the right to education, the right to equal employment opportunities, equal protection before law, etc. 

Name a few civil rights issues that still persist in society.

Inequality, poverty, lack of opportunities, and looking down on people belonging to a certain class of society are some issues that still persist in society in the 21st century. 

References

• https://web.archive.org/web/20141206191323/http://www.congresslink.org/print_basics_histmats_civilrights64text.htm 
• https://www.archives.gov/milestone-documents/civil-rights-act 
• https://www.dol.gov/agencies/oasam/civil-rights-center/statutes/civil-rights-act-of-1964 
• https://web.archive.org/web/20200521120444/https://www.crmvet.org/tim/timhis64.htm#1964cra64h 
• https://millercenter.org/the-presidency/educational-resources/the-civil-rights-act-of-1964 
• https://www.loc.gov/exhibits/civil-rights-act/civil-rights-act-of-1964.html 
• https://www.jfklibrary.org/learn/about-jfk/jfk-in-history/civil-rights-movement 

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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the enactment of the Nuremberg laws and their aftermath under the Nazi regime. It further talks about the enactment of the Nuremberg Charter and the establishment of the Nuremberg International Military Tribunal and their significance in the evolution of international law. 

It has been published by Rachit Garg.

Introduction 

The enactment of the Nuremberg laws could be deemed as one of the most defining moments in the Nazi regime, as it was indeed the stepping stone towards creating a legal, state-sponsored anti-racial regime that led to the persecution of Jews in Germany. By studying these laws, one can understand what happens if the rule of law is superseded by an abuse of power by the government.

These laws not only discriminated against people on the basis of their race but also divided the German nation into two parts, wherein people who had been living together in peace turned on each other overnight. The Jews along with other minorities were gradually excluded from the German society and over time, this exclusion took the form of a nationwide genocide, commonly referred to as the ‘Holocaust’.

Now that we have a brief background about the Nuremberg laws and their consequences, let us look into these concepts in detail.

The Nuremberg laws

It was in 1933 that the Nazis took control of Germany. With the Nazis came their ideology of purity in German blood and creating a nation for the purebloods. It was this ideology that led to the religious persecution of the Jews in the country along with other minority populations. However, this was a step-by-step process.

In 1933, Jews were prohibited from holding public offices or any position with respect to civil services in Germany. Then, the Jewish immigrants were stripped off of their German citizenship following which the Jews across the country were denied jobs in the press, radio stations, stock exchanges, etc. However, fearing internal and external opposition to its actions, the Nazi regime did not take any drastic steps toward the extermination of Jews. In 1935, the Nazis publicly announced their intention to violate the Treaty of Versailles through nuclear rearmament. Following this, the Nazis became more radical in their approach toward the establishment of a Jew-free Germany.

It was on September 15, 1935, that the Nazi party leaders announced the enactment of two laws that were based on the ideology of creating a pure-blood Germany. These laws were referred to as the Nuremberg laws because they were announced during an annual rally that was held in Nuremberg. The enactment of these laws was the first step taken by the Nazi regime to legally allow racial discrimination in Germany and to take away the rights of Jews. This further paved the way for the religious persecution of Jews in the following years. The Nuremberg laws consisted of two enactments, firstly, the Law for the Protection of German Blood and Honour and secondly, the Reich Citizenship Law.

Now that we have understood the reasons behind the enactment of the Nuremberg laws, let us try and understand what these laws dealt with in general.

Law for the Protection of German Blood and Honour

The Nazis were of the notion that German blood was pure and it was upon them to ensure the purity of German blood in future generations. They were determined to create the German nation that was founded on true German blood, untainted by the Jews. This was one of the foremost reasons for the enactment of the Law for the Protection of German Blood and Honour. Now let us try and understand the provisions of this law.

Article 1

It strictly prohibited all marriages between German nationals and Jews.  It further stated that any existing marriage between a German national and a Jew would be deemed invalid, thus giving the provision a retrospective effect as well. Further, this provision also gave this law an extra-territorial jurisdiction by invalidating all German-Jew marriages conclreplauded outside the German territories.

Article 2

It prohibited all extramarital relationships between Jews and German nationals.

Article 3

It prohibited Jews from employing female German nationals under the age of 45 for household chores.

Article 4

This provision restricted Jews from flying the German national flag or the Reich national flag. They were also prohibited from displaying Reich colours in any form. However, Jews were allowed to display Jewish colours in any form.

 Article 5

This Article consisted of penal provisions for violating the Law for the Protection of German Blood and Honour. A violation of Article 1 was punishable with a prison sentence, while a violation of Article 2 was punishable with either a prison sentence or a jail term. A violation of Articles 3 and 4 was punishable with a 1-year jail term or a fine or with either of the aforesaid punishments for violations of Articles 1 or 2.

Article 6

This provision empowered the Reich Minister of the Interior to issue relations, both administrative and legal for implementing this law.

Reich Citizenship Law

This law was enacted with the aim of defining who is a German national and who is a Jew and therefore provided clarity on this matter and helped in the better implementation of the Law for the Protection of German Blood and Honour. Now let us try and understand the provisions of this law.

Article 1

This provision defined who is a Reich national. Any person who is a German national and who had the right to vote in the Reichstag elections at the time the Nuremberg Citizenship law came into effect was deemed to be a citizen of the Reich. Further, the Reich Minister of Interior was given the authority to grant preliminary citizenship to German nationals with the option of withdrawing such citizenship at any time.

Article 2

This provision gave express voting rights and the right to hold a public office only to Reich citizens. Further, the Reich Minister of Interior was empowered to make exceptions for allowing any person, other than a Reich citizen to hold a public office.

Article 3

This provision dealt with the citizenship and voting rights of Jews. It expressly prohibited Jews from becoming Reich citizens and disallowed them from voting in elections or holding public offices. It further directed all Jews who were holding public office to retire on or before December 13, 1935. However, this provision had the added benefit of providing a pension to all such Jews who had participated in the world war on behalf of Germany or its allies.

The affairs of Jewish religious organisations and conditions of service of teachers in Jewish schools were exempted from the aforesaid provisions till new rules were made in this regard.

Article 4

This provision defined a Jew as the following:

1. Any person who is a descendant of 3 generations of fully racial Jews.
2. Any person who is a descendant of two fully racial Jewish parents.
3. Any person who is married to a Jewish person at the time of enactment or subsequent to the enactment of this law.
4. Any child born out of a Jewish marriage that was concluded after the enactment of the Law for the Protection of German Blood and Honour
5. Any child born out of an extramarital relationship between a German national and a Jew.

Article 5

This provision exempted the requirement of being a German national for all other purposes, except those that were specifically provided under this law and the Law for the Protection of German Blood and Honour.

Article 6

This provision empowered the Reich Chancellor to grant exemptions from the provisions under this law.

Other laws that backed the Nuremberg laws

Although the Nuremberg laws expressly dealt with Jews, they were impliedly applicable to all other minority communities in Germany as well. This included Blacks, Roma and other minority communities who were living within the territory of Germany and thus all the minority communities were affected at large by the enactment of these laws. It is also notable that, apart from the Nuremberg laws, during World War II, many countries that were allied to the Nazi regime had enacted similar laws to oppress Jews and other minorities in their countries. This included the enactment of anti-Jewish laws by Italy, France, Bulgaria, Romania, etc.

In the following years, multiple laws were enacted by the Nazis to further their ideology. These included the Law on the Alteration of Family and Personal Names, the Decree on Passports of Jews, and the Police Regulation on the Marking of Jews. Let us now discuss these laws in detail.

Law on the Alteration of Family and Personal Names

This law was enacted on August 17, 1938. This law primarily aimed at creating a new identity for Jews in Germany by giving them new first names. Under this law, any Jew who had the first name of a non-Jewish origin had to compulsorily adopt a new additional first name, i.e., Israel in cases of all men and Sara in cases of all women. Further, all Jews had to mandatorily carry an identity card with them which contained information about their cultural origin and heritage.  

Decree on Passports of Jews

This law was enacted on October 5, 1938. This law primarily dealt with invalidating all German passports that were issued to Jews and obligated them to surrender their passports to the appropriate authority. For revalidating the passports, the German Jews had to get the letter ‘J’ in red stamped on their passports.  

Police Regulation on the Marking of Jews

This law was enacted on September 1, 1941, and was applicable to all German Jews above the age of six. This law mandated that all Jews in Germany should wear a yellow badge whenever they were in public. This was a special badge that was palm-size and in the shape of a six-pointed star and had black outlining. Another specification was that the term ‘Jude’, i.e., the German word for Jew, was to be imprinted on the centre of this star. This badge was to be worn on the left side of their clothing at all times when in public.

The aftermath of the Nuremberg laws

In order to convince the German nationals, the Nazi regime put forth the ideology that if Germans and Jews continued to be together, such a mix of races would lead to race defilement and such couples would not have healthy children. They convinced the Germans that in order to have pure Aryan children and for the Aryan bloodline to continue, the pure-blood Germans should stay together and avoid any form of relationship with the Jews.

Soon after, mixed couples were being harassed on a daily basis and several Germans were put on trial on account of race defilement. People started attacking and parading such mixed couples around the town. These couples were also under the fear of constant arrests. Germans of Jewish descent were also arrested and harassed as they lacked pure blood. Several Jewish institutions were also attacked time and again.

After the implementation of the laws, things only worsened. The police departments and justice systems started turning a blind eye towards the problems of Jews and started arresting and prosecuting, and punishing Jews even for petty things like staring at a police official. Germans involved in race defilement were harshly punished along with their Jewish counterparts. Being a state-sponsored dictate, all the German institutions were imbibed with the ideology of racial supremacy and thus Jews and other minorities were arrested and sent to concentration camps even without any proper trial.

In 1939, the Germans started to build Ghettos wherein most of the Jewish population along with other minorities were concentrated. Due to the dense population in a small area, famine and diseases spread quickly. The people who survived were shot and killed inside the ghettos themselves. It was in 1942 that six extermination camps were set across Germany and German-occupied Poland. These camps were actually concentration camps where Jews and other minorities were brought, tortured, and killed in gas chambers. In total, the Nazi regime killed over 6 million Jews which amounted to almost two-thirds of the European Jewish population.

The Nuremberg International Military Tribunal

With the Second World War coming to an end in the year 1945, the world had witnessed widespread human rights violations. From the racial persecution of Jews and other minorities in Germany to the war crimes committed during the war, the world had seen death and destruction at its worst with an estimated number of 40,000,000 to 50,000,000 people dying during the war. The question that loomed over the minds of the society at large was whether these war crimes would be punished and if yes, who would have the jurisdiction to punish these crimes. The answer to this question came with the establishment of the Nuremberg International Military Tribunal (NIMT) and the signing of the Nuremberg Charter by the allied and axial powers in the year 1945. The NIMT was established with the primary goal of conducting trials against people who had instigated, abetted or committed crimes against humanity during the Second World War. The NIMT was established with the ideology that the force of the law should prevail over the law of force.   

The Nuremberg Charter was signed in London on 8th August 1945. It was an agreement between the United States of America, the United Kingdom, and the Soviet Union. The aim of this Agreement was to establish an ad hoc tribunal for the punishment of the major war criminals who were part of the European axis. The Charter for the Nuremberg International Military Tribunal, commonly referred to as the Nuremberg Charter, was an annexure to this Agreement.  The salient features of the Agreement have been listed below.

Provisions of the Agreement 

Article 1

An International Military Tribunal should be established for punishing war criminals, irrespective of the jurisdiction in which the crimes were committed.

Article 2

The constitution and jurisdiction of the International Military Tribunal shall be in accordance with the provisions of the Charter. 

Article 3

Each party to the Agreement shall take steps to ensure that the war criminals who have been detained by them are produced for investigation and trial before the International Military Tribunal. They should also endeavour to produce for investigation and trial those criminals who are not being detained in their territories. 

Article 4

The provisions of this Agreement shall be in addition to and not prejudicial to the provisions of the Moscow Declaration regarding the return of war criminals to the countries in which they committed the war crimes. 

Article 5

Any country which is part of the United Nations may choose to adhere to the provisions of this Agreement by issuing a notice to the United Kingdom for the same. 

Article 6

The provisions of this Agreement shall be in addition to and not prejudicial to the jurisdiction of any national court that has been established to try war criminals.

Article 7

The Agreement was to remain in force for an initial period of one year. Any party to the Agreement could terminate the same after the initial period of one year by giving a one-month notice. 

What followed this Agreement was the Charter of the International Military Tribunal, i.e., the provisions that governed the functioning of the infamous Nuremberg International Military Tribunal. Let us now try and understand the provisions of this Charter.  

The Nuremberg Charter

The Charter for the Nuremberg International Military Tribunal governs the composition,  jurisdiction, and functioning of the Nuremberg International Military Tribunal. The provisions of the Agreement have been listed below.

The Constitution of the International Military Tribunal

Articles 1 to 5 of the Charter deal with the constitution of the IMT. Article 1 states that the object behind the enactment of the Tribunal, i.e., for conducting just and proper trials for the punishment of major war criminals. Article 2 provides that the IMT should have 4 main members and an alternate member for each main member who will act in the absence of the main members. These members are to be appointed by each signatory to the Agreement. Article 3 provides that the competence of the members cannot be challenged during the trial by the prosecution. Article 4 provides that the members should appoint a President among themselves for the purpose of casting the decisive votes in case of a tie between the members. Further, it provided that to constitute a quorum for every trial, all four members should be present. Article 5 provides for the establishment of identical tribunals if required.

Jurisdiction and general principles 

Articles 6 to 13 deal with the jurisdiction of the IMT and the general principles it should follow during the trials. Article 6 deals with the primary jurisdiction of the tribunal and provides for the types of crimes that attract individual responsibility and can be tried by the IMT. Three types of crimes were included herein, namely, crimes against peace, war crimes, and crimes against humanity. These crimes have been explained in brief below.

Crimes against peace

This includes planning or conspiring for initiating or waging a war of aggression or a war that was in violation of international treaties, principles and agreements. 

War crimes

In a broad sense, war crimes included all violations of laws or customs of war. It included murder and ill-treatment of slave labours, civilians, prisoners of war, persons on sea and hostages. It also included the wilful destruction of public and private properties, cities and villages when such destruction is not warranted by military necessity. 

Crimes against humanity 

It included the acts of murder, extermination, enslavement, and other inhumane acts that were committed against civilians, both before and during the war. Furthermore, it included all forms of persecution, whether based on racial, political or religious grounds.   

Article 7 provides that the official position that was held by the war criminal shall not be considered while determining the punishment. Article 8 provides that if any person has committed a crime due to an order from the government or his superior, he may be subjected to a mitigated punishment, if required, in the true spirit of justice. Article 9 empowers the IMT to declare any organisation as a criminal organisation while trying any individual who had committed a war crime while being a part of that organisation. Article 10 provides that once an organisation is declared as a criminal organisation, the parties to this Agreement will have the authority to try other individuals who were members of this organisation before their national or military courts on the ground of them being members of such criminal organisations. Article 11 provided that those individuals who were being tried under Article 10, could be charged and punished for other crimes as well by the national or military courts. These punishments were to be in addition to the punishments imposed by the IMT. Article 11 empowered IMT to try a person ex parte in his absence and also to award punishments if the individual could not be found. Article 13 empowered the IMT to form its own procedural rules. 

Committee for investigation and prosecution of major war criminals

Articles 14 and 15 provided for the constitution of a committee for the investigation and prosecution of major war criminals. Article 14 empowers each party to the Agreement to appoint a chief prosecutor for the purpose of investigating and prosecuting war criminals. These chief prosecutors had to form a committee and this committee had multiple duties including settling the final designation of war criminals, approving and lodging indictments against them, and recommending draft rules of procedure for the IMT. Article 15 imposed individual duties on the chief prosecutors. This included investigation and collection of evidence, examination of witnesses, prosecution of war criminals, preparing indictment for approval by the committee and other duties as may be necessary. 

Fair trials for the war criminals

Article 16 established a procedure that ensures that war criminals are subjected to a fair trial. This procedure included the following details:

1. The indictment should include the details of all charges that are levelled against the defendant. This document should be provided to the defendant as well.
2. The defendant shall have the right to give an explanation regarding the charges levelled against him during the preliminary investigation.
3. The defendant should be capable of understanding the language of the preliminary investigation and the trial.
4. The defendant has the right to defend himself at the trial either by himself or by appointing a counsel.
5. The defendant has the right to produce evidence and cross-examine witnesses during the trial.

Powers of the Tribunal

Articles 17 to 25 deal with the powers of the IMT and the conduct of the trial by it. Article 17 gives the IMT the same powers as those of any national criminal court, i.e., the powers of summoning witnesses and requiring their attendance, interrogating the war criminal, requiring the production of documents, appointing officers for carrying out relevant duties, etc. Article 18 authorises the IMT to conduct summary trials for all the charges levelled against the defendant and to undertake any measure that is required for avoiding undue delay. Article 19 allowed the IMT to accept any evidence, irrespective of the form or manner of collection of evidence.  However, Article 20 provides that the prosecutor and defendant should inform the IMT about the source and nature of the evidence. Article 21 provides that the IMT shall not seek evidence regarding facts of common knowledge and shall consider the reports of the United Nations and any documents supplied by the committees of any country that is part of the allied powers.

Article 22 is the provision that gives the tribunal the name of Nuremberg as it provides that Berlin will act as the permanent seat of the IMT and the first trial shall be held in Nuremberg. Article 23 imposes a duty on the chief prosecutors to take part in every trial. Article 24 provides for the format in which the trial is to be conducted. The procedure has been listed below:

1. Each trial shall begin with an indictment that is to be read in the IMT.
2. The IMT asks the defendant whether or not he wants to plead guilty.
3. The opening statement of the prosecution.
4. Evidence submission by the parties. 
5. Interrogation and cross-examination of witnesses. 
6. Address by the defendant and the prosecution. 
7. Delivery of judgement by the IMT and imposition of punishment. 

Article 25 provides that the proceedings of the IMT should be conducted in English, French, Russian, the native language of the defendant.

Judgement and sentence

Articles 26 to 29 deal with the powers of the IMT to pass judgement and impose sentences. Article 26 provides that the judgements issued by the IMT shall be reasoned judgements and there shall be no appeal or review of the same. Article 27 authorises the IMT to issue a death sentence or any other appropriate punishment on conviction. Article 28 authorises the IMT to restore any stolen property under the possession of the defendant to the Control Council for Germany. Article 29 authorised the Control Council for Germany to carry out sentences. It also had the power to reduce sentences or increase them. However, the increased sentence could not be more severe than the sentence issued by the IMT. In case any fresh charge was discovered against the defendant after his conviction, the Control Council was to report the same to the committee of prosecutors. 

Expenses

Article 30 dealt with expenses and provided that the expenses of the IMT shall be borne out of the funds allocated for the maintenance of the Control Council for Germany.

The precedent of precedents

One of the main reasons for the widespread death and destruction caused by World War 2 was the absence of effective international law. Before the establishment of the Nuremberg IMT, there were no international courts or tribunals that were in place and thus, there was a vacuum in international law regarding precedents. This vacuum was effectively filled by the judgements passed by the Nuremberg IMT. One of the fundamental principles of natural law that were adopted by the tribunal was to provide a fair and effective trial to the criminals irrespective of the nature of the crimes committed by the war criminals. Also, an opportunity was given to the war criminals to prove their innocence, and they were only pronounced guilty if there was proper evidence suggesting the same. This supplemented the principles of a fair trial. Apart from this, the Nuremberg Charter is also credited with being the first instrument under international law that defined offences of an international character and provided for individual criminal responsibility for these offences. Seated in a country which was the frontier of the world war, the Nuremberg tribunal gave its first judgement a year after its Constitution on 1st October 1946. Out of the 22 Nazi war criminals who were part of the first trial at the Nuremberg IMT, 12 were sentenced to death, 7 were sentenced to imprisonment for 10 years to life, and 3 were acquitted. 

The Nuremberg Tribunal was founded on three fundamental principles of international law. The principles have been enumerated below:

1. International law prohibits all forms of war crimes, crimes against humanity, and the planning or waging of aggressive wars.
2. International law is not limited to imposing state liability but also imposes individual criminal responsibility on war criminals. 
3. Even though the war crime was committed as part of following orders of a superior or government, it does not absolve the individual from criminal responsibility. However, it may act as a mitigating circumstance when deciding the punishment for such an individual.   

Even though the Tribunal was founded on the aforesaid principles, during its term, it established 7 principles that became an important part not only of the development of criminal statutes in the future but also of the development of international criminal law as a whole. Let us now discuss these principles and their significance. 

The 7 Nuremberg principles

Principle I 

Any individual who performs an act that is deemed a crime under international law will be held liable for the same under the principles of international law. 

Principle II

Even if there has been no penalty prescribed for a crime under international law, any individual who commits such a crime will not be absolved of liability.

Principle III

Even though the war crime was committed as part of the duty of being the head of state or as part of the government does not absolve the individual from criminal responsibility under international law. 

Principle IV

Even though the war crime was committed as part of following orders of a superior or government, it does not absolve the individual from criminal responsibility. However, it may act as a mitigating circumstance when deciding the punishment for such an individual if he had the opportunity to exercise his moral choice before committing the crime. 

Principle V

Any individual who has committed a crime under international law has the right to a fair trial. 

Principle VI

The crimes punishable under international law are crimes against peace, war crimes, and crimes against humanity.

Principle VII

Aiding or abetting crimes against peace, war crimes, and crimes against humanity is also punishable under international law. 

Impact of the Nuremberg IMT on international law

The seven principles of law that were introduced by the Nuremberg IMT formed the core of multiple laws and tribunals that came later. It began with the enactment of the Convention on the Prevention and Punishment of the Crime of Genocide 1948, also referred to as the Genocide Convention. This Convention punished the killing of members of a group with the intention of exterminating a national, racial or religious group. The origins of this law can be traced to the definition of crimes against humanity as defined under the Nuremberg Charter. Similarly, the Geneva Convention of 1949dealt with the treatment of prisoners of war, a rule that can be traced back to the definition of war crimes under the Nuremberg Charter. Also, the second and third Geneva conventions have their roots in the Nuremberg Charter. Apart from these international treaties, multiple tribunals were incorporated on similar principles. This included the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the modern-day Internal Criminal Court (ICC) as well. 

With the aforesaid observations, one can conclude that the Nuremberg IMT played a crucial role in the development of international human rights laws as we know them today. The judgments of the Nuremberg IMT were referred to time and again by the International Criminal Tribunal for Rwanda and the Tokyo Tribunals as well. The definition of crimes against humanity brought forth the notion that notwithstanding the status quo or position a person used to hold at the time of the commission of a crime, he will be held liable. This notion empowered the Nuremberg IMT to try war criminals, including heads of state with ease and bring them to justice. Thus, it can be concluded that the Nuremberg Charter and the precedents set by the Nuremberg IMT have helped in the evolution of international criminal law, international human rights law, and also international law as a whole. 

Now that we have understood the Nuremberberg laws that led to the holocaust and the Nuremberg Charter that brought in a sense of justice in the post-war era, let us look into some of the cases that were dealt with by the Nuremberg International Military Tribunal. 

Trials under the Nuremberg International Military Tribunal

The primary objective of the Nuremberg IMT was to try the Nazi war criminals among others. These war criminals were charged on 4 counts, i.e., crimes against peace, war crimes, crimes against humanity and aiding, abetting, and conspiring to commit the aforesaid crimes. Let us now look at the first Nuremberg trial in detail. 

The first Nuremberg trial

Indictment of offences

On November 20 1945, the first Nuremberg trial was set in motion with the indictment of 24 Nazi war criminals. However, out of the 24, only 22 individuals were tried. This was because one of the criminals committed suicide in prison and the other suffered from mental and physical incapacity due to which he could not be tried. All the 22 war criminals on trial were indicted on two counts, i.e., conspiracy to wage a war and crimes against peace. Apart from these two counts, multiple individuals were indicted on two other counts as well, i.e., war crimes and crimes against humanity. The crimes against peace included the act of waging war, whereas war crimes included the acts of violations of the laws and customs of war, i.e., killing and torture of the prisoners of war, use of chemical weapons, etc. The crimes against humanity included the crimes committed by the Nazi criminals against the Jews and other ethnic minorities of Germany, i.e., the crime of racially persecuting millions of individuals from these communities in Ghettos and gas chambers. It also included the killing of the civilian population of the allied powers and the wilful destruction of property in the allied territories. The first day of the trial ended with the reading of the offences for which the criminals were being tried. 

The prosecution case

The prosecution sought to establish the criminal liability of the Nazi criminals on two grounds, i.e., the crimes committed by them and the mens-rea behind the commission of the crimes. The prosecutors then started to prove the involvement of the Nazi criminals in the conspiracy to wage the war and the waging of an aggressive war against all the allied powers, and for doing this, the prosecution relied on documentary evidence, i.e., a series of letters and other forms of communications that discussed in detail the involvement of the Nazi criminals in the offences they were indicted for. They also presented a series of witnesses to support their case. These witnesses and documents not only showed their involvement in the crimes but also showcased the horrors that were inflicted upon society in the form of concentration camps and unwarranted military actions. Several concentration camp victims were also produced as witnesses, and their testimony was recorded. 

The case of the defendants

In a surprising turn of events, all the Nazi criminals under trial pleaded not guilty in the beginning. They justified their actions on the basis of a two-fold argument. Firstly, they wanted to stay in power and would take any steps for achieving the same irrespective of the consequences; and secondly, they justified the concentration camps as a means to maintain law and order in the country. Only a few of the defendants showed an ounce of guilt during the cross-examinations as they accepted their mistakes and made public apologies for their actions. 

Judgement

After the conclusion of the closing arguments for both the defence and the prosecution. The prosecution in its closing argument countered all the points raised by the defence and made a mockery of their action to plead not guilty to all the charged offences. One of the defendants, Mr Albet Speer, even threatened the use of more powerful weapons against the world so as to stop any war from even beginning. 

Once the closing arguments were concluded, the judgement was pronounced. Firstly, the tribunal identified the individual who was deemed to be the acting force behind the war and other crimes that followed the war. This individual was Mr. Hermann Goering and he was pronounced guilty on all four charges. 

Sentences

Out of the 22 defendants, 11 were sentenced to death by hanging. Two were sentenced to life imprisonment, two were sentenced to 20 years imprisonment, one was sentenced to 15 years life imprisonment and one was sentenced to 10 years life imprisonment.

Conclusion

The Nazi regime not only controlled the state bodies but also influenced the German nationals to segregate themselves from the Jewish population. Along with a state-sponsored attack on minorities, community outrage played an important role in the events that led to the Holocaust. What can be understood from the above discussion is that even though the Jews and minorities lived under an oppressive regime prior to the enactment of the Nuremberg laws, they were not subject to community outrage and exclusion by the German nationals themselves. It was only after the enactment of the Nuremberg laws that the German society as a whole systematically excluded Jews from society. The community at large believed that the state-sponsored laws and attitude toward the Jews were acceptable and contributed towards the same. In the years that followed, the Nazi regime fell, hundreds of people who participated in the chain of events leading to the Holocaust were punished, and the Nuremberg laws met their end. With racial discrimination at its peak in Germany, the question that we should ask ourselves is that was it the state or the people who were responsible for the mass genocide of Jews and other minorities?

With the evolution of international law, one can still find the Nuremberg Charter at its epicentre. Today, the statute of the International Criminal Court has the principles of the Nuremberg Charter at its core. Thus, we can observe that the Nuremberg Charter has not lost its significance in the modern era. 

Frequently asked questions (FAQ’s)

What was the object behind the enactment of the Nuremberg laws?

The Nuremberg laws were enacted by the Nazi regime to oppress the minority community, especially Jews in Germany, and to create a race of pure blood Aryans. This was the first step that enforced discrimination legally in the country. 

Was Adolf Hitler tried by the Nuremberg IMT?

No, Adolf Hitler was not tried by the Nuremberg IMT because, after the defeat of the Nazi regime, he committed suicide by consuming a cyanide pill and shooting himself in the head in an underground bunker in Berlin. His body was then burnt and buried by his followers. His wife also committed suicide along with him. 

Whether the Nuremberg IMT faced any criticism?

The Nuremberg IMT faced criticism regarding its independence and impartiality. It was seen as a body that was established just to seek vengeance against the Nazi officers under the guise of justice. This is because the Tribunal did not look into the war crimes committed by the officers of the allied powers during the Second World War and only tried the Nazi war criminals.  

References

1. ARTICLE: Legalizing Hate: The Significance of the Nuremberg Laws and The Post-War Nuremberg Trials, 39 Loy. L.A. Int’l & Comp. L. Rev. 5
2. ARTICLE: The Nuremberg Symposium An International Legal Symposium on The Nuremberg Laws The Nuremberg Trials, 39 Loy. L.A. Int’l & Comp. L. Rev. 319
3. https://www.archives.gov/publications/prologue/2010/winter/nuremberg.html
4. https://www.britannica.com/topic/Nurnberg-Laws
5. https://encyclopedia.ushmm.org/content/en/article/the-nuremberg-race-laws
6. https://holocaustlearning.org.uk/latest/the-lesser-known-twelve-nuremberg-trials/
7. https://www.dw.com/en/nuremberg-trials-a-warning-to-war-criminals-and-dictators/a-55634256
8. https://www.facinghistory.org/holocaust-and-human-behavior/chapter-10/first-trial-nuremberg

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This article is written by Nishka Kamath. It throws light upon the Good Samaritan Laws in the United States along with their history, purpose, objectives, features, and ground rules, inter alia. It also explains the concept of Bad Samaritan Laws and has a discrete state-wise description of several Good Samaritan Laws in the US.

It has been published by Rachit Garg.

Introduction

Imagine you are out for a walk at your local park on a nice sunny evening with your dog and suddenly a person gets a heart stroke and falls right in front of you and hits their head on the sidewalk. What will you do? 

Will you be hesitant to help in the fear of getting prosecuted in case something goes wrong, or will you help the person readily? 

Unfortunately, in this era of litigation, many individuals have concerns about getting entangled in legal complications. Isn’t that a pity? Wouldn’t you rather save someone’s life instead of standing there spectating the view in the fear of the person in distress or their family prosecuting you afterwards?

Don’t worry, the Good Samaritan Law has got you covered. It is a law formulated to safeguard bystanders who volunteer to help an injured individual who is either in peril or wounded, or ill otherwise. Say for instance, if Mr. A performs a CPR (cardiopulmonary resuscitation) on an individual, say, Mr. B, who is unconscious with an attempt to revive them, but such an act leads to further injury, in such cases Mr. A will have some level of exemption from civil liability. Good Samaritan Laws were enacted in order to encourage people to get involved in such tragic circumstances without the fear of being sued in case their act accidentally results in causing harm or injury to that person or even death. 

Let’s have a brief overview of what exactly this law says and all the legal subjects associated with it. ​

Good Samaritan Law

The term ‘Good Samaritan Law’ refers to a kind of liability protection for individuals who come forward to assist somebody encountering a sudden injury or illness. However, it is only applicable to passersby who are simply doing it out of the goodness of their heart and does not involve individuals who are operating in a paid, professional capacity; for instance, an emergency service professional answering a call.  

An example of Good Samaritan Law

Say you are performing your daily chores at your office and a colleague of yours collapses on the floor and goes into cardiac arrest. Your office has an external defibrillator (AED machine) that you can use to try and restart the heart of your colleague, but you are reluctant to do so as you are not professionally trained for such actions. So, after a few moments of pauses, you arrive at an outcome that using the machine is the best opportunity to save the colleague’s life and, thus, use it on him. 

In this case, irrespective of the effect, you are immune to safety by your state’s Good Samaritan Law since you performed this activity with the best of your intent and capacity.  

Why does Good Samaritan Law exist

The main motto of Good Samaritan Law is to motivate individuals to step in and assist in cases when such an act can save a life.  

But sometimes, it is not enough to call for an emergency (911) and potter around waiting for the emergency professionals to come. Such professionals may, at times, take 8 to 15 minutes to reach the site and in certain circumstances, they might even take half an hour to arrive on the scene.  

This is where the Good Samaritan Law comes into play. It gives people the confidence that they can aid the ailing person without having to bother about legal retaliation.

Good Samaritan Law under different ordinances

Tort Law

As per the common law, a passerby is not morally compelled to assist any injured person, provided the injury was not caused by them. In Hurley v. Springfield (1901), the defendant was a family physician who for no reasonable reason, declined to render medical aid to the patient, even when he was notified that he was the only one to provide assistance. Here, the Court occurred to the conclusion that the defendant was not accountable, as he did not assume any duty to serve.  

Nevertheless, a Good Samaritan who has no duty to do so takes responsibility for a person in need, the Good Samaritan is presumed to have a reasonable duty of care while the injured person is in their charge. Similarly, if a Good Samaritan has taken charge, they are accountable for a duty of reasonable care to avoid imposing more harm to the person and thus putting him in a worse position than before the Good Samaritan took responsibility.  

Criminal Law 

Under criminal law, there is no legal duty created or established upon a sheer moral obligation. A legal duty to act requires more than being a Good Samaritan.  

In People v. Beardsley (1907), the defendant had an affair with a woman at his apartment, wherein, the woman after consuming morphine lost her life. The Court ultimately held that there was no duty to act on the defendant’s part as there were no special relations between the defendant and the woman. In order for the defendant to be held responsible, there must be a duty imposed either by law or by contract, and the error in performing the duty must be the sudden and direct factor that causes death. 

Civil Law 

Good Samaritan Laws provide civil immunity for a person who gives help and assists an injured person. Usually, such laws provide protection to a person whose aid or act is not reckless or negligent and who renders such aid without being compensated for it.  

Samaritan Law in the US

As asserted above, Good Samaritan Laws protect caregivers from being sued for medical errors, as long as the caregivers acted in a voluntary manner without any intentions of getting rewarded for such a deed. 

However, in the United States, the protection that Good Samaritan Laws provide is not unlimited and varies from state to state, which will be discussed further in brief. 

History and why were Good Samaritan Laws enacted

The title of the ‘Good Samaritan’ originates from the Bible from an occurrence wherein Jesus Christ confided in his followers how an injured person can be treated via a short moral story, commonly known as the ‘parable.’ They were named after the parable told in Luke 10:25-37 of the Bible. This story is recognized as the ‘Parable of the Good Samaritan.’ The Bible verses narrate the story of how service was provided by a traveller from Samaria to another traveller of a distinct religious and ethnic belief who had been beaten and looted by robbers. 

Enacted to safeguard doctors

The Good Samaritan Laws were originally enacted for the protection of physicians and others with medical training. Gradually, the verdicts of the courts and amends in the laws led to the inculcation of unskilled rescuers who provide help.  

There are certain laws that, to date, safeguard only medically trained rescuers, whereas other laws extend protection to any Good Samaritan Laws.    

Inclusion of all

Previously, the law was ratified keeping in mind only the medicinal professionals, but with the advancement of laws and changes in the legal system, the law now includes everyone else.

Purpose

The main purpose of the Good Samaritan Law is to motivate individuals to perform a certain action when they find themselves in a position of passerby during an accident. The law encourages the quality of being selfless in each individual. 

The main result of such a purpose is to aim to enable a better society, wherein people act on their instincts to help others without any reluctance or fear. 

Another goal of the Samaritan law is to provide aid in matters of a drug overdose. Earlier, drug overdoses were on the rise, which is why Good Samaritan Laws were enacted as a medium to curtail the number of overdoses by encouraging victims, friends, and family to seek help at the time of emergency, calling 911, knowing that they are safe from being prosecuted. 

Individuals who act in an unselfish manner should be glorified in society. By having Good Samaritan Law in place we empower them with immunity, thus making our world a better place to live.  So, when asked ‘What exactly is the purpose of Samaritan laws?’, the simple response would be to make our society a better place to stay. 

Objectives of Good Samaritan Laws

The Good Samaritan Law was implemented keeping the following objectives in mind:

• To safeguard god Samaritans from legal and other complications.
• To shield the Good Samaritans from being vexed by the police officials.
• To support passersby by giving timely medical help or any other support within the golden hour.
• To remove any fearfulness of legal intervention, payment of fees, harassment by the police, imprisonment, court apparatuses, etc. 

Features of Good Samaritan Laws

The main features of the Good Samaritan Laws are as follows:

• The Good Samaritan need not appear in the courts at regular intervals. 
• They need not have to appear at the police station time and again. 
• The Good Samaritans are not obligated to pay the charges in cases where they are mandated to visit the police station or court. Such expenses should be covered by the ‘Good Samaritan Funds,’ if the law of the state has such provisions. 
• Those that assist the injured person must be enlightened about their rights and the provisions created for them. 

Ground rules for Good Samaritan Laws 

The universal ground rules for Good Samaritan Laws are as follows:

1. The individual must act with bona fide intentions. 
2. They must not be reckless or lenient. 
3. They must act as a careful and sound person and must have the ability to make sound judgements.
4. They must only render help which is within the ambit of their training. 
5. The injured person must not be left behind by the individual who is taking care of him. 
6. No reward of any sort should be accepted in return for the services rendered. 

Four Key elements in Good Samaritan Laws 

Even in emergencies, it is necessary to obtain consent from the person in distress. Touching a person who has denied accepting any treatment can result in assault and battery charges being levied upon them.

The four key elements of Good Samaritan Laws are as follows:

1. The permission of an ill or injured individual must be obtained in cases where it is possible.
2. Care must always be given carefully. The caregiver/bystander must not act frantically. 
3. Another element to be considered is that the bystander is not the person who has caused the mishap.
4. The last crucial point that must be considered is that the help given was in an emergency condition and the medical aid was yet to reach the place of emergency.  

Important provisions of Good Samaritan Laws

Consent

Before helping out the injured person or the individual in distress, it is of utmost necessity that consent must be obtained. The procedure for obtaining consent is quite easy and can be attained in only a few seconds. 

Steps to obtain consent  

1. Tell the injured person your name. 
2. Inform them that you have training in assisting in First Aid and/or CPR. 
3. Ask the injured individual if he/she needs aid.
4. Once they reply in affiliation, begin the care procedure. 

Please note: If the injured person is a minor, consent must be taken from the parent(s) or the guardian(s); however, in case of their absence, the situation must be considered to be that of implied consent (discussed below). 

Vital subject under consent  

Implied consent 

There are certain situations where the consent of the victim cannot be obtained verbally. For example, if the victim is extremely ill or awfully confused or unconscious, it is nearly impossible to obtain verbal permission. So, in situations where the law assumes that the victim(s) would most likely give consent if they could, medical aid can be rendered without obtaining vocal consent. This is known as implied consent.   

Duty to act

Depending upon the state laws, most licensed and/or certified medical professionals, medical personnel, public safety officers, and medically trained government employees have a “duty to act” while they are on duty or completing an assigned task. 

If an individual rendering aid is a government employee but is not on duty at the time of the accident, then in such cases, the same individual would be protected as a passerby who has chosen to provide aid under the Good Samaritan Laws.  

Good Samaritan Law and minors

For most of the states in the United States, the same immunity is applicable when an individual comes forward to assist someone under 18 years of age. It has one significant distinction which is that an individual must seek the consent of the parent(s) or guardian(s) of the minor if they are accessible. 

Further, if the parents or guardians are not available and an instantaneous intervention is needed, then in such cases, the individual coming to the rescue will be immune by implied consent (discussed above).  

Good Samaritan Law and drug overdose

In recent years, a distinct type of Good Samaritan Law has emerged, and it aims at motivating individuals to ask for assistance during a drug overdose.  Such a law is also referred to as a “911 Samaritan law” or a “drug overdose immunity law.” 

Presently, 40 states and the District of Columbia have this type of law on the books. However, the following states do not offer this type of explicit immunity yet:

• Arizona,
• Idaho,
• Iowa,
• Kansas,
• Maine,
• Missouri,
• Oklahoma,
• South Carolina,
• Texas, and
• Wyoming.

Protection under the Good Samaritan Law

There are chances that Good Samaritan Laws may or may not provide immunity to an individual attempting a rescue. In a case in California, a woman pulled a co-worker from a car which caused the victim a permanent spinal injury. The woman attempting the rescue was held accountable for such an injury. This is why one must be aware of the Good Samaritan Laws in their state.

In cases of unexpected emergencies, it will be difficult or nearly impossible to research the nuances of state law and deduce the pros and cons of taking action. So, if you do not know how to help, the most important thing to do is to call out for help and call 911. 

But if you have the knowledge to help the individual in distress and you have the ability to take action calmly and in a responsible manner, you will be protected from civil liability and you might even save a life! 

Are AED operators protected under the Good Samaritan Laws 

If you are operating an Automated External Defibrillator (AED) on behalf of your home, business, or public facility, and you are expected to use the device in an emergency, your level of immunity will depend upon your training and the laws in your state.

Usage of AED at home 

If the device is being used at home or outside the professional capacity or in any place where the law does not hold the Good Samaritan responsible for the safety of others, he/she may be protected by Good Samaritan Laws.

Usage of AED in an official capacity   

If an individual is acting in an official capacity, for instance, if an AED is being used because the individual is required to maintain AED/COR training and administer treatment while at work, the individual may not be immune to civil liability.

Exceptions in the case of AED operators 

There are several exceptions to the operation of an AED. Though it all depends on the states; some states explicitly provide immunity to all AED operators. 

For instance, the law of Illinois under § 745 ILCS 49/12 states that “any automated external defibrillator user who in good faith and without fee or compensation renders emergency medical care involving the use of an automated external defibrillator by his or her training is not liable for any civil damages as a result of any act or omission, except for willful and wanton misconduct, by that person in rendering that care.”

The following states have similar immunities:

• Alabama,
• Hawaii,
• Kentucky,
• Michigan,
• Mississippi,
• New York,
• South Dakota,
• Virginia, and
• Wisconsin. 

Protection of physicians for providing medical aid in airspace

In cases where a medically skilled individual renders his aid while flying in a commercial aeroplane which is registered in the United States, they will be immune from any prosecution or legal complications and will not be held liable for damages unless they are guilty of gross negligence. 

It is, however, important that the medical practitioner does not receive any financial benefit. Nonetheless, seat upgrades, credits for travel miles or travel vouchers do not amount to financial benefit and should be viewed as a token of gratitude instead. 

Good Samaritan Law : state-wise description 

All 50 states in the US have Good Samaritan Laws. These laws differ from jurisdiction to jurisdiction, such as who the law safeguards and the circumstances in which individuals must provide their assistance. 

A note must be taken that some states get incredibly specific about the type of training required (be it Red Cross training, American Heart Association training, or even intermediate medical training) to be capable of being a rescuer for having this type of protection.  

Virginia, Pennsylvania, and Delaware.

For instance, the following states protect anyone who attempts to volunteer at the time of an emergency:

1. Virginia, 
2. Pennsylvania, and 
3. Delaware.

Minnesota, Rhode Island, and Vermont

In Minnesota, Rhode Island, and Vermont, there are “failure-to-act” laws, which means every individual or bystander has the legal obligation to provide aid in dire or emergency situations. 

In Minnesota, failing to provide reasonable assistance could be a crime or misdemeanour and a fine up to $300. 

In Rhode Island, there is an explicit law to provide immunity to Good Samaritans in cases related to anaphylactic shock care. 

California and New York

A majority of states, including California and New York, safeguard its citizens who are acting with bona fide intentions and not to receive any financial benefits. 

Kansas and Missouri

In states like Kansas and Missouri, only skilled professional healthcare workers are immune from civil liability and not the general public.  

Alabama 

In Alabama, the laws only require skilled rescuers and public education employees unless the emergency is cardiac arrest. If the emergency is cardiac arrest, then the Alabama law provides immunity for every individual who renders aid in such situations. 

Oklahoma

In the state of Oklahoma, the legislation only safeguards individuals or passersby who have helped in CPR or in controlling bleeding. 

Utah

In Utah, there is no inclusion of liability for failure to attain consent like that in other states. 

Texas

In Texas, any individual who is not licensed or certified to provide medical aid and acts in good faith to regulate an emergency situation will not be held accountable for civil damages for providing aid. It is one of the most simple and Good Samaritan coverage statutes. This section is applicable to all situations, irrespective of whether the care is provided for or with the intent to receive remuneration. 

There is one Good Samaritan Law that has been adopted at the federal level. The 1998 Aviation Medical Assistance Act (AMAA) provides immunity to healthcare workers who volunteer to help patients while in flight. However, this law does not apply to laypeople. 

 The state-wise detailed description of Good Samaritan Laws can be accessed here. 

Limitations of Good Samaritan Laws 

Good Samaritan Law is relevant only in circumstances when the passerby lends reasonable assistance to the individual in distress. This term is somewhat vague, but most US states follow a general Good Samaritan principle to ascertain whether a rescuer or an attempted rescuer, has immunity under the legislation. The core beliefs of a Good Samaritan principle are as under: 

1. The care offered was implemented in direct response to an accident/emergency.
2. The injury was not caused by the care provider. 
3. The care provider did not act in an absurd or negligent manner. 
4. The care provider did not have the duty to treat.

Please note: “Duty to treat” means that the care provider already has a pre-existing obligation to render aid. This could be because they are being generated to respond to an emergency (EMTs, physicians, etc.) or because they are expected by law to dispense care in a certain situation.   

Another crucial consideration is “What constitutes gross negligence?” Gross negligence is usually elucidated to be a failure to act with the same level of competence and care that a normal individual of sound mind would have exhibited in similar situations. So, say, if an individual turns on an AED and adheres to the vocal directions to the best of his/her calibre, the individual has acted with a  rational level of care. Although, if an individual frantically jumps on the injured person’s chest and breaks one of his ribs because he has no clue how to perform CPR, this could be considered negligence.

It is also crucial to take into account that Good Samaritan Laws do not protect professionally trained healthcare workers who are working in a professional capacity. In simple words, a paramedic may still be held accountable for the consequences of his actions wherein he treated a patient at the scene of an emergency, but this usually depends on the laws of each state. 

Bad Samaritan Laws 

Some legislations have pushed for so-called “Bad Samaritan Laws” and have imposed a duty upon individuals to act in cases of emergencies. 

A Good Samaritan Law shields people who act on their violation; a bad Samaritan law holds people responsible for not providing aid at the time of an emergency. This law is also referred to as the “duty to rescue” law at times. 

Presently, only 3 states have this type of law on the books, namely:

1. Minnesota,
2. Rhode Island, and 
3. Vermont. 

Whereas, three other states, namely:

1. Hawaii,
2. Washington, and 
3. Wisconsin,

have laws wanting bystanders to at least call 911 in cases of medical emergencies. 

Way forward and developments in Good Samaritan Laws

Several states have begun to carry out amendments to their Good Samaritan Laws in order to accommodate protection from criminal prosecution for individuals providing aid in circumstances where illicit activities or substances like alcohol or drugs are involved. 

For instance, if there is an accident involving a car with several passengers who are teenagers and the car has met with an accident because the underage driver was driving under the influence of alcohol; in such a case, the other teenagers must not fear being prosecuted and must fall for aid either from the police or rescue workers or both without any worry of being sued. Such type of immunity will also protect individuals consuming illegal drugs and make a 911 call for others who have overdosed and rapid aid.

The states that  already have Good Samaritan Laws with the aforementioned immunity are as follows:

• New York,
• Florida,
• New Mexico,
• Illinois,
• Colorado, 
• Massachusetts, and 
• Washington. 

Further, the states that are thinking of passing such an amendment to the prevailing Good Samaritan Laws are as follows:

• New Hampshire,
• Vermont, and
• New Jersey. 

All the US states must consider bringing such amends to safeguard and immunise the Good Samaritans. 

Conclusion 

Even if the fundamental objective of Good Samaritan Law is apparent, the application of the laws in the real-world scenario can be quite distinct. 

Good Samaritan Laws will not constantly deter someone from filing a lawsuit, but when an individual understands what is allowed and what is forbidden, it is less likely that he/she will be prosecuted, as it is difficult for the other party in the case to win.  

If you are an individual who would halt and try to help any individual at the time of emergency, make sure you understand and are well aware of the Good Samaritan Laws in your area of residence. 

Frequently asked questions (FAQs)

What does the Good Samaritan Law cover?

The Good Samaritan Law is a law which gives immunity to any volunteer who has offered to give aid to an injured person in a situation of plight. The Good Samaritan Law extends lawful protection in the form of impunity from lawsuits and liability, thus, acting as a safeguard to those who help another in a real emergency or a life-death situation.  

Who is not protected by the Good Samaritan Law?

The laws usually do not provide immunity to an individual who renders care, advice, or service in a consciously lenient or irrational manner. 

Is the Good Samaritan Law real?

Yes, Good Samaritan Laws exist in both the United States and Canada, but the laws are inconsistent throughout the states. 

Is there a Good Samaritan Law in all States?

All 50 states and the District of Columbia have some type of Good Samaritan Law. However, the laws can differ from one state to another. A more must be taken that, the majority of US states including California and New York safeguard all citizens who are acting with bona fide intent and without any expectancy of economic gains.

What are the duties or responsibilities of a nurse when acting under Good Samaritan Laws?

A licensed nurse who, with bona fide intentions, renders emergency aid at the place of emergency that arises outside her position of work will not be held lawfully liable for acting or failing to act. However, they can be held legally accountable for acting without reasonable care. 

References

• https://www.law.cornell.edu/wex/good_samaritan_rule 
• https://americancpr.com/blog/tag/good-samaritan-act-good-samaritan-law/ 
• https://www.aedleader.com/good-samaritan-law-overview/

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This article is written by Kishita Gupta, a graduate of the Unitedworld School of Law, Karnavati University, Gandhinagar. It gives an exhaustive overview of the various contents, such as the Preamble, Articles, and the 27 Amendments that compose the US Constitution.

It has been published by Rachit Garg.

Introduction

Did you know the Constitution of the United States of America is the oldest written constitution? It specifies the main governing bodies, their spheres of jurisdiction, and the fundamental rights of citizens. The American Constitution serves as the cornerstone of the federal government. No law may be passed that conflicts with its tenets; it is frequently referred to as the supreme law of the land. In addition, it is adaptable and permits changes in the government. Despite the fact that there have only been 27 changes to the Constitution in more than 200 years, it is referred to as a “living” instrument because it is amendable.

There are three parts that make up the Constitution. The Preamble, which is the document’s first part, explains what it is for and what the Federal Government does. The government’s structure and the process for amending the Constitution are outlined in the second part, which further consists of seven Articles. Lastly, the Bill of Rights, which consists of the first 10 amendments, is listed in the Constitution’s third part, “the Amendments.”

In this article, we shall be giving an exhaustive overview of all the three parts mentioned above, along with a brief historical development.

History – Constitutional Conventions

The Articles of Confederation, which the states were operating under after the American Revolutionary War (1775–1783), offered minimal direction to the states. Since trade between states was not regulated by the Articles of Confederation, a new form of governance was required. Therefore, representatives from New York, New Jersey, Delaware, Virginia, and Pennsylvania gathered at Annapolis, Maryland, in September 1786 to discuss possible solutions to the trade barriers erected between the states. Even though these delegates had come together to make amendments to the Articles of Confederation, by mid-June they had agreed to entirely overhaul the system. Then a committee of details and a committee of style and arrangement were formed, which were assigned the task of writing the Constitution.

The Articles of Confederation, which attempted to preserve as much independence and sovereignty for the states as possible and to delegate to the central government only those nationally significant functions that the states could not handle separately, had a significant impact on the writers of the Constitution. 

On September 17, 1787, 39 delegates, including the proxy for John Dickinson, signed the Constitution. The Constitution had to be ratified in order to become effective. 42 of the original 55 delegates to the Constitutional Convention were present when it was ratified. Of these 42, just three declined to ratify the Constitution. They said that nine states, or two-thirds of the states, had to ratify it, so ratification conventions were convened in each state. The new Constitution was ratified by the state convention delegates, who were chosen by citizens in each state. Thus, the people, rather than the states, would be the source of the new government’s power. However, a Bill of Rights was not established, which frightened certain states, but it was pledged to them that the first Congress would provide this protection by amendment.

As mentioned in the introduction, the United States Constitution is now the oldest written constitution in existence that has continued to be in force without interruption. In order to prevent any one branch of government from gaining excessive power, it also established the first federal form of government and the first system of checks and balances. As a result, the conference was able to realise its constitutional vision thanks to the numerous compromises made by the delegates and various states to find common ground for the welfare of the entire nation. Thus, the citizens of the United States approved the Constitution in July 1789, making it the supreme law of the land.

The Preamble of the US Constitution

In general, a preamble is basically a document that gives an introductory statement and explains its philosophy and objectives. The US Constitution’s Preamble lays out its foundation, the intent of its makers, its values, and the core principles of the nation. It further expresses the document’s intent and goal. The Preamble is not actually the law of the land, but it is an introduction to it. Individual rights or governmental authority are not defined in the preamble. The Supreme Court has frequently used the Preamble as evidence of the origin, scope, and purpose of the Constitution, despite the fact that it is not a source of authority for any agency of the Federal Government. The initial three words of the Constitution, “We the People,” have been read to suggest that the people, not particular states, are the source of the Constitution (and, by extension, all U.S. law). This establishes the tone for the entire document, and thus, for American law. 

The Preamble conveys three key ideas to the reader: 

1. The people of the United States are the source of the authority to pass the Constitution;
2. The wide purposes for which the Constitution is founded; 
3. The architects intended the Constitution to be an enduring legal document.

Articles of the US Constitution

Article I – the Legislative Branch

The legislative branch is established by Article I of the Constitution. It provides details on how Congress must be organised and operated. The first part creates a bicameral Congress. Congress is said to be bicameral as it has both the House of Representatives and the Senate. Due to a compromise, the Founding Fathers reached during the Constitutional Convention, the USA now has two houses of Congress. 

The authority entrusted to Congress in Article I includes, among other things, the ability to define and punish “piracies and felonies committed on the high seas,” adopt laws, construct post offices and post roads, and regulate commerce. Additionally, Article I specifies the qualifications for running for Congress; identifies the Vice President as President of the Senate; and places restrictions on some of their powers.

Article II – the Executive Branch  

Having a president with a set term in office was a completely novel concept when the Constitution was being established because most of Europe still maintained monarchies. However, the short term was implemented in part in response to the European monarchs, in which a single individual maintained absolute authority for an unlimited period of time. The convention’s delegates feared giving one individual an excessive amount of power. In the end, they established the executive branch and our current system of one President while incorporating a system of checks and balances into the Constitution.

A variety of powers are granted to the President by Article II of the Constitution. He or she is the Commander in Chief of the US Armed Forces, creates treaties (although Congress must approve them), and has the authority to pardon US citizens for crimes against the country, with the exception of impeachment. Ambassadors and Supreme Court justices are also appointed by the President. All of the President’s duties are outlined in Article II as well. For instance, among other duties, the President must notify Congress of the status of the Union on a regular basis and ensure that laws are faithfully carried out.

The Vice President, members of the Cabinet who are department heads, and the heads of executive agencies assist the President in governing the nation. The Vice President replaces the President in the event of death or incapacity. However, their duties are not explicitly outlined in the Constitution, unlike the President’s powers.

Article III – the Judicial Branch

The authority of the federal court system is outlined in Article III. According to the Article, the U.S. Supreme Court serves as the final appeals court, and the U.S. Congress has the authority to set the number and jurisdiction of the courts that fall below it. Unless they are accused of misconduct or resign, all judges are appointed for life. A jury of their peers will hear the case and render a verdict for those accused.

The Supreme Court of the United States and other federal courts created by Congress as a result of legislation make up the judicial branch of the federal government. Federal District Courts, US Circuit Courts of Appeal, US Bankruptcy Courts, and US Tax Courts are just a few of these lesser courts.

When the Supreme Court renders a decision in a case, it frequently resolves disputes about the constitutionality of laws, their application, and their meaning. Judicial review is the process by which a law’s constitutionality is determined. The judiciary employs this procedure to act as a check and balance on the legislative and executive branches. Although it is an implicit power, judicial review is not a power explicitly granted to the courts. In a case known as Marbury v. Madison, the Supreme Court issued a decision in 1803 that unambiguously defined the Court’s judicial review authority.

Article IV – the States

Part of Article IV‘s discussion centres on interstate relations and state citizens’ rights. The full faith and credit clause mandate that states recognise the official acts and judicial decisions of other states, the requirement that each state grant citizens of other states all the privileges and immunities available to its own citizens, and the assurance of a republican form of government for each state are some examples of these clauses.

The functions of the states within the federal government are covered in Article IV. Each state frequently acted autonomously and made choices without taking into account the other states under the Articles of Confederation. The Constitution’s Article IV gave the government the authority to accept additional states. Additionally, it stipulates that no state may have a monarchical form of government and that every state must have a republican one. Additionally, it specifies that laws passed by other states must be respected by all states. Additionally, it guarantees that the federal government will shield and defend the states from invasion or attack from abroad.

The primary application of Article IV, Section 1, has been with respect to judgments. It involved the decision of judgement in personam and judgment in rem. Mills v. Duryee (1813) was the first instance. The defendant attempted to reopen the entire issue of the original case’s merits by pleading “nil debt” in an action launched in the circuit court of the District of Columbia, which is similar to a state court for this purpose. In response, it was stated in the first implementing statute of 1790 that such records and proceedings had the same faith and credit in every state as in the State of origin and that, since they were court records in the State of origin and thus conclusive of the case’s merits there, they had the same standing in the State of the forum. According to the Court, the Constitution’s objective with regard to the acceptance of foreign decisions was to strengthen and magnify these principles rather than simply reenacting common law or private international law.

Article V — Amendment

Under Article V, there are two procedures for recommending amendments to the Constitution and two mechanisms for the states to ratify those recommendations. To pass an amendment, two-thirds of either house of Congress must vote on it, or two-thirds of the state legislatures must ask Congress to call a national convention before it can be passed. To be adopted, an amendment must receive the support of three-fourths of the state legislatures or three-fourths of the state ratifying conventions.

The Constitution has only ever been amended via the first procedure. Any adjustment that has been proposed via one of the procedures must still be ratified or approved. The amendment must be approved by three-fourths of state legislatures, or three-fourths of the states must convene a constitutional convention and ratify it. The Constitution has only undergone 27 amendments so far, which will be discussed further in the article.

Article VI – Debts, Supremacy, Oaths

According to Article VI, the United States Constitution and any laws derived from it are the “supreme Law of the Land.” All public servants, including those in the state legislatures, Congress, the judiciary, and the executive branch, are required to take an oath of allegiance to the Constitution.

Article VII – Ratification

According to Article VII, the Constitution wouldn’t take effect until it had been ratified by nine states. The fast ratification of the Constitution was settled upon by Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. While Massachusetts and other states fought for months about the Constitution’s omission of fundamental liberties and freedoms of speech, religion, and the press. Massachusetts and other states wouldn’t sign the Constitution until they agreed to add a “bill of rights,” or a list of safeguarded liberties and rights. By June 21st, 1788, New Hampshire had become the ninth state to ratify, or adopt, the Constitution. The necessary three-fourths majority vote was obtained, and the U.S. government no longer operated under the Articles of Confederation. Soon after, the decision was made that the U.S. Constitution’s new government would take effect on March 4, 1789. 

The first ten amendments, which together make up the promised Bill of Rights, were introduced in 1791. The Constitution was eventually ratified by each of the original thirteen states over the following years.

The Bill of Rights

The First Congress of the United States put forth 12 amendments to the Constitution on September 25, 1789. In the National Archives Museum, there is a display of the 1789 Joint Resolution of Congress proposing the amendments. On December 15, 1791, three-fourths of the state legislatures ratified ten of the twelve proposed amendments. The first ten amendments to the Constitution, also known as the “U.S. Bill of Rights,” are the ratified Articles (3–12). The 27th Amendment to the Constitution, or Article 2 of the Bill of Rights, was ratified in 1992, 203 years after it was first suggested. It turned out that Article 1 was never ratified.

Amendments to the US Constitution

The First Amendment

The freedoms of speech, the press, assembly and the right to petition the government are among the five freedoms the First Amendment safeguards. The citizens of the United States of America are liberated given these five fundamental freedoms. The Founders of the democratic republic insisted that the First Amendment be added as a safeguard to the original Constitution before they agreed to adopt it.

A person does not have to be of a certain ‘legal age’ in order to use their First Amendment rights. On the day of their birth, these rights are assured to them. A condition for First Amendment protection is not citizenship. Everyone has the right to freedom of expression, press, assembly, religion, and petition if they are in the United States. 

For instance, in the case of Engel v. Vitale (1962), the Supreme Court held that school-sponsored prayers in public schools are unconstitutional and violate the First Amendment. Texas v. Johnson (1989) is another landmark decision, which stated that the First Amendment to the United States Constitution protects the burning of the American flag as a form of speech. 

Further, in US v. Alvarez (2012), Xavier Alvarez broke the Stolen Valor Act when he stated in a public gathering that he had received the Congressional Medal of Honor. For this content-based restriction, which demands “most stringent scrutiny,” the Court used the Turner standard. By a vote of 6-3, the Supreme Court declared the Stolen Valor Act, 2005 to be unconstitutional and a First Amendment violation.

The Second Amendment

The Second Amendment passed through the Bill of Rights, acted as a constitutional check on the federal militia’s organisation, arming, and control under Article I, Section 8. In the first hearing, Presser v. Illinois (1886), by the US Supreme Court on the topic of the right to bear arms, the Court held that the second amendment forbade the states from “prohibit[ing] the people from owning and bearing arms, so as to deprive the United States of their due resource for maintaining the public security.”

In contrast, the Supreme Court avoided discussing the legal constraints of the Second Amendment in United States v. Miller (1939), in a case involving a prosecution under the National Firearms Act (1934), by merely concluding that “possession or use of a shotgun having a barrel of less than eighteen inches in length” was not “any part of the ordinary military equipment” protected by the Second Amendment.

However, in 2008, through the judgment of District of Columbia v. Heller (2008), the Supreme Court explained what the right to bear arms protects. According to the Supreme Court, the amendment’s “central component” was the right to self-defence. The Court also upheld earlier decisions that the Second Amendment guaranteed people’s freedom to participate in the defence of their liberty by joining a formal militia. Further, it was made very clear that the Second Amendment’s guarantee does not really protect “the sole institutional beneficiary” of an individual’s right to an ‘organised militia.’

The Third Amendment

The Third Amendment prohibits the government from involuntary quartering soldiers in private homes, which was a major issue during the American Revolution. Although the third amendment has never been a direct issue to be discussed by the Supreme Court, its importance lies in the core principle due to which it was brought about by the framers. 

Under King George III, the British had what amounted to standing armies in the colonies before and during the American Revolution (1775–83), with soldiers being quartered in private homes. It led to the constant abuse of individuals and properties at that time.

The Fourth Amendment

The Fourth Amendment restricts the US government from unreasonable search and seizure of an individual or their private property. The Fourth Amendment establishes both the obligations of law enforcement agents and the rights of individuals, and it serves as the cornerstone of criminal law jurisprudence in U.S. constitutional law. There has been extensive political, judicial, and popular discussion about how these two forces should be balanced.

The Supreme Court’s decision in Weeks v. the United States (1914), known as the exclusionary rule, that evidence obtained in violation of the Fourth Amendment could not be used in court had one of the Fourth Amendment’s most significant effects.

Recently, in the case of  Arizona v. Gant (2009), the Supreme Court held that only where there is a good basis to think that the suspect might be in the car at the time of the search or when the car has evidence of the crime for which the suspect was arrested, police may check a suspect’s car after an arrest.

The Fifth Amendment

The Fifth Amendment grants people accused of crimes a number of rights and protections, such as the right to a grand jury indictment for felonies in federal court, the prohibition against double jeopardy (being tried again for the same crime after being found not guilty), protection from being forced to testify against one’s self, the assurance of due process, and the prohibition against the government taking private property without just compensation for public use.

In Miranda v. Arizona (1966), the Supreme Court made the decision that police must offer criminal suspects a set of warnings before they can be interrogated, which is the most significant Fifth Amendment ruling outside of criminal trials. Their Miranda Rights refer to this. These rights have a clear connection to the Fifth Amendment’s restriction on self-incrimination.

The Sixth Amendment

The Sixth Amendment ensures that criminal defendants receive fair and accurate legal representation, as well as the following rights: the right to a speedy, public trial by jury from the area where the crime was committed; the right to confront and question witnesses against the defendant; the right to subpoena witnesses and have them testify at trial.

The first clause of the Sixth Amendment’s provisions for a jury trial and a public trial are crucial components of due process. Unbiasedness is essential to the clause and the rights it aims to defend. By letting the jury decide, as well as by screening out prospectively biased jurors, bias is anticipated to be minimized. To this end, the jury selection process offers participation to both the prosecution and the defence.

The final provision of the Sixth Amendment guarantees the right to counsel for those who have been charged with a crime and is equally applicable to custodial interrogations and court proceedings.

The Sixth Amendment sets a standard for justice and criminal proceedings, particularly in defining the rights of those who are accused of crimes. This is true even though criminal institutions in America have changed since 1791 and something like a “speedy trial” could actually mean years in today’s court system.

The Seventh Amendment

The right to a jury trial is guaranteed under the Seventh Amendment in civil proceedings involving property valued at more than $20. Although jurors are almost always present in criminal trials, they are uncommon in civil trials.

The goal of the amendment was to maintain a boundary between the duties of jurors and judges, such as making legal decisions. 

The right to a jury trial in civil disputes as it “existed under English common law at the time the amendment was ratified” has historically been viewed by the Supreme Court as being preserved by the Seventh Amendment, as noted in the case of Baltimore and Carolina Line v. Redman (1913). 

The main goal of the Amendment was to maintain the traditional boundary dividing the jurisdiction of the jury from that of the judge, while at the same time allowing for procedural advancements that did not cross this boundary.

The Eighth Amendment

The Eighth Amendment forbids the federal government from setting high bail amounts and punishing criminal defendants in a cruel or unusual manner. 

The U.S. Constitution is silent on the precise definition of “excessive,” although it has generally been accepted that fines that do not impair due process by causing property loss are acceptable. In general, appeals of fines are not overturned unless there was a clear abuse of discretion in imposing them. Individual rights are limited with regard to bail by the needs of the justice system and society at large. As a result, while deciding sums, the gravity of the crime, the evidence against the accused, and the accused’s flight risk may all be taken into account. Bail amounts for criminal offences are typically determined by considering reasonableness and proportionality.

The Constitution is also silent regarding what constitutes “cruel” and “unusual” punishment; therefore, it is up to the courts to decide precisely what is and is not legal. The fundamental tenet is that the punishment must be appropriate for the offence.

In Furman v. Georgia (1972), the Supreme Court consolidated three cases, Jackson v. Georgia (1971) and Branch v. Texas (1969), in which the death penalty for rape was contested, and Furman, in which a gun unintentionally went off when the defendant was breaking into a home. The Supreme Court ruled that the death sentences given in these three cases violated the Constitution because they gave judges too much latitude in deciding who would receive the death penalty. The Court also stated that the death penalty had been imposed in general in an ‘arbitrary’ and ‘capricious’ manner, rendering it unconstitutional until states could make amends.

The Ninth Amendment

The Ninth Amendment simply clarifies that although if the US Constitution and the Bill of Rights name certain rights, it doesn’t follow that people don’t have additional rights that aren’t included in those documents. 

The protection of individual rights was a hot topic before, during, and after the Constitution’s approval. The Anti-Federalists eventually pushed for the insertion of a Bill of Rights into the Constitution because they believed that without one, the federal government would be given excessive power. Federalists argued that listing protected rights would potentially harm individual liberty and make other liberties presumptively unworthy of constitutional protection, despite the fact that they felt the Constitution had established a limited central authority. In order to uphold the idea that the rights listed in the Constitution are not all-inclusive and final and that the existence of other rights is not in any way diminished or negated by those listed, the Ninth Amendment was created. It wasn’t obvious what rights the amendment guaranteed.

The Tenth Amendment

The Tenth Amendment, the last of the 10 amendments that make up the Bill of Rights, was largely inserted into the Constitution to ease tension and allay the concerns of advocates for state’s rights who thought the newly adopted Constitution would allow the federal government to trample on the states and their citizens. Although the ratification of the Constitution gave the Federalists, who favoured a strong central government, the upper hand in that regard, it was crucial for the Constitution’s integrity and the stability of the young nation to recognise the interests of the Anti-Federalists, like Patrick Henry, who had unsuccessfully opposed the strong central government the Constitution created.

The Tenth Amendment expressly reserves to the states those powers that the Constitution neither delegated to the federal government nor prohibited to the states. This contrasts with the Ninth Amendment, which states that the enumeration of certain rights in the Constitution does not deny or disparage other unenumerated rights retained by the people. Although there had been an attempt to do so, Congress rejected a proposal to modify the word “delegated with expressly” in the amendment. As a result, the Tenth Amendment does not put any particular restrictions on the authority of the federal government. As a result, it does not give states new authority or change the way the federal government and the states interact.

In a landmark judgment in Printz v. the United States (1997), the Supreme Court reaffirmed the rights of the state and the anti-commandeering provisions of the US Constitution. Justice Antonin Scalia authored the majority opinion in the 5–4 decision that overturned a portion of the Brady Handgun Violence Prevention Act, 1993 (the Brady Act) as being in violation of the 10th Amendment. The Brady Act’s mandate that local sheriffs conduct background checks on gun owners ran afoul of the idea of “anti-commandeering,” which had been outlined as a crucial aspect of federalism in an earlier decision, New York v. United States (1992).

The Eleventh Amendment

The United States Constitution’s Eleventh Amendment, adopted in 1795, introduced the concept of state sovereign immunity. The United States’ judicial authority cannot be interpreted to include any legal action brought by citizens of another state or by subjects of another country against one of the United States.

The 11th Amendment modifies a portion of Article III, Section 2 of the US Constitution by prohibiting federal courts from considering claims against states. Congress approved it on March 4, 1794, and it was ratified on February 7, 1795.

One day after the Supreme Court’s decision in the Chisholm v. Georgia (1793) case, which allowed individuals to challenge states in federal court, the request for this amendment was introduced. These lawsuits are now being heard in state courts. The only alteration pertaining to the judicial department of the government is this one. The rulings of the Supreme Court grant state immunity against lawsuits that seem to go beyond the provisions of the 11th amendment, as was noted in Alden v. Maine (1999).

According to the National Constitution Center, there are three different approaches to the 11th Amendment. These are as follows:

1. First, some contend that even if a claim is founded on federal law, the Eleventh Amendment should be invoked to preclude litigation against states by out-of-state residents, foreign nationals, or subjects (but only by these parties). 
2. Others contend that the Eleventh Amendment should not be interpreted to bar federal courts from hearing lawsuits brought by residents of another state against a state if the claim arises under federal law because the language of the amendment matches a “party-based” head of jurisdiction.
3. In a different interpretation, the Eleventh Amendment is seen as being targeted at the judiciary, forbidding them from interpreting the jurisdictional grant of Article III to revoke a state’s common law immunity but permitting Congress to do so if it indicates its intention to hold states liable.

The Twelfth Amendment

The presidential election procedure outlined in Article II, Section 1 of the US Constitution was changed by the 12th Amendment, which was approved by Congress on December 9, 1803, and ratified on June 15, 1804. It also addressed a number of issues that arose as a result of the growth of political parties and how that affected the electoral college.

The Twelfth Amendment had the consequence of making presidential and vice presidential candidates subject to separate voting. In the event of a tie, the top three candidates with the most electoral votes would be chosen by the House of Representatives to receive one vote from each state.

The Thirteenth Amendment

The US Constitution’s Article 4, Section 2, which mandated that fugitive slaves be returned to their owners, was replaced by the 13th Amendment, which was voted by Congress on January 31, 1865, and ratified on December 6, 1865.

On January 1, 1863, President Abraham Lincoln issued the Emancipation Proclamation, which only freed slaves in the Confederate states that had seceded. All slaves and indentured servants in the nation were able to be set free thanks to the 13th Amendment. However, it did not give African Americans the right to vote. The Thirteenth Amendment nullified those parts of the Constitution that had implicitly established the “peculiar institution,” despite the fact that the words “slavery” and “slave” are never used in the Constitution.

The Fourteenth Amendment

The Fourteenth Amendment, enacted in 1868, added the words “all persons born or naturalised in the United States” to the Constitution of the United States, granting citizenship and equal civil and legal rights to African Americans and slaves who had been freed following the American Civil War. The Amendment is made up of five Sections in total, four of which were originally independent proposals that were abandoned during the legislative process and then combined with a fifth enforcement provision to form a single amendment.

One of the most crucial provisions of this amendment is Section 1, which provides citizenship to former slaves and ensures their equal protection and due process rights.

In one of the most well-known instances involving this amendment, Brown v. Board of Education (1954), the Supreme Court determined that racial segregation in public schools was unconstitutional. In important decisions like Roe v. Wade (1973), which dealt with abortion, and Obergefell v. Hodges (2015), which dealt with same-sex marriage, it was also applied. 

In another landmark judgment, Griswold v. Connecticut (1965), a very serious matter under the 14th amendment was dealt with. Have you noticed when there are lights in front as well as behind you as you go down the street at night and you get that incredibly dark shadow? In the world of science, that shadow is referred to as an “umbra.” Two or more half-shadows that aren’t quite as black but nonetheless darker than the well-lit sidewalk around you flank that dark shadow on the ground. The most contentious topic of possibly the most contentious Supreme Court decision of the 20th century was explained using these “penumbras,” as they are known. When Estelle Griswold was detained for breaking a state law that forbade advising and prescribing birth control to married couples, she was the director of a Planned Parenthood facility in Connecticut. The Supreme Court was asked to decide whether the Constitution safeguarded married couples’ right to receive confidential contraceptive use and acquisition counselling. According to Justice Douglas, even though it was implicit, the 14th Amendment’s Due Process Clause guaranteed individuals’ basic “right to privacy” under the Bill of Rights’ penumbras. Griswold’s “right to privacy” has been used to justify a number of other contentious rulings, including Roe v. Wade (1973). It is still at the centre of the current substantive due process issue.

With the caveat that this prohibition may be lifted for specific persons by a two-thirds vote in both Houses of Congress, the amendment prohibited previous civil and military office holders who had backed the Confederacy from holding any state or federal office once again. The amendment also protected the national debt while absolving the federal and state governments of any liability for the debts committed by the rebellious Confederate States of America. The final clause, which followed the Thirteenth Amendment’s methodology, provided for enforcement.

The Fifteenth Amendment

The right to vote is protected by the 15th Amendment, which was adopted by Congress on February 26, 1869, and approved on February 3, 1870. It further states that this right cannot be restricted according to race. The Thirteenth Amendment, which abolished slavery, and the Fourteenth Amendment, which gave African Americans citizenship rights, respectively, were preceded and followed by the amendment. The Fifteenth Amendment was passed and ratified on February 3, 1870, essentially granting voting rights to African American men but denying them to women of all races. That privilege would not be granted to women until the Nineteenth Amendment was ratified in 1920. 

Until the Voting Rights Act of 1965, discriminatory methods such as literacy tests and poll taxes were used in voting booths to keep black Americans from exercising their right to vote. Voter suppression is still a problem in today’s America.

In United States v. Reese (1876), two election officials in Tennessee disallowed a black man from voting in the first case involving voting rights since the 15th Amendment’s passage. The Enforcement Act of 1870, federal legislation that, among other measures, set forth penalties for tampering with the right to vote guaranteed by the 15th Amendment, was violated by the elections authorities. Due to their inadequate tailoring to uphold the 15th Amendment, the Supreme Court ruled that the relevant parts of the Enforcement Act were unconstitutional. 

In the most recent case of Brnovich v. Democratic National Committee (2021), several Democratic organisations argued that two voting regulations in Arizona (one that made it illegal to collect votes and another that mandated that ballots cast in the incorrect precinct be invalidated) violated Section 2 of the VRA 1965. Both restrictions were invalidated after the whole 9th U.S. Circuit Court of Appeals sided with the plaintiffs. The two measures did not contravene Section 2, according to the Supreme Court, which reversed the ruling. 

The Sixteenth Amendment

Congress approved the 16th Amendment on July 2, 1909, and it was ratified on February 3, 1913. It modifies a portion of Article I, Section 9 of the United States Constitution by granting Congress the authority to levy income taxes. The Pollock v. Farmers’ Loan and Trust Company Supreme Court ruling from 1895, which rendered a federal income tax all but impossible, was overturned by this amendment.

Therefore, the ability to collect income taxes was rendered useless unless the U.S. Congress intended all income taxes to be distributed among the states in accordance with their populations. To address this issue, the Sixteenth Amendment was proposed in 1909. The ‘direct tax conundrum’ associated with Article I, Section 8 is eliminated by adding the phrase ‘from whatever source derived,’ and Congress is now free to levy and collect income tax without taking into account the census and enumeration requirements of Article I, Section 9. Finally, its ratification took place in 1913.

The Seventeenth Amendment

The 17th Amendment, which was approved by Congress on May 13, 1912, and ratified on April 8, 1913, changed the US Constitution’s provision that senators be chosen directly by the people rather than by state legislatures. Since Congress was established according to the original US Constitution, this is one of the few significant adjustments that have been made. 

Two senators from each state, chosen for six years by their constituents, will make up the US Senate. Each senator will have one vote. The electors in each state must meet the requirements for members of the state legislatures’ most numerous branches.

The executive authority of any State shall issue writs of election to fill any vacancies in the Senate representation of such State; provided, however, that the legislature of any State may authorise the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The Constitution’s Article I, Section 3‘s electoral system, which called for the state legislatures to appoint senators, was modified by this amendment. Any senator elected before this amendment becomes a part of the Constitution will not have their election or term affected by it.

The Eighteenth Amendment

One year after the 18th Amendment was ratified, the prohibition against producing and selling alcoholic beverages went into effect. On December 18, 1917, Congress approved it, and on January 16, 1919, it was confirmed. Before the 21st Amendment, which was passed in 1933, ended prohibition, it remained in effect for 13 years.

The amendment was approved by the two chambers of the United States Congress in December 1917, and the necessary three-fourths of the states ratified it in January 1919. The National Prohibition Act (commonly referred to as the Volstead Act) text called for Congress to pass enforcement legislation, and Andrew Volstead, the chairman of the House Judiciary Committee, pushed for this. The Volstead Act and Amendment were repealed because they weren’t very well enforced.

The Nineteenth Amendment

Women were granted the right to vote under the 19th Amendment. Susan B. Anthony contended that the 14th Amendment privileges and immunities section granted women the right to vote as they had always been citizens before the 19th Amendment was passed by Congress on June 4, 1919, and ratified on August 18, 1920.

The women’s suffrage movement attempted to achieve a US Constitutional Amendment to grant women the right to vote after the Supreme Court ruled in Minor v. Happersett (1875) that being citizens alone did not grant women the right to vote.

The Twentieth Amendment

The 20th Amendment established the start and end of congressional and presidential sessions. It also specifies the succession order for the presidency, albeit the 25th Amendment later changed that order. Sen. George W. Norris of Nebraska proposed it on March 2, 1932, and it was approved in January of the following year.

The Twentieth Amendment, also referred to as the “Lame Duck Amendment,” was created to shorten the abnormally long period of time that a defeated president or member of Congress would continue to hold office after losing their campaign for reelection. In the event that a president-elect passed away before taking the oath of office, the amendment also allowed for the vice president-elect to assume the presidency.

As required by the 20th Amendment, Franklin D. Roosevelt became the first president to be inaugurated in January as opposed to March or April, as George Washington had done in 1937. 

The Twenty-First Amendment

Prohibition on the manufacture and sale of alcohol was abolished by the 21st Amendment. On February 20, 1933, Congress approved it, and on December 5, 1933, it was ratified. The only amendment that nullifies an earlier amendment was approved by state ratifying conventions rather than state legislatures, and it is also the only amendment that does so.

While the repeal of prohibition receives the majority of public attention, it’s crucial to remember that the Twenty-first Amendment also gave states more freedom to control alcohol both within and outside of their boundaries. As long as they do not violate the Constitution’s commerce clause, the states may limit the importation and transportation of alcohol.

The Amendment is unique in two ways: 

1. It is the only one to explicitly repeal another amendment;
2. It is the only one to ratify itself using state conventions as a secondary procedure rather than state legislatures.

The Twenty-Second amendment

Presidents are only allowed to serve two terms in office because of the 22nd Amendment, which was approved by Congress on March 21, 1947, and ratified on February 27, 1951. This is largely due to George Washington’s decision to leave office after serving only two terms, which established the standard for the next 150 presidents of the United States. Fear of a despotic presidency led to the passage of the 22nd Amendment. The Hoover Commission, established by President Harry S. Truman, made 273 recommendations to the U.S. Congress in an effort to reform and reorganise the federal government. This was one of those suggestions.

The Amendment limits a president’s term to 10 years. A person who succeeds in the presidency without an election and holds the position for less than two years is eligible to run for two consecutive terms. Otherwise, they can only hold the position for one elected term. Despite efforts to have the Amendment repealed since it prevents voters from democratically electing the president of their choosing, it has proven to be uncontroversial over time. However, presidents who are elected to a second term in office are frequently referred to as “lame ducks,” and the race to succeed them frequently starts even before their second term is officially inaugurated.

The Twenty-Third Amendment

Congress approved the 23rd Amendment on June 16, 1960, and it was ratified on March 29, 1961. Because residents of Washington, DC are federal district residents and not state citizens, it allowed them to choose electors for presidential elections. The Twenty-third Amendment gave District residents the right to vote in presidential elections and gave Washington the same number of electoral votes as the state with the fewest people (in effect, three). Although Congress, which according to the U.S. Constitution has exclusive jurisdiction over the federal district, established a nonvoting elected delegate to the House of Representatives in 1970, residents still lack representation in the U.S. Congress.

The Twenty-Fourth Amendment

The United States Constitution’s Twenty-fourth Amendment, adopted in 1964, forbade the federal and state governments from imposing poll taxes before a citizen could vote in a federal election. On August 27, 1962, the U.S. Congress made the proposal, and on January 23, 1964, the states ratified it. 

The Supreme Court reasoned in Breedlove v. Suttles (1937) that the states bestow voting rights and that the states may decide voter eligibility as they see proper, with the exception of any problems with the Fifteenth Amendment (regarding race) and the Nineteenth Amendment (respecting sex). Additionally, it determined that a tax on voting did not violate any rights or exemptions guaranteed by the Fourteenth Amendment. In other words, the levy did not contravene the Fourteenth or Fifteenth Amendments because it applied to all voters rather than simply specific kinds of voters.

Initially, more people were able to vote because they could pay the poll tax rather than show they were property owners. Before the Voting Rights Act of 1965, poll taxes were reinstated as a means of preventing black Americans from casting ballots.

The Twenty-Fifth Amendment

The 25th Amendment establishes the president’s line of succession and specifies what should happen in the event of a presidential infirmity. It was approved by Congress on July 6, 1965, and it was ratified on February 10, 1967.

It mainly had three Sections. These are explained briefly as follows:

1. While the first Section of the Twenty-fifth Amendment codified the customary succession procedure in the event of the death of the president, according to which the vice president would take office, it also brought about a change regarding the vice president’s assent to the presidency in the event that the latter resigned from office.
2. The amendment’s second Section handles vacancies in the vice president’s position. Because the vice president’s position became vacant in the past, generally when the president died and the vice president took over as president, that position remained unfilled until the following election. The Vice President shall be appointed by the President pursuant to the Twenty-fifth Amendment and shall be subject to confirmation by the United States Congress. This clause went into force not long after the amendment was ratified.
3. The formal procedure for evaluating the president’s ability to carry out his or her responsibilities as president was outlined in the third part of the Amendment. It is assumed that the president will be in a position to formally notify the speaker of the House and the president pro tempore of the Senate of such circumstances by means of a written statement, which would result in the vice president temporarily filling in as president. The fourth Section of the Amendment mandates that such decisions be made jointly by the vice president and the cabinet, with the vice president immediately taking on the role of acting president in the event that a president is unable to declare his inability to carry out the powers and duties of the office.

Since its ratification, this Amendment has only been invoked three times to remove presidents from office for medical reasons. After John F. Kennedy was slain in 1963, there was initially a fear of presidential succession that led to its passage. When Gerald R. Ford took office as president in 1974 following Richard Nixon’s resignation, the 25th Amendment was first used. The second instance occurred in 1985, when, while undergoing surgery, Ronald Reagan temporarily transferred his presidential responsibilities to Vice President George H. W. Bush. While receiving routine colonoscopies in 2002 and 2007, George W. Bush twice used the 25th Amendment to grant vice president Dick Cheney presidential powers.

The Twenty-Sixth Amendment

The 26th Amendment amended Section 2 of Amendment 14 of the US Constitution to permit voting by US citizens who are 18 years old. The protection of voting rights is addressed in this amendment, which is the last one. Americans may vote at age 21, prior to the ratification of the 26th Amendment.

Congress approved the Voting Rights Act, which lowered the voting age for all federal, state, and local elections to 18 as a result of the Vietnam War when men were being drafted at the age of 18 but were not yet eligible to vote. Congress approved it on March 23, 1971, and it was ratified on July 1, 1971.

The 26th Amendment was adopted in order to decrease the voting age after the Supreme Court ruled in Oregon v. Mitchell (1970) that Congress could not mandate it.

The Twenty-Seventh Amendment

So far, the last amendment to the US Constitution is the 27th amendment. James Madison put forth a proposal of 12 amendments to the US Constitution, the second of which was the 27th Amendment, commonly known as the Congressional Compensation Act of 1789. According to this, wage adjustments for members of Congress can only be made after the subsequent election.

Only six states, including Delaware, Maryland, North Carolina, South Carolina, Vermont, and Virginia, voted to ratify it when it was first put up in 1789. The proposition remained unratified for 80 years, but Ohio ratified it in 1873 and Wyoming ratified it in 1978.

The movement to ratify the amendment and stop political corruption gained momentum in 1982 as a result of a research paper authored by Gregory Watson, a student at the University of Texas in Austin at the time, that served as the inspiration for the movement. Watson’s professor gave him a “C” for the paper because he felt the justification that the change was still pending was unpersuasive. The Amendment was certified by the United States Archives as the Twenty-seventh Amendment on May 18, 1992, more than 202 years after its initial proposal. The necessary 38 states had ratified the Amendment by May 5, 1992 (North Carolina had ratified it again in 1989).

Conclusion

The above mentioned are all the Articles and Amendments that are required to be known if one wants an overview of the US Constitution. Let us conclude the article with some interesting facts about the US Constitution. The United States Constitution is known as a “Bundle of Compromises.” James Madison and Gouverneur Morris served as the U.S. Constitution’s principal draughtsmen. The U.S. Constitution was ratified in 1789 with the support of 9 out of 13 states. All 13 eventually approved the US Constitution. 

Frequently Asked Questions (FAQs)

1. Why is the US Constitution called ‘a bundle of compromises?’

The US Constitution was called “a bundle of compromises” because, in order to construct a constitution that was acceptable to all 13 states, delegates had to compromise on a number of crucial issues. In the end, all 13 ratified it in 1789.

2. What were the compromises of the US Constitution?

The Great Compromise, the Three-Fifths Compromise, and the Electoral College were the three main compromises.

3. What, in the simplest terms, is the American Constitution?

The Constitution outlines the three main federal government branches and their respective responsibilities. It also specifies the fundamental legislation of the United States federal government. It is the oldest written national constitution still in use and has come to represent a Western legal precedent.

4. Who is the father of the US Constitution?

Because of his crucial contribution to the drafting and ratification of the Constitution, James Madison is referred to as its “Father.”

5. Who was against the US Constitution?

Given the lack of a bill of rights and their concern that the new national government would be overly powerful and harm individual liberty, the Anti-Federalists opposed the passage of the 1787 U.S. Constitution.

References

1. Constitution of the United States of America | Definition, Summary, Amendments, Analysis, Importance, & Facts | Britannica 
2. US Constitution | US Law 
3. United States Constitution – Ballotpedia 
4. The Bill of Rights: What Does it Say? | National Archives 
5. http://www.dailybulletin.com/ci_17678361 
6. The US Constitution has 27 amendments that protect the rights of Americans. Do you know them all? 

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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the origin of natural law, its application in the core legislative documents of the United States, its interpretation by judicial bodies, and the reasons for its decline under the current judicial system.  

It has been published by Rachit Garg.

Introduction

In simple words, natural law can be defined as the law born out of morality that guides us through our ability to reason. It is the invisible force that guides us on the journey of life and helps us choose between right and wrong. It is pertinent to note that this concept of natural law has been at the core of American jurisprudence since its very conception. From the United States Declaration of Independence to the framing of the United States Constitution itself, reliance has been placed on natural law time and again.

Over several decades, natural law has played a crucial role in the interpretation of common law by different judges of the Supreme Court of the United States of America, and it has been referred to directly in over 1400 cases to date. However, even after repeated reliance on the concept of natural law, the courts have failed to provide an extensive definition of the same. Over time, the use of natural law in decision-making has been both lauded and condemned by multiple judges across the USA.

Origin of natural law

The roots of natural law can be traced back to the works of the Greek philosopher Aristotle, who is also regarded as the founding father of natural law. He provided a distinction between natural law and man-made law by stating that the law of man varies from place to place while the law of nature is constant in all places. He believed that the source of natural law is the human ability to reason, which is derived from God himself. Following Aristotle, another Greek philosopher, Plato was of the view that there exists a society that is free from chaos because of the existence of proper order. This order arises from the fundamental principles of goodness that are embedded within every human being. The Roman jurist St. Paul was of the opinion that natural law is a law that is written in the hearts of all human beings. Another Roman jurist, Cicero, was of the view that both natural law and natural justice originate from nature and from the duties of human beings that lead to the unification of humanity. He further noted that natural law imposes a duty on all human beings to contribute toward the betterment of society.  

In the 13^th century, an eminent scholar and jurist, St. Thomas Aquinas, defined natural law. He stated that “natural law is the light of human reason by which a person discerns what is good and what is evil.” According to him, the first principle of natural law is the use of practical reason to determine the truth and for the purpose of undertaking any action. This principle acts as a guide to all humans and helps them understand which actions they should undertake and which actions they should avoid. He added that the 10 commandments of the Bible act as the divine source of natural law.  

Walter Burns was the first American philosopher, to establish a relationship between natural law and natural liberty. He theorised that natural law consists of the reasons based on which the exercise of natural liberty could be controlled and that natural liberty was to be subjected to the limitations of natural law at all times. He believed that natural law had a foundation in the physical world and it guided humans as to how to use their freedom. His theory was based on the following two assumptions:

1. All human beings were equally free.
2. All human beings had the power to preserve their liberty.

Natural law in the American context

The Constitution of the United States of America

Grotius, also known as the father of international law, was one of the first philosophers who stated that the natural law doctrine is part and parcel of modern international law and that there should be a universally valid natural law that is acceptable by the international community as a whole. This ideology was used as a stepping stone by the fathers of the US constitution while including natural law theories into the very core of the American constitution. Thomas Jefferson, one of the founding fathers of the US Constitution, incorporated the right to pursue happiness by all Americans into the constitutional framework by relying upon the theories of natural law. According to him, true happiness could be achieved by committing to human reason. The US Constitution, under Article 6, i.e.,  the supremacy clause, specifically recognises that obligations under international law are binding on the American government due to the principles of natural law embedded in the Constitution. The same was recognised in the landmark case of The Pacquete Habana vs. the United States (1900). 

Now let us try and understand the relationship between the principles of natural law and the origin of the US Constitution.  

Origin of the US Constitution

The Constitution of the United States was drafted in Philadelphia in the year 1787, and as of today, it forms the fundamental basis of the country. It is pertinent to note that the founding fathers of the US Constitution followed the traditional natural law theory that is based on God rather than the natural law of enlightenment that is based on human beings. They believed that the primary source of law and all rights and obligations that come with it are derived from God himself, and thus the natural law of God should guide  American society through its constitution. Thus, the founding fathers based the constitution on the ideology that when God created the universe, he also created a system of law to keep the universe in check, i.e., the natural law, and this natural law supersedes any law that is created by man. 

Difference between the traditional natural law and the natural law of enlightenment

The traditional natural law flows from the works of Aristotle, Cicero, St. Thomas Aquinas, etc., who put forth the view that natural law is the law of God and human beings follow natural law by the principles of human reason that have been embedded in them by God himself. On the other hand, the natural law of enlightenment flows from the works of Becker and Tocqueville, who believed that natural law has its roots in the general will of human beings and that the legislative majority is the supreme power that introduces and enforces the principles of natural law. They did not believe in the proposition that natural law originated from God himself. 

The founding fathers and their ideologies of natural law

The reason that natural law is at the core of the US Constitution is the founding fathers’ ideologies regarding natural law. Lets us now look into the views of some of the founding fathers regarding the principles of natural law that were put forth by them during the Philadelphia Constitutional Convention. 

James Madison- The Father of the US Constitution

He was of the view that before human beings could be deemed as subjects of civil society, they should be treated as subjects of God himself. Since God has created the universe, every human being owes a duty toward God by virtue of his existence in the universe. This duty has precedence over the duties owed by man in a civil society toward other human beings.    

Alexander Hamilton 

He was of the view that by creating this universe, God had also created a supreme and uniform law for all human beings. This law predated all man-made laws and is known as the law of nature. He further added that even though the law of nature is unwritten and uncodified, it cannot be repealed or overridden by any man-made law as the rights that emerge from the law of nature, i.e. natural rights are inalienable rights of human beings that are provided by God and, thus, are eternal in nature. 

James Wilson

He based his reasoning of traditional natural law on the fact that since God is the creator of the universe, he has absolute power over all human beings. Thus, God has the power to prescribe a set of laws in the form of the law of nature, and it is the duty of all humankind itself to follow them. Human beings have derived their intellect and morality from God himself and therefore should recognise the absolute authority of God over mankind. He further believed that the law of nature was based on the principles of human reason.    

Apart from the aforesaid, there were several other prominent delegates of the Constitutional Convention who believed in traditional natural law and used it to draft the Constitution. This included George Washington, President of the Constitutional Convention, John Dickenson and Daniel Carroll, among others. They believed that the rights and liberties of all human beings were derived from the ultimate source of law, i.e., the law provided by the lord of Earth himself.   

Now that we have understood the views of the founding fathers regarding the principles of natural law, let us try to understand how these principles were embedded into the United States Constitution.

Relationship between the Bill of Rights and natural law

Just like the US Constitution, the American Bill of Rights is also founded on the principles of natural law. It recognises multiple natural rights but also declares them as fundamental rights of every citizen. In Southcenter Joint Venture v. Nat’l Democratic Policy Comm (1989), the Supreme Court of Washington observed that the framers of the American Constitution subscribed to the principles of natural law while drafting the Declaration of Independence and the American Bill of Rights. Now let us look into the provisions of the American Bill of Rights in detail. 

Amendment I

This Amendment restricts the government from enacting any law that prohibits individuals in the country from professing or practising the religion of their choice, i.e., freedom of religion has been recognised. Apart from this, the following rights were guaranteed:

1. Right to freedom of speech and expression
2. Right to freedom of the press
3. Right of peaceful assembly
4. Right to seek redressal of grievances from the government

Natural law jurist Brutus stated that the right to profess any religion is a natural right and the state can neither interfere with this right nor abridge it in any manner. Samuel Stillman, an American jurist, stated that freedom of religion is an inalienable right and that neither the state nor any individual can take any action to curtail or control the same. Thus, the right to religion is a fundamental natural right that is guaranteed by this provision.  

Patrick Henry, a delegate in the debates regarding the adoption of the Federal Constitution, stated that every person should have the right to speak freely on matters that affect the community as a whole, as such a right arises from the very law of nature. Similarly, Roger Sherman, while commenting on the committee reports on the creation of the Bill of Rights, stated that the right to a free press is a privileged right of every individual that is granted by God himself under the law of nature. Thus, it can be concluded that the 1st Amendment recognised and implemented fundamental natural rights.  

Amendment II

This Amendment allowed the people of America to keep and bear arms, i.e., the people were allowed by law to carry firearms with them. This provision was inserted with the intent of maintaining a military force for the purpose of the security of the United States. 

Stephen P. Halbrook, in his book titled ‘That Every Man Be Armed: The Evolution of a Constitutional Right’ stated that the right to keep and bear arms is a fundamental natural right that is available to all individuals under the law of nature. The purpose of this right was to ensure the security of oneself and society at large. He also interlinked the concept of self-preservation with the need to bear arms and stated that an individual has the fundamental natural right to preserve his life at the expense of the life of any other person, by using reasonable force against the threat being faced by him. This included the right to use a weapon in self-defence. Thus, the right to keep and bear arms under this amendment was indeed an extension of the principles of natural law. 

Amendment III

This Amendment provides that in time of war or peace, no soldier has the right to occupy and use the residential house of any other individual for any purpose except in the manner prescribed under any law for the time being in force. 

From this Amendment, it can be observed that the natural right of liberty and property has been recognised. Richard Bland, an English jurist, put forth the view that the law of nature encompasses different rights, and these rights primarily include the right to life, liberty, and property. Samuel Stillman stated that under natural law, all human beings are equal and have the right to equal freedom. No person has the right to encroach upon the freedom of another. He further opined that no person can interfere with the property of another or disturb the peaceful possession of the property by the rightful owner, as the same would be against the principles of natural law. He also condemned the individuals who would resort to such acts and stated that the community as a whole should stand against such individuals. The third President of the United States was of the view that every person has the natural right to acquire property and use it in a manner they deem fit in accordance with natural law. Thus, it can be concluded that the natural right to acquire and peacefully enjoy the property, without any interference has been recognised and implemented by this Amendment.  

Amendment IV 

This Amendment sought to protect individuals from unwarranted search and seizure of their person or property. It stated that for conducting search and seizure operations on any person or property, a duly authorised warrant should be issued that has details regarding the place or person to be searched and the objects or documents that are to be seized by the officials. Such warrants should be issued only if proper justification is provided for the same by the officials under oath. 

This Amendment has its roots in the natural right of privacy that is provided to every individual under the law of nature. Natural law provides individuals with equal freedoms and this freedom includes the right to conduct their affairs privately. Multiple US courts have held that the right to privacy has its foundation in natural law.  The Supreme Court of Michigan in Weeren v. Evening News Ass’n (1967) observed that the right to privacy is derived from natural law and that individuals are at liberty to live a life of privacy. In Norman v. City of Las Vegas (1947), the Nevada Supreme Court observed that the right to privacy originates from natural law and that this right is absolute in nature.  As to the rights against unlawful search and seizure, the Third Circuit Court of Pennsylvania in Zimmermann v. Wilson (1936) observed that searching any place without a just cause is a violation of the natural law of conducting one’s affairs in privacy.  Thus, it can be concluded that the natural right to privacy has been recognised and implemented by this Amendment.  

Amendment V 

This Amendment incorporated multiple rights that form the core of the justice system as we know it today. The rights guaranteed under this Amendment have been enumerated below:

1. No person shall be held liable for any crime unless he is charged by an appropriate court and is tried by following the due process of law. 
2. The rule of double jeopardy: no person shall be convicted of the same crime more than once. 
3. The rule of self-incrimination: No person shall be forced to act as a witness against himself during any criminal proceedings being initiated against him or any other person. 
4. The rights to life, liberty and property cannot be deprived by any action of the state without following the due process of law. 
5. The state shall not acquire any property for the purpose of public use unless just compensation has been paid to the owner of the property for such acquisition. 

As to the right to life, the Supreme Court of Iowa in Stokes v. Scott County (1859) observed that the right to life is a fundamental right that is secured by natural law and it cannot be taken away by any man-made law. James Madison, a delegate in the debates about the American Bill of Rights, stated that the roots of the right to liberty can be traced back to the law of God himself, i.e., the law of nature. He further stated that equality in freedom under natural law provides every individual with an equal right to liberty as well. The rule of self-incrimination is based on the natural right of self-preservation, i.e., no person should be compelled to perform an act that may lead to him compromising his life or liberty. Thus, it can be concluded that the natural right to life, liberty, property and self-preservation has been recognised and implemented by this Amendment.  

Amendment VI

This Amendment calls for a speedy and public trial in criminal cases to ensure that justice is not delayed. It also provides that in all criminal cases, the accused has the right to seek a trial by jury. The jurisdiction to try the accused is provided to the district court of the state where the offence has been committed. Further, the accused was also granted the following rights:

1. Right to be informed about the charges levelled against him. 
2. Right to present and cross-examine witnesses. 
3. Right to seek the assistance of counsel to represent his case.  

Amendment VII 

This Amendment dealt with the right to be tried by a jury. It provided that if the value of a suit was in excess of $20, then the defendant should be tried before a jury. 

Both Amendments VI and VII can be read parallelly, keeping in mind the common object, i.e., the right to be tried by a jury. Richard H. Lee, one of the founding fathers of the US Constitution, stated that the right to be tried before a jury is a natural right. However, under the American system, this right is not deemed a natural right. During the debates on the American Bill of Rights, James Madison was of the view that trial by jury could not be considered a natural right. He further added that this right is essential to secure justice for the community at large and also to ensure the liberty of all individuals. He also regarded the right to be tried by a jury as important as other natural rights, but also added that this right could be altered or abolished by the legislature if required. Thus, although there are conflicting opinions on whether the right to be tried by a jury is a natural right, this right still remains an essential right guaranteed by the US Constitution, and any person who is charged with a criminal offence for which he may be imprisoned for a term of 6 months or more has the right to seek a trial by jury. 

Amendment VIII 

This Amendment dealt with the imposition of unreasonable amounts for bail or as fines. It also prohibited the imposition of unreasonable punishments on individuals. This right also can be traced back to the natural right of life and liberty and the principle that the state shall not interfere with these rights unless under a procedure established by law. 

Amendment IX 

This Amendment provides that even if the Constitution does not expressly grant some rights to individuals, it should not be interpreted that such rights are not available to individuals. What can be inferred from this Amendment is that the law of nature and the rights that flow from it have been recognised as rights that are impliedly available to all individuals irrespective of any express mention of the same in the US Constitution or any other statute. The only condition precedent to it is that such rights should not be expressly barred by the US Constitution. This Amendment is a prime example of the recognition of the principles of natural law and its enforcement in American society. 

Amendment X 

This Amendment provides that any power that has not been delegated to the national government by the Constitution vests with the state government or the people if not expressly prohibited under the Constitution. The roots of this amendment can be traced back to the principle of subsidiarity under natural law. Due to the federal structure of the US Constitution, the national government does not have absolute power over the functioning of state governments, and it is the state government and the local bodies thereunder that perform tasks of public welfare and enforce law and order at the local levels.

The United States Declaration of Independence

The US Declaration of Independence was a document that raised the issues faced by American citizens against British colonial policies. This document raised allegations against the Crown for violating the English Constitution, enacting unlawful legislation, and oppressing the minorities in the country. It is pertinent to note that the drafters of this Declaration embedded the principles of natural law to support their arguments. One of the founding fathers and the third President of the United States, Thomas Jefferson was the pioneer in drafting the Declaration. While doing so, he time and again resorted to the violation of natural rights by the Crown. He stated that all human beings are created as equals by God, and God himself has provided all individuals with some inalienable rights. These rights are provided under the law of nature and include the rights to life and liberty and the right to pursue happiness. He further added that it is the duty of the government to act for the benefit of the people and help them secure these natural rights. In the event that the government fails to do so, the people have the right to demand the abolishment of the government and to form a new one. 

Thus, it can be observed that the principles of traditional natural law were invoked by Thomas Jefferson to allege the violations of natural rights by the Crown and to justify the American Revolution for removing the Crown and establishing a new government.  

Application of natural law in the US Constitution

Establishment of a limited government

The meaning of the term ‘limited government’ itself can be traced back to the principles of natural law. The natural law of tradition provides that the law of nature is an eternal law provided by God and that no man-made law can override or repeal it. Thus, the legislative government also does not have the power to override the law of nature, thus limiting the powers of the government. This principle was recognised and is embedded in the United States Constitution.

Firstly, let us discuss the provisions governing the three organs of American democracy, i.e., the legislature, the executive, and the judiciary. Article 1 of the US Constitution provides that all the powers granted to the legislature under the Constitution shall vest in the elected government. It is to be noted that the powers vested in the elected government are limited by this provision. Any powers which are beyond the scope of the Constitution cannot be exercised by the legislature. This implies the recognition of a supreme law and the duties of human beings thereunder. Article 2 of the US Constitution vests the executive power of the country in the duly elected American President. However, this provision also lists the powers that can be exercised by the President, thereby limiting his rights and not providing him with unwarranted power. Article 3 of the US Constitution empowers the judiciary to deal with specified categories of cases. Thus, the jurisdiction of courts is also limited to the extent prescribed by the Constitution.  

This application of the principle of limited government can also be seen in the principles of separation of powers and checks and balances that are embedded in the US Constitution. At the time of ratifying the US Constitution, the founding fathers put forth the view that each organ of the state should act in such a manner as to counteract the ambitious actions of individual organs so that they do not act ultra vires to the US Constitution. The principle of checks and balances ensures that every organ of the state acts within its specified boundaries and does not encroach on the powers and duties of one another. Thus, this principle ensures the sustainability of a government that is limited by power.  

The principle of subsidiarity

St. Thomas Aquinas gave a wide interpretation of the principle of subsidiarity. He stated that before the existence of a civil society that is governed by man-made laws, there existed a society that was based on relationships between individual families with their members and with other families in the society. These families can act together to maintain a peaceful society built on the principles of justice and equity. However, he posed a question regarding a scenario wherein these families, individually or as a group, fail to maintain a society that is peaceful and just, thereby leading to disorder in the society. The answer to this question was the establishment of a government that acted within the principles of the law of nature and provided for the establishment of a civil society that was peaceful and just. He believed that an independent government was the best possible way to meet the needs of a balanced society and that this government would be better equipped and more efficient than individuals, families, or private institutions to meet this goal. This, according to him, was the principle of subsidiarity. 

The US Constitution follows the principle of subsidiarity as provided under the law of nature. According to this principle, the elected government should undertake only those actions that cannot be performed by the family or private associations in a better or more efficient manner. Furthermore, whenever there arises a need for the government to perform a specific task, the task should be performed by the most local unit of the government that can efficiently perform the task. The existence of this principle in the US Constitution can be observed from the division of powers between the national and state governments. The national government does not have absolute power over the functioning of state governments, and it is the state government and the local bodies thereunder that perform tasks of public welfare and enforce law and order at the local levels. The 10th Amendment to the US Constitution further reinforced this principle by stating that any power that has not been delegated to the national government by the Constitution vests with the state government or the people if not expressly prohibited under the Constitution. The Federal Structure of the US Constitution is another example of the application of the principle of subsidiarity. The Constitution does not regulate the rights of every state government and provides them with the authority to draft state-level constitutions and other legislation to govern the affairs of the state at a local level. 

Natural rights

Natural rights can be defined as the very basic and fundamental rights that are guaranteed to all human beings, irrespective of whether such rights are recognised or provided under any law or custom. These rights originate from the law of nature and are deemed absolute, prohibiting the state from interfering with such rights. One of the most basic natural rights embedded in the US Constitution is the right to freedom and liberty. Several jurists, including the likes of John Locke, Jonas Clark, and Samuel Stillman, were of the view that all human beings are deemed to be equal under the law of nature and, thus, have equal rights to freedom and liberty.  They further say that no human being can infringe upon the natural rights of another since all human beings are creations of God and God has vested every human being with the same rights. Other natural rights guaranteed by the US Constitution include freedom of speech and press, freedom to profess any religion, the right to life, the right to self-defence, the right to assemble peacefully, etc. Notably, the right to reputation was also deemed as a natural right that emerged from the US Constitution in the case of Respublica vs. Oswald (1788) by the Supreme Court of Pennsylvania.

Several other rights are guaranteed to American citizens by restricting the powers of the state. The 1st Amendment to the US Constitution is the primary example of the same, which bars the government from enacting laws governing certain specified areas of law. The 14th Amendment to the US Constitution bars the states from denying individuals equal protection under the laws and also makes it mandatory that every person should be tried by following due process as established under law. Thus, through these provisions, the US Constitution protects the natural rights of every individual by prohibiting the state from interfering with the same. 

Judicial opinion on natural law 

Fundamental rights

Natural law has been time and again related to the fundamental right of life and liberty. These rights have been recognised as the basic rights which allow a human being to reach his full potential. The Supreme Court of Connecticut in the case of State v. Joyner (1993) observed that natural law was the foundation for the enactment of the Connecticut State Constitution and the state’s common law. Natural law was defined as the reasoning based on which people adopted constitutions. The Supreme Court of Alabama in McLendon v. State (1912) observed that natural law cannot be overridden by civil laws and that natural law acts as an implied limitation on the state’s power to legislate.

Laws against slavery

The most basic element of natural law is the right of a person to pursue a life filled with happiness. However, the rights of life and liberty guaranteed under natural law were severely affected by the advent of slavery in America from the very early days. Let us now try to understand the judicial view on slavery in the context of natural law. 

One of the significant cases in this regard was the case of Anderson v. Poindexter (1856) wherein the Supreme Court of Ohio observed that the act of slavery was in violation of the rules of reason and the principles of natural law and that the slave trade was in violation of the law of nature. It further noted that slavery was termed illegal under the American Constitution and, thus, the act of slavery is ultra vires to the Constitution. 

The Supreme Court of Virginia was the first court to discuss slavery in the context of natural law in the case of Pleasants vs. Pleasants (1981). While discussing the concept of slavery, the Court equated human beings to children of mother nature and observed that nature, which is free in itself, gives birth to children, i.e., human beings, and thus, human beings are also deemed to be free. The Court further noted that this freedom stems from the principles of natural law. Also, in the case of Hunter v. Fulcher (1829), the Supreme Court of Virginia tried to establish a link between natural law and the citizenship of slaves. The Court observed that when a slave is freed and is brought to a free state to reside as a free person, he is deemed to have acquired the citizenship of that state based on the principles of natural law. In the case of McElvain vs. Mudd (1870), the Supreme Court of Alabama observed that no person can be deprived of the proceeds of their labor and that doing so in the name of slavery is a violation of the principles of natural law. Also, the liberty of any individual cannot be deprived in the name of slavery because the right to life and liberty are basic rights that are guaranteed under the principles of natural law. 

Principles of equity

The term ‘equity’ is often confused with equality. However, there is a thin line of difference between the two. Whereas the concept of equality talks about giving equal rights and opportunities to all people, the concept of equity recognises that equality among the unequal is unjustified and aims to provide adequate rights and opportunities to people so that they can achieve an equal outcome. One of the first American cases that related the concept of equity to natural law was Vellinga vs. Vellinga (1989). Herein, Justice Henderson stated that even though there are rules of law and statutes which judges should follow while making decisions, if there is a need for any action to be undertaken by a judge on the basis of equity, he should do the same. Any equitable action undertaken by a judge finds its basis in the principles of natural law rather than in any established statute or prior judicial opinions. Natural law helps the judge to decide his course of action based on what is good for the parties involved. It also aids the judge in identifying unjust laws and avoiding their application while deciding cases.

In several states in the USA, the authority to act in an equitable manner has been granted to judges in the absence of any governing statute in the area of law concerned. Section 3955 of Chapter 50 of the United States Code of Service, the courts have been granted the power to provide relief based on the principles of equity. The Idaho Supreme Court in Climax v. Snake River Oncology of Eastern Idaho (2010) defined the term equity under the aforesaid statute as the spirit and habit of fairness, justness, and right dealing. 

In People ex rel. Attorney Gen. v. Folsom (1855), the Supreme Court of California examined a question wherein the property of a deceased son, who was a Mexican citizen, could be inherited by his mother, who was an American citizen. The issue arose because of the absence of any law that specifically dealt with this issue. However, the court noted that even in the absence of such a law, natural law will prevail, and thus, the mother can inherit her son’s property. In Jordan v. Jordan, Wentworth & Co. (1924), the Supreme Court of Washington was dealing with a case wherein assets were to be divided between creditors due to the bankruptcy of the defendant. The issue, however, was that there was no law which specified the manner of division of such assets. The court herein called for an equitable division of the assets and held that such a manner of division finds its roots in the concept of natural law. The Supreme Court of Missouri in Jim vs. State (1832) was dealing with the question of whether a judge should be disqualified from hearing a case in which he has a personal interest. Although there was no law in place for the disqualification of judges in such cases, the court observed that it is against natural equity and the moral sense of mankind to allow any person to judge a case wherein he has an interest in the subject matter involved. 

Family law

St. Thomas Aquinas stated that a person’s inclination to love and care for his offspring, educate the offspring, and provide them with the best possible environment for their growth can be traced back to the principles of natural law. He further stated that it was natural law that guided parents in teaching their children the rules of right conduct and that it was the duty of the parents to care for their children was imposed on them under natural law. The courts have also recognised the relationship between natural law and family law in various judgements. In the case of Rogers v. Yellowstone Park Co. (1974), the Supreme Court of Idaho observed that families are informal units of the government that are founded on the principles of natural life. Further, in Bickley v. Carter (1935), the Supreme Court of Arkansas held that marriage is a contract that is founded on the principles of natural law. A similar observation was made by the California Supreme Court in the case of Millar v. Millar (1917), wherein it was observed that the rights and duties of marriage are founded on the principles of natural law.    

Now let us look at a few cases wherein the parent’s duty toward their offspring was explored by the courts. In the case of Goodrich v. Goodrich (1870), the Supreme Court of Alabama defined marriage as a contract between a man and a woman wherein they acquire rights in the person of the other for mutual happiness, the production of children, and educating them. These rights, in turn, are derived from the principles of natural law. In the case of State ex rel. Harmon v. Utterback (1959), the Supreme Court of Appeals of West Virginia observed that the right to custody of a child claimed by a parent arises out of the natural law principles of caring for the offspring. This was further explained in the case of Ex parte Sullivan, (1981), wherein the Supreme Court of Alabama observed that the law of nature imposes a duty on the parents to take care of the child and provides them with the authority to bring up the child in a proper manner. It further noted that the authority of parents to provide for a proper upbringing for their children is a fundamental natural right. 

The Court, on multiple occasions, has also looked into the duty of the parents to provide maintenance for their children. The Supreme Court of Ohio in the case of Pretzinger v. Pretzinger (1887) observed that the duty of a parent to provide for the maintenance of his children is a duty imposed on the parent under the principles of natural law and the parent is under the obligation to live up to this duty to the best of his or her ability.  In the case of Harper v. Caskin (1979), the Supreme Court of Arkansas observed that the duty of the parent to support his child and provide child maintenance is not just a duty arising out of natural law but is also the legal and moral duty of the parent. These duties are owed both to the child and to society. 

It is not just care and maintenance, the courts have opined that the right to education is also a fundamental right of the child that originates from the principles of natural law. In the case of Zorach v. Clauson (1951), the Supreme Court of New York observed that parents are bound by natural law to educate their children, and they are also given the right to control the education in the manner best suited for the child. In furtherance of the same, the California Supreme Court in Serrano v. Priest (1971) observed that natural law provides for the education of children even if it comes at the expense of the public or the state. 

Commercial law

As mentioned earlier in the case of State vs. Joyner, natural law is seen as the foundation for common law as well. The courts in the USA have time and again relied on principles of common law that have been derived from natural law to govern contractual and commercial relationships between parties. The Supreme Court of Pennsylvania in Clark v. Slate Valley R. Co. (1890) observed that natural law governs contractual relationships, including those of partnerships, and it directs the partners to conduct themselves in a fair manner. Natural law guides the partners to conduct the business within the scope of the partnership.

The Supreme Court of West Virginia in the case of Farmers’ Bank v. Smith & Co. (1885) observed that, as per the principles of natural law, third parties who represent themselves as partners of a partnership firm, even though they do not hold such a position, for the purpose of obtaining some form of benefit, will be liable to make good any loss caused to any person that arises out of such a false representation. The Court of Appeals of Maryland in the case of Thomas vs. Green (1869) gave an extended interpretation of the principles of natural law. It states that if any person, who is not a partner, represents himself as a partner to any person and offers to fulfil any obligation, he should meet the obligation and ensure that such person is not defrauded due to his false representation.

While dealing with contractual obligations, the Supreme Court of Massachusetts in the case of May vs. Breed (1851) observed that in contractual relationships, any moral obligation that the parties have towards each other has its roots in natural law and that the parties should fulfil such moral obligations even after the legal obligations under the contract cease to exist.  The court further stated that natural law binds all parties to fulfil all their obligations through the principles of reason and good conscience.

Criminal law

St. Thomas Aquinas stated that the law governing the preservation of human life falls under the ambit of natural law. The courts in the USA have followed the same and have applied the principles of natural law while deciding criminal cases. In the case of State of New Jersey vs. Monahan (1954), Justice Oliphant observed that the state has the right to override the right to life under natural law in only two circumstances. Firstly, for the defence of the state and, secondly, for effecting punishments for crimes.

The Supreme Court of Colorado in Taylor vs. Welle (1960) observed that the right to life is an absolute right and that this right has its foundation in natural law. The legislature cannot make any law to abridge or impair this right. In the case of the State of West Virginia vs. Hobbs (1981), Justice Neely observed that the violation of natural law by any person shows his utter disregard for human life and establishes mens rea for committing an act of murder. In People of New York vs. Kendall Parker (1868), the Court of Appeals of New York held that natural law prohibits any intentional act intended to cause harm or injure any person, whether known or unknown.

The Supreme Court of North Carolina, in the case of the State of North Carolina vs. Norman (1989), viewed the concept of self-defence parallelly with natural law principles. It held that the right to kill in self-defence is a right based on necessity and reason and that it is an act undertaken to preserve one’s own life. Thus, this right falls under the scope of natural law. The Court of Appeals of Kentucky in the case of Brumback vs. Commonwealth (1885) made a similar observation and held that the right to kill in self-defence is inherently a natural right if it is the only way by which an individual can ensure the safety of his life. Reliance on this principle may vary based on the circumstances of each case. Self-defence was further related to the natural right of self-preservation, i.e., at the time of need or danger, an individual has the right under natural law to save his life at the expense of the life of the aggressor. However, this right is subject to the rule of reason.

The right of self-preservation has been examined by courts in different contexts as well. In the case of Harman vs. State (2008), the Supreme Court of Tennessee observed that when the defendant, who was under suspicion for his involvement in a criminal offence, acted based on the principle of self-preservation under natural law when he participated in the conference that police officials were having to investigate the crimes against him. In the case of  Bennett v. Standard Acc. Ins. Co. (1922), the Supreme Court of Missouri observed that in a case where the reason for the death of an individual cannot be ascertained as death or suicide, the burden of proof lies on the insurer to prove that the death was caused by suicide. This is because the court presumes that every person has a reason to love his life, and due to the principle of self-preservation under natural law, the presumption arises that no person will take his own life.  In the case of Peterson vs. Fargo-Moorhead Street Railroad Co. (1917), the Supreme Court of North Dakota observed that it is a general presumption under natural law that every person will take steps to preserve his body against any form of injury or pain that may lead to him not fully enjoying his body in the future. 

Decline of natural law in the United States

One of the primary reasons for the decline in the application of natural law principles in modern-day jurisprudence is the reliance on precedents. At the beginning of the American judicial system, heavy reliance was placed on the principles of natural law and its application. However, over time, with the increase in the number of judicial opinions, advocates resorted to relying on precedents to prove their points rather than resorting to natural law at its very core. In his book The Decline of Natural Law, Stuart Banner makes a significant observation in this regard. He stated that by the early 19th century, the number of case reports was around 500 volumes, and at the beginning of the 20th century, this number had increased to over 8,000 volumes. He believed that this was the reason why lawyers were more reliant on precedents than the principles of natural law itself. Another reason suggested by him for the decline of natural law was the multiple interpretations given to it for justifying one’s own cause, i.e., advocates had started to interpret natural law in a fashion best suited for them. This led to the issue regarding the efficiency of natural law principles while forming judicial opinions. 

In the case of Bowers vs. Hardwick (1986), the US Supreme Court observed that the judicial opinion of the Court is at risk when reliance is placed on judge-made constitutional law. What can be inferred from this judgment is that although precedent-based law has become significant in the judicial system, it cannot be relied on at all times as judges, like all human beings, are capable of committing mistakes that can lead to misinterpretation of the Constitution itself. Thus, there is a need for a renewed awareness of natural law so that the judicial system can appreciate, understand, and apply the rights guaranteed under the Constitution in an efficient manner. 

Conclusion

From the above discussion, one can conclude that the mandate of man-made law is connected to the principles of natural law in one way or another. The very process of enacting new laws and adopting them is driven by the rule of reason, which has its foundation in natural law. The courts have time and again sought aid from the rules of natural law to fill the lacuna in the ability to do justice in a fair and equitable manner under the existing legal regime. The general principles of natural law aid judges by providing them with a proper direction to do justice. However, judges must still exercise their reason to determine how the principles of natural law should be applied on a case-to-case basis.

References

1. LEAD ARTICLE: A Thomistic Perspective on Natural Law Reasoning in the Supreme Courts, 45 Ohio N.U.L. Rev. 301
2. ARTICLE: Natural Rights, Natural Law, and American Constitutions., 102 Yale L.J. 907
3. SYMPOSIUM: Natural Law v. Natural Rights: What Are They? How Do They Differ? The Association of American Law Schools, Jurisprudence Section — 1997: DO NATURAL RIGHTS DERIVE FROM NATURAL LAW?, 20 Harv. J.L. & Pub. Pol’y 695
4. ARTICLE: Natural Law as a “Work of Reason”: Understanding the Metaphysics of Participated Theonomy, 55 Am. J. Juris. 41
5. ARTICLE: A New Natural Law Reading of the Constitution, 78 La. L. Rev. 877
6. https://www.thoughtco.com/what-are-natural-rights-4108952 
7. https://www.thepublicdiscourse.com/2021/08/77439/#:~:text=To%20those%20who%20wrote%20and,of%20his%20power%20of%20choice. 

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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the types of torts under the American legal system and other important principles and remedies thereunder. 

It has been published by Rachit Garg.

Introduction

The American constitution has given the country a federal structure, and in total, the country consists of 50 states. This gives rise to a two-fold judicial system in the country, i.e., federal courts and state courts. The thin line of difference between these courts is the type of cases which can be heard by them and the jurisdictions vested in them. On the other hand, the American legal system can be broadly categorised into two parts, the criminal legal system and the civil legal system. Criminal law aims to punish individuals for acts committed against society and provides remedies in-rem, whereas civil law deals with the rights of individuals in persona.

The civil legal system comprises two things. Firstly, it provides remedies for breach of contracts and other commercial transactions; and secondly, it provides remedies for civil wrongs, i.e., the breach of duty owed to society at large by any individual. It is this facet of civil law that comprises the law of torts in the American legal system.  In simple words, a tort is a civil wrong which arises out of the operation of the law rather than an agreement between the parties. The US tort law has its roots in the English common law system and has evolved over time through several judicial decisions.

Now that we have a brief background on the American judicial and legal systems, let us understand the American law of torts in detail.

Types of torts in the USA

Intentional torts

The term ‘intention’ in intentional torts does not mean a malafide intent. Intent can be defined as the intent to do any act that violates the rights of any individual in a manner that is not sanctioned or allowed by law. This was further explained in the case of Bazley v. Tortorich (1981) wherein the Supreme Court of Louisiana observed that any person who consciously desires the physical result of his act, irrespective of the fact that such result is likely from his conduct or knows that his actions will have a certain result, irrespective of the fact that he desires such result, will be liable for the offence of intentional tort. In simple words, it is the end result that is the outcome of the act that is considered while determining if the tort is intentional or not.

Trespass

Another example of an intentional tort is trespass. Trespass is a rule that protects the landowner from any unauthorised entry on his property and provides the landowner with rights of exclusive possession and enjoyment of property. In the case of Porter vs. Kirkendoll (2018), the Court of Appeals of Washington, while dealing with a case of timber trespass, observed that when any person cuts or carries off any tree, plant or timber that is growing on the land of any other person, without the authorisation of the owner of the land, they will be liable for timber trespass. The Court further stated that because trespass is an intentional tort, timber trespass will also qualify as an intentional tort.  

Battery

A battery can be defined as any physical act done intentionally with the desire of causing harm to another person without the consent of that person. In the case of City of Miami v. Sanders  (1996), the Court of Appeal of Florida held that a battery is an intentional tort with two elements, intent and contact. It is further observed that a person is liable for battery if he acts intentionally to cause harm to another person or makes offensive contact with any person, thereby causing harm to such person directly or indirectly. However, in the absence of intent, no person can be liable for the tort of battery irrespective of the fact that the other person sustained any harm.

Assault

The term ‘assault’ can be defined as any action of an individual which is undertaken as an attempt to commit battery. In the case of Donohue v. Dominguez (2016), the Court of Appeals of Texas, while referring to the Texas Penal Code 1994 and the Texas Torts Claims Act 1969 observed that although the evidence required to prove civil and criminal assault is the same when relief is sought for civil assault, the action lies under the Texas Torts Claims Act 1969 because civil assault is an intentional tort.  

Infliction of emotional distress

In America, cases surrounding this area of tort are usually seen in the corporate world, wherein the employer inflicts emotional distress on the employees. However, the scope of the same is not limited to employer-employee relationships but extends to any person who causes emotional distress to another. In the landmark case of White v. Monsanto Co. (1991), the Louisiana Supreme Court laid down a three-fold test to determine cases of intentional infliction of emotional distress. Firstly, the conduct of the tortfeasor should be extreme and outrageous. Secondly, the emotional distress caused to the victim should be severe, and thirdly, the tortfeasor should have desired to inflict emotional distress on the victim. The Court further noted that the conduct of the tortfeasor should be so severe and extreme that it is regarded as atrocious and intolerable in a civilised society.

False imprisonment

False imprisonment can be defined as any act by which an individual who is not guilty of an offence, is accused and falsely imprisoned against his will. This act is unlawful and attracts the relief of compensation or damages under the American law of torts. False imprisonment was defined in the case of Marshall v. Heller (1882) as any unlawful act that restraints the personal liberty of another person or prevents the free movement of such a person according to his free will. It was in the case of Missouri Intergovernmental Risk Management Ass’n v. Gallagher Bassett Servs., Inc. (1993) that the Court of Appeals of Missouri held that falsely imprisoning any person without any legal justification amounts to an intentional tort on the part of the tortfeasor.

Negligence

In simple words, negligence can be defined as the failure to exercise the minimal amount of care that a prudent man would exercise in similar circumstances. A similar definition was provided by the Supreme Court of Colorado in the case of Slack v. Farmers Ins. Exch. (2000) wherein it stated that negligence is the failure of any person to exercise a particular standard of care that a prudent man would have exercised in a similar situation. It further stated that if any action falls below the established legal standards for the protection of people against any harm, it amounts to negligence unless done intentionally. Referring to Title 13, Article 21 of the Colorado Revised Statutes, the Court further observed that the term ‘tortious act’ includes any action that is negligent in nature.

In Tingler v. Graystone Homes, Inc. (298 Va. 63), the Supreme Court of Virginia observed that liability for negligence only arises when the party who conducted the negligent act owed a duty of care to the person against whom such a negligent act had been conducted. It further noted that in contractual relationships, if there is any duty owed by one party to the other outside the scope of the contract, a breach of such duty would give rise to an action under the tort of negligence.  

Product liability

Product liability accrues to any person who sells a defective product in the market which causes harm to the end consumer on account of such a defect. In the case of Jimenez v. Superior Court (2002), the Supreme Court of California observed that any manufacturer or retailer who supplies or distributes a defective product on the market that causes personal injury to any consumer who uses such product will be strictly liable in tort for the injuries caused. The Court, however, exempted service providers from the rule of product liability. In the case of E. River S.S. Corp. v. Transamerica Delaval (1986), the United States Supreme Court included product liability as a tort under maritime laws as well.

Vicarious liability

Vicarious liability accrues to the person due to his relationship with the tortfeasor. One of the most common examples of vicarious liability is an employer-employee relationship wherein the employer is vicariously liable for all acts of the employee conducted within the scope and course of employment. In M.P. v. City of Sacramento (2009), the Court of Appeal of California held that the vicarious liability of the employer extends to wilful criminal acts of the employee as well, if such act has a causal nexus with the work allotted to the employee. However, it is further observed that any act of sexual assault committed by the employee will be deemed to fall outside the scope of employment and the employer will not be held liable for the same. In the case of Burke v. Webb Boats (2001), the Supreme Court of Oklahoma observed that a master cannot be held vicariously liable for the acts of his servant even if the negligent act of the servant has caused harm to the plaintiff only in cases where no fault is directly attributable to the master.

Other important principles of the law of torts

Burden of proof

The burden of proof can be simply defined as the party who bears the burden of producing evidence to prove his claims against the opponent. In Weimer v. Hetrick (1987), the Court of Appeals of Maryland held that in order to prove liability in torts, the burden of proof is on the plaintiff who pleads the existence of a fact. The Court justified this proposition by stating that since it is the plaintiff who seeks relief from the court, his case must outweigh the case of the defendant, and thus, the burden of doing the same lies on the former.

Proximate cause

Proximate cause can be defined as the causal connection or nexus between the act of the tortfeasor and the injury caused to the victim. In Thomas v. Lusk (1994), the Court of Appeal of California observed that the burden of proving a causal nexus between the act of the tortfeasor and the injury caused is on the plaintiff. Also, the injury caused must not be remote and must result directly from the conduct of the tortfeasor. It was further held that there were several causes that led to the injury and the act of the tortfeasor contributed to only one of those causes. Therefore, the test of proximate cause failed.  

The Federal Torts Claims Act

The American legal system follows the doctrine of sovereign immunity. According to this doctrine, no suit can be initiated against the government or any government entity without the permission of the government itself. However, the Federal Torts Claims Act (FTCA) is an exception to this doctrine. This law allows individuals to file suits against the government and government officials for any injury sustained by them due to the actions of the former. In Lanus v. United States (2013), the US Supreme Court observed that the FTCA waives sovereign immunity and makes the government liable for the torts committed by government employees.

Provisions under the Federal Torts Claims Act (FTCA)

Definitions

Federal Agency

The term ‘federal agency’ was defined to include all three organs of the US government, i.e., the executive, the legislature, and the judiciary. It also includes all the military and private establishments of the US government. Further, any organisation that acts as an instrument of any of the US agencies is also deemed a Federal Agency. However, it does not include any contractors for the US government. 

An employee of the government 

The following individuals were deemed to be employees of the US government:

1. Employees of all Federal Agencies.
2. Officers of the defence forces of the US government.
3. Officers of the national guard of the US government.
4. Any individual who works in an official capacity on or behalf of the Federal Agencies of the US government, with or without compensation.
5. Any individual employed in the public defender’s office.

Acting within the scope of employment

This means that any individual who is acting within the line of duty in the course of their employment under a federal agency. 

Administrative Adjustment of Claims

This provision deals with the adjustment of claims raised against the US government. It allows the heads of federal agencies or any person designated by them to ascertain and determine any claim for damages that is raised against the agency. It further empowered them to make attempts to compromise or settle these claims. It is pertinent to note that these claims should have arisen from the loss of property or any personal injury or death that is a result of a negligent act or omission committed by an employee of the government in the course of his employment while acting within his line of duty.

A claim can be settled by the designated heads of agencies only if it is below $25,000. If the settlement amount is higher than $25,000, then they have to seek the prior approval of the Attorney General of the concerned state. However, the Attorney General is authorised to increase the upper limit for the settlement amount and allow the designated heads of state to settle amounts higher than $25,000 without his prior approval. The federal agencies are directed to resort to arbitration as a dispute resolution mechanism for compromising or settling the claim. The award passed by the arbitral tribunal in such cases is deemed final unless such award is obtained by fraud. 

For any amount that is below $2500, the head of the federal agency in question is directed to pay it out of the funds available to the agency for its operations. For any amount above $2500, it is to be paid by the head of the Federal Agency in question out of the funds available to the agency for the payment of damages ascertained by any court or tribunal of the United States. Once an individual accepts the settlement of his claim by accepting the amount of the award, he is estopped from claiming the same again in any court or tribunal, and the acceptance of his settlement constitutes a release of the United States government and its concerned employee against any subsequent claim on the same subject matter. 

Reports to Congress

The reports of all claims that are settled by the Federal Agencies should be sent to Congress annually by the designated heads of every Federal Agency. The report shall consist of details of the claimant, the amount claimed by him, the description of the claim, and the settlement amount.

Liability of the United States Government

This provision restricts the liability of the United States government with respect to the tortious claims raised against it. It provides that the US government is liable to the claimant in the same manner as any private individual would be liable for his tortious acts. However, unlike private individuals, the US government will not be liable to pay any form of punitive damages or any interest on the damages claimed prior to the receipt of the judgment. If the alleged tort was committed in any state that expressly provides for punitive damages as a remedy, the US government would be liable to pay the same. 

This provision also provides the government of the United States an opportunity to claim immunity for the acts of the employees of federal agencies. This claim of immunity acts as a defence for the torts committed by the employees. However, such defence claims should have a basis in existing legislation or judicial precedents. This defence shall be claimed by the Tennessee Valley Authority on behalf of the employees in question. 

Disposition of claims by the federal agencies

This provision entitles the employees of the government to immunity from any action initiated in any court of law in the United States for any negligent act committed by them that led to the loss of property of any person or caused any personal injury or death to any individual, i.e., any tortious act, unless the claim for damages has been first brought to the notice of the concerned federal agency. This claim should be denied by the federal agency in writing, and such claims should be disposed of within 6 months of the date of receipt of the claims. Once such a claim has been denied by the concerned Federal agency, the claimant has the opportunity to approach the courts of law for initiating an action against the tortfeasor and the immunity available to the government employees shall no longer subsist. However, any third-party claims, cross-claims or counterclaims are not included within the scope of this provision. 

Once a claim has been presented to the federal agency and has been denied by them, any action initiated by the claimant in any court of law shall not be for a sum greater than the actual claim that was presented to the federal agency. However, this is subject to the discovery of any new evidence that might result in an increase in the initially claimed damages. Also, the disposition of claims by the designated heads of the federal agencies is not deemed competent evidence for the acceptance of the liability by the concerned federal agency. 

Compromise

The Attorney General of the concerned state where the tort has been committed has the authority to call for arbitration between the claimant and the government. Further, he is also authorised to compromise and settle the claims arising out of the tortious acts of the employees of the United States government. 

Attorney fees and penalties

This provision prohibits attorneys from charging more than 25% of any award or compromise or settlement which has arisen out of a claim for tortious acts of government employees. If an attorney charges an amount in excess of 25% of the amount, he is liable to pay a fine of $2000 or may be subject to imprisonment for more than one year or both. 

Exclusiveness of the remedy

This provision states that the authority of the claimants to sue the federal agencies to realise their claims under the provisions of this Act is limited to the offences under this act. The federal agencies are immune from being sued under the provisions of any other act for the tortious liability of their employees. Also, the claimants cannot seek any other remedy other than what has been provided under the Act. 

It further provides that no claim can be raised against an employee of the government or his estate in an individual capacity, even if such employee has committed a tort against the claimant. However, this does not bar any individual from instituting a suit against an employee of the government for the violation of the United States Constitution or for the violation of any statute of the United States. 

The Attorney General of the concerned state where the tort was committed is authorised to deal with any case that is instituted against the government employees or their estate in an individual capacity. While dealing with such cases, the Attorney General shall first provide evidence as to the fact that the crime was committed by a government employee in the course of his employment while in the line of duty. Once this has been proved by the Attorney General, the case leveled against the government employee shall be deemed to have been leveled against the government of the United States.

If the Attorney General refuses to provide evidence for the same, the government employee in question has to provide evidence for the same during the trial. Once the Court is satisfied that the tort was committed by the employee in the course of his employment while he was in the line of duty,  the case leveled against the government employee shall be deemed to have been leveled against the government of the United States and the government of the United States will be substituted as the defendant in place of the government employee in question. If the court is not satisfied with the same, the employee will be tried as any other private individual who has committed a tort.  Once the government of the United States is substituted as the defendant, the limitation period of the claim is determined. The claim is said to have been filed during the limitation period if it was filed on the same date on which the tort was committed and the claim was presented to the concerned federal agency within 60 days of the dismissal of the civil action. However, the Attorney General may choose to settle the claim at the stage of the civil action instituted against the tortfeasor. 

Exceptions

This provision provided for multiple exceptions for the application of the FTCA. The same has been enumerated below.

1. If the alleged tortious act has been committed by an employee of the government while executing obligations under a statute provided he exercised due care while carrying out the obligations. 
2. Claims that arise out of the loss, miscarriage, or negligent transmission of letters or posts.
3. Claims arising out of the assessment and collection of taxes. 
4. Claims arising out of a loss caused due to the detention of goods by the customs or excise departments if:   

• The property was seized for the purpose of forfeiture under any of the US statutes.
• The interest of the claimant in the good was not forfeited, remitted or mitigated.
• The claimant was not convicted of the crime based on which his property was forfeited. 

5. Claims under admiralty statutes.
6. Claims for damages arising out of the imposition of quarantine rules in the United States.
7. claims for damages caused by the fiscal operations of the Treasury.
8. Claims arising out of the military activities of the defence forces of the United States or the Coast Guard during the war.
9. Claims that arise in a foreign country. 
10. Claims arising from the activities of the Tennessee Valley Authority, the Panama Canal Company, the Federal bank, the Federal intermediate credit bank, or the bank for cooperatives.

State-wise tort laws

Most states in the United States have legislation that governs the tortious liability of individuals in the state. Moreover, like the Federal Torts Claims Acts, several states, like California, Florida, Texas, Virginia, Washington, Massachusetts, New Jersey etc., have enacted their own state-level acts that deal with the claims arising from the loss of property or any personal injury or death that is a result of a negligent act or omission committed by an employee of the government in the course of his employment while acting within his line of duty. Let us now look into the common provisions under the statutes of different states that deal with the tortious liability of individuals. The following provisions are taken from the Georgia Tort Code. Identical or similar provisions exist in the tort codes of the other states as well. 

General provisions

Definition of tort

‘Tort’ has been defined as the violation of a private legal right by any individual. It also includes the violation of public duty by an individual if such a violation has given rise to a claim of special damages. It does not include a mere breach of contract. 

Ordinary diligence

It has been defined as the appropriate standard of care that is exercised by any prudent person in identical or similar circumstances.

Ordinary negligence

If any person fails to exercise ordinary diligence, he is said to have committed ordinary negligence. 

Extraordinary diligence

It raises the bar of ordinary diligence and can be defined as the extreme standard of care that is exercised by an extremely prudent person under identical or similar circumstances. 

Slight negligence

If any person fails to exercise extraordinary diligence, he is said to have committed slight negligence. 

Slight diligence

It has been defined as the minimal amount of care that all individuals should exercise with the application of common sense in identical or similar circumstances. 

Gross negligence

If any person fails to exercise slight diligence, he is said to have committed gross negligence. 

Recovery of damages for breach of legal duty

If any person has the legal duty to perform an act for the benefit of another or refrain from performing an act that may cause an injury to another, under any statute, a claim for damages may arise if the person breaches his legal duty and any individual suffers damages due to such breach. 

Rights arising from breach of public duty

For a claim for damages to arise due to a breach of public duty by any individual, the claimant should have suffered special damages. No action shall lie for any other form of damages even though the society at large has been affected due to the breach of the public duty.  

Rights arising from breach of public duty

Any individual can claim damages for breaches of private duties by another individual. Such duties arise out of statutory norms or from a contractual relationship between the parties. 

Liability for ratifying a tort

If a person commits a tort for his own benefit and the tort is ratified by another person, the ratifier will become liable for the tort committed. However, if the tort had been committed for the benefit of a third person and if such tort is ratified by any other person, the ratifier shall not be liable for the tort committed. 

Imputable negligence

Imputable negligence can be defined as the transfer of liability from the tortfeasor to another person for the commission of a tort. 

Basis for imputation of negligence

For the imputation of a tort from one person to the other, the person to whom the tort is imputed should be the principal of the tortfeasor or should share a relationship with the tortfeasor in a similar capacity. 

Liability for torts committed by the wife, child or servant

Every individual shall be imputed for the torts committed by his wife, his child or his servant if they are acting on his directions or for the purpose of his business. It includes the imputation of both negligent and voluntary torts committed by these individuals. 

Liability for malicious acts of a minor child

If any minor child, i.e., a child below the age of 18 years, commits a tort that damages the property of another or results in another person incurring reasonable medical expenses, the parent or guardian of the child will be charged with the liability of committing the tort and shall be liable for an amount not exceeding $10,000. The intent behind such an imputation is to prevent and control juvenile delinquency. 

Liability for torts of an independent employee

The employer is imputed with the torts of an independent employee only if such employee was acting on the direction of the employer while committing the tort. 

Liability for the negligence of a contractor

An employer is liable for the torts of his contractor in the following circumstances: 

1. When the act is a wrongful act and results in nuisance to others.
2. If the employer knows that the act in question may be dangerous to others, even if the utmost care is taken while performing the act.
3. If the act is in violation of a duty imposed on the employer under his contractual obligations. 
4. If the act is in violation of a legal duty imposed by a statute. 
5. If the act in question is committed directly at the direction of the employer or if the employer exercises a certain degree of control over the manner of performance of the act by the contractor. 
6. If the employer intentionally ratifies any tort committed by an independent contractor. 

Liability of owner for keeping vicious animals and for injuries caused by such animals

If the person who owns a vicious animal of any kind does not manage it properly and allows the animal to go at liberty, thereby causing any injury to any person without provocation by such person, he or she will be liable to pay damages for the injury caused. The liability arises when the animal in question is not on a leash. However, domestic livestock is exempted under this provision. 

Liability of owners and occupiers of land

General provisions

Duties of an owner or occupier of land toward an invitee

If any individual who is the owner or occupier of land invites any other person to come to the land for any lawful purpose, he will be liable for all injuries or damages that are caused due to his failure to exercise ordinary diligence in maintaining the land in a safe and secure manner for all the invitees. 

Duty of the owner of land to a licensee

The term ‘licensee’ was defined as any person who is allowed to enter the premises for his own interests with the prior authorisation of the landowner. It does not include any customer, servant or trespasser on the property. If the owner of the land causes any willful injury to the licensee, he will be liable to pay damages for the same.  

Duty of care of an owner or occupier of land towards trespassers

The owner or occupier of land owes no duty of care towards any trespasser on the land. However, he will be liable if he causes any willful injury to the trespasser and will have to pay damages for the same. 

Owner of property used for recreational purposes

Duty of owner towards individuals using the property for recreational purposes

The owner of the land does not owe any duty of care to any person who intends to use the property for recreational purposes. This includes having no duty of care towards keeping the property safe and secure for entry and use by such individuals; warning such individuals about any dangerous situation that may harm them; etc. 

Invitation or permission to use the land for recreational purposes

If the owner of the land or property invites or permits any person to use the property for recreational purposes, he is obligated to assure the safety and security of the property. The owner owes a duty of care towards such invitees and is liable for any injury that may be caused to such individuals due to the breach of the duty of care owed. 

Exceptions

The owner or occupier of land or property will be liable for any willful failure on their part to warn the individuals using the property for recreational purposes of any dangerous condition associated with it that may cause an injury to them.  

Liability of space flight entities

Definitions

Space flight entity

A space flight entity is any person who conducts space flight activities under the authorisation of the Federal Aviation Administration. It also includes the manufacturer and supplier of spacecraft equipment, employees or partners of the owner, manufacturer or supplier of the space flight entity, the owner of the property where the space flight activity is conducted, and any government department that is associated with the space flight activities.  

Space flight activities

This includes the launch and reentry of spacecraft or crew members; any activity occurring between the launch and reentry of spacecraft; descent and landing of spacecraft; post-landing recovery operations; and activities related to the embarking and disembarking of the launch vehicles. 

Space flight participant

Any person who is onboard the spacecraft, launch vehicle, or reentry vehicle. 

Civil or criminal liability for injuries during space flight

This provision provides civil and criminal immunity to the space flight entity for any injury caused to the space flight participant if the space flight participant has agreed to the risks associated with the space flight activities and provided informed consent for the same. However, if the injury in question was caused due to the gross negligence of the space flight entity, then it could be held liable for the same under both civil and criminal laws. 

Wrongful death

Persons entitled to initiate actions for wrongful death

The surviving spouse or in the absence of a surviving spouse, the children, whether minor or not, can initiate an action for the wrongful death. If the action is initiated by the surviving spouse, and the surviving spouse dies before the completion of the proceeding, the action can be continued by the child and in the case of the death of the child, by other surviving children.

Any amount that is received by the claimant in such cases shall be shared equally between the surviving spouse, children per capita, and the descendants of the children per stripe. In case a child has been born out of wedlock, such child shall also receive an equal share like that of a child born out of wedlock. 

Recovery by administrator or executor

If there is no surviving spouse or surviving child who can initiate an action for wrongful death, the action can be initiated by the executor or administrator of the deceased and the amount recovered shall be provided for the benefit of the next of kin of the deceased. 

Libel and slander

Definition of libel

A libel can be defined as a defamatory statement that is in writing or has been printed with the intention of injuring the reputation of any person by exposing the person to public hatred and contempt. Such a statement should be false and malicious in nature and it is mandatory that the defamatory statement is published. The term ‘publication’ has a wide scope and includes communication of the defamatory statement to any person other than the intended target. 

Definition of slander

Unlike libel that needs to be published, slander is an oral defamatory statement made by an individual that: 

1. imputes any other person for a crime or any act that may result in him being excluded from the society
2. makes allegations regarding his profession or trade with the intent of harming its reputation 
3. Any statement that may cause special damage to the intended target

Determination of malice 

In all cases of libel and slander, whether or not the statement made was malicious is determined on the basis of the allegations leveled against the individual. However, the maker of the statement can prove the absence of malice by providing evidence regarding the same, and it may act as a mitigating factor while determining damages. If the statement made is true and evidence is provided in this regard, it will be deemed a valid defence for libel or slander. 

The owner, licensee, operator, and employees of any visual or sound broadcasting agency will not be held liable for any defamatory statement made by a third party that is broadcast. However, if they fail to exercise ordinary care before broadcasting such defamatory statements, they can be held liable for the same. If a defamatory statement has been made by a candidate for election to any public office during a live broadcast, and the operator of the broadcast has taken ordinary care to prevent the utterance of such a defamatory statement, then there is no liability incurred by him.

Fraud and deceit

If the commission of a fraud by any person results in causing an injury to another, then the person who has committed the fraud will be liable to pay damages to the injured person. 

Misrepresentation of material fact

If any person misrepresents a material fact with the intent of inducing another person to act on the basis of that material fact and thereby causes an injury to such person, he shall be liable to pay damages for the same. However, if the material fact in question is concealed, then no liability arises unless the concealment causes injury to the other person and was made with the intent of inducing another person to act on it. The mens rea is accounted for on the basis of whether the person who concealed or misrepresented the material condition had knowledge that such concealment or misrepresentation would lead to his deceiving the other party and thereby causing an injury to such party. 

Further, if any person, with the intent of obtaining credit for the action of another, deceives a person by misrepresenting or concealing a material fact, then no liability shall arise unless such misrepresentation is made in writing and is signed by the deceiving party. 

Fraud by acts of silence

If any person acts as a bystander and does not disclose material information to a person regarding any transaction with the intent of enforcing that information later for his own benefit, he shall be liable for committing fraud against such person. 

False arrest

When any person is unlawfully arrested without any just and probable cause, he shall have a right to initiate an action of false arrest against the person who arrested him and claims damages for the same. 

False imprisonment

If any person unlawfully detains another person with the intent of depriving that person of his personal liberty, irrespective of the time for which such person is detained, he shall be liable for false imprisonment and damages can be claimed for the same.  

False imprisonment by several persons 

If two or more individuals unlawfully detain another person, action can be initiated against them both jointly or severally. 

Malicious prosecution

If any person is subjected to a criminal prosecution that was initiated with the malicious intent of causing damage to the reputation of the person prosecuted, and there exists no just or probable cause for initiating such a prosecution, an action for malicious prosecution can be initiated against such person, and he will be liable to pay damages.

Probable cause

It will be deemed that no probable cause exists for the initiation of prosecution if, by the standards of a reasonably prudent man, no just cause exists for such prosecution and the proceedings were initiated with the intent of harming the reputation of the person who is being prosecuted. If it is established that no probable cause exists, it is deemed that the prosecution is malicious in nature. 

Damages

Damages for malicious prosecution are calculated on the basis of the loss to reputation suffered by the person who is maliciously prosecuted and any other aggravating circumstances that shall be decided on a case-to-case basis. 

Real estate torts

Interference with the enjoyment of property

The owner of a property has the absolute right to enjoy the such property and any person who interferes with this right of enjoyment shall be liable for an action in tort and will have to pay damages for any injury caused due to such interference. This right also extends to those who are mere possessors of the property. They can also initiate an action for damages if their right to the enjoyment of the property is violated. 

Trespass

Both the owner and the occupier of any land or property have the authority to initiate an action for trespass against any person who enters the land without their prior permission. However, if there are two people who claim to have possession of the land, the person who has the original and legal title documents for the land will be deemed as the owner, and the other person will be deemed as the trespasser. 

Continuous trespass

Before an action for trespass is initiated, all trespasses committed by a person on land shall be deemed to be continuous in nature, and the action initiated shall be for a continuous trespass. However, after an action has been initiated, every act of trespass shall be considered a new tort and a new action should be initiated for the same.  

Rights of owner

An owner of land has the legal right over everything that exists below and above the land, and if any person interferes with such a right, an action in tort can be initiated by the owner. This right includes the right over the groundwater below the property and the streams that flow over the property. 

Slander or libel on the title of property

If any person makes a defamatory statement in the form of a libel or slander regarding the title of any property, the owner of the property can initiate an action for the same if the title suffers any injury due to the libellous or slanderous statement. 

Defences against tortious liability

Authorisation to act

The person who has committed the tort can provide evidence as to the fact that the tort in question was committed under the authorisation of any other person or under a statutory obligation. If evidence is provided and admitted in this regard, it is deemed that the act was committed by the defendant but the liability does not accrue to him. The liability accrues on the person who had authorised the act. 

Consent

If any person commits a tort against another with the consent of the other party, no claim for damages can be raised against him. It should be proved that such consent was not obtained by fraud or misrepresentation and that the person of sound mind had given his free consent to the commission of tort against him. Minors are an exception to this provision as their consent is not deemed to be valid consent. 

Pendency of other actions

If the claimant has already initiated an action in any court of law having appropriate jurisdiction against a tortfeasor and the suit is pending final judgement, then no new suit can be initiated by the same party against the same tortfeasor if the cause of action is the same. Also, if a claimant has already claimed and recovered damages for the commission of a tort, the initiation of the new action is prohibited from claiming damages arising out of the same tort. 

Failure of plaintiff to avoid consequences

If the injuries sustained due to any tort could have been avoided by the plaintiff by exercising ordinary diligence and he has failed to do so, then no claim for damages can be raised against the tortfeasor.

Self-defence

Every individual has the right to use force or threaten to use force for the purpose of self-defence, the defence of any other person, the defence of a habitation or the defence of any property other than a habitation. Such force should be reasonable and justified in accordance with the threat against which such force is used. No civil action can be initiated against a person acting in self-defence for the protection of himself, his property, or any other person and their property. 

Providing damages

If the individual who has committed a tort provides damages to the victim for the injuries suffered by the tort, no action can be initiated if the damages so paid are proportionate to the injury caused. If the victim does not accept such damages and initiates an action in a court of law, the tortfeasor shall submit the damages to the court itself prior to the commencement of trial. If the court is of the opinion that the damages are proportionate to the injury caused and no further damages need to be paid, no further trial shall progress and the damages submitted to the court are provided to the claimant.  

Tort as a crime

In the event that an individual commits a tort that constitutes a criminal offence, he shall seek compensation for the injuries suffered by him in a court of law. However, if the tort does not constitute the commission of a criminal offence, the parties may attempt to settle the dispute out of court. 

Damages

Types of damages

Generally, there are two types of damages that are awarded by the court, i.e., special damages and general damages. However, there are other forms of damages as well that are awarded on a case-to-case basis, as mentioned below. 

General damages

These forms of damages can be recovered without the production of any evidence relating to the claimed amount. These damages are provided for the direct or consequential injuries caused to the claimant by the commission of the tortious act.

Special damages

These damages are also paid for the direct or consequential injuries caused to the claimant by the commission of the tortious act. However, evidence has to be provided as to the loss or injury caused to the claimant that gives rise to a claim of special damages. 

Direct damages

Direct damages are paid for the injuries that directly flow from the commission of the tortious act. There should be no other factor involved in causing such an injury.

Consequential damages

Consequential damages are paid for injuries that are caused due to the tortious act, but the commission of the tortious act was not the only factor that led to such an injury. The injury might be an indirect consequence of the tortious act. 

Additional damages

If the tortious act committed by any person gives rise to aggravated circumstances, i.e., if the act itself or the intention behind the commission of the act was to target the claimant and cause him injury, the court may award additional damages. The reason behind awarding additional damages is to deter the tortfeasor from committing such acts in the future and also to compensate the claimant for the aggravating injuries sustained by him. 

Nominal damages

If the injury suffered by the claimant is not serious and the tortfeasor has provided evidence as to mitigating circumstances acting in his favour, the court shall award only nominal damages to the claimant. 

Punitive damages

Like additional damages, punitive damages arise out of aggravating circumstances that result from the act of the tortfeasor. These damages are provided as a punishment to the tortfeasor so as to deter the tortfeasor from committing such acts in the future. These are also known as vindictive or exemplary damages. Special evidence has to be provided by the claimant to show the existence of aggravating circumstances. 

Injury to peace, happiness and feelings

If the action is initiated for a tort that has resulted in injuring the peace, happiness, or feelings of any person, the damages are decided on the basis of the conscience of the court. Punitive or additional damages cannot be awarded in such cases. 

Remedies under the law of torts

The primary remedies available under the law of torts are compensation or damages that are provided to the victim for the injury suffered. The remedies can be classified into two categories, i.e., judicial and extrajudicial.

Judicial remedies

Judicial remedies include, firstly, the provision of damages to the victim. Damages can take multiple forms, including contemptuous, nominal, substantial, and punitive or exemplary damages. Secondly, it includes the grant of both temporary or permanent injunction to the victim and, thirdly, the specific restitution of the property, i.e., the returning of goods to the victim of which he was wrongfully dispossessed.

Extra-judicial remedies

Extra-judicial remedies include expulsion of the trespasser using reasonable force and barring him from re-entry, abatement i.e., removal of the object which causes the nuisance, and re-capture of goods which were unlawfully taken etc.

Conclusion

The aforesaid list of torts is inclusive and not exhaustive in nature. There are several other torts which are actionable in the USA, and these include the torts of defamation, malicious prosecution, violation of privacy, wrongful termination of employment etc. Also, due to its federal structure, the tortious laws of each state in the USA might vary from one another as well. The core principles governing the law of torts, however, remain the same throughout.

References

1. https://www.fwlaw.com/insights/tort-law-united-states 
2. https://www.law.cornell.edu/wex/tort 
3. TEACHING TORTS:INTRODUCTION TO THE LAW OF TORTS*, * This essay is a revised and enlarged version of an introductory lecture published in Joseph W. Little & Lyrissa Barnett Lidsky, Torts: The Civil Law of Reparation for Harm Done by Wrongful Act: Teacher’s Guide 11-29 (2d ed. 1997). Reprinted by permission. Copyright 1997, Matthew Bender & Company Incorporated. All rights reserved., 45 St. Louis L.J. 715
4. ARTICLE: PERSONAL RESPONSIBILITY AND THE LAW OF TORTS, 45 Am. U.L. Rev. 1245

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This article is written by Satyaki Deb, an LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive analysis of the significant Minsk Agreements from a neutral viewpoint.

It has been published by Rachit Garg.

Introduction

The outbreak of the unfortunate war between the Ukrainian Government and the Russian/separatist forces on 24th February 2022, after roughly 7 years of punctuated peace, has once again brought the Minsk Agreement to the limelight of the world. The roots of this major deadly conflict, drenched in the blood of thousands of human casualties and enveloped with the dire possibility of a nuclear (world) war can be traced back to 2014 and 2015 when the Minsk Agreements I and II were respectively signed before going gradually further into the time when the cold war ended and the USSR broke up. A study of these roots/factors that culminated in the Russo-Ukrainian conflicts from 2014 to 2022 and a deeper analysis of the geo-political aspirations of this hotbed through an unbiased historical lens as far as practicable cannot be left out while attempting to comprehend and appreciate the full canvas of the Minsk Agreements. The short-term and long-term outcomes of the current Russo-Ukrainian war are still unknown and gravely feared (here is an interactive map of the Russian invasion of Ukraine), but a big lobby indeed believes that it is the Minsk Agreement’s proper implementation that can tend to peace in these boiling zones of war and conflict. Another big lobby firmly believes that the Minsk Agreements have progressively lost their practical value as they believe that the war was not started and fought to gain the special status of the conflicted areas as granted by the Minsk Agreements. Though it is commonly said that history is written by the winners of wars, this article will still aspire to portray the complete dimensions of the Minsk Agreements from a neutral standpoint.

Brief background of the Minsk Agreements : historical and political perspective

The Minsk Agreements cannot be studied in isolation from the historical and political perspectives that envelope and perhaps steer them. It was not in 2014 but in August of 2008 when Europe witnessed the first war of the twenty-first century. On August 8, 2008, the Russian forces started a brief war in Caucasus (Georgia) and the muted international reaction to this war perhaps encouraged Russia to become more daring in dealing with the Russia and NATO confrontations. Yes, if a correct but oversimplified statement can be said to be the propellant behind the background of the Russia-Ukraine crisis, it is this- Russia and the North Atlantic Treaty Organization (NATO)’s a confrontation with each other is behind this. Is it just like the cold war of the previous century? Now, that answer is a no, but then again, that’s a prima facie answer. At the core of any struggle or war, just like the cold war of the last century, this crisis is indeed the same though. It all boils down to a power struggle in the unfortunate but still seemingly bipolar world of international politics, a (cold) battle for dominance between the West and Russia.

After the breakdown of the USSR in 1991, the West was vigilant and determined to orchestrate the flow of international politics in a manner that would ensure that the USSR was never revived in the post-Soviet era in any format whatsoever. So, Russia’s integration efforts via the creation of the Commonwealth of Independent States (CIS), the Eurasian Economic Union (EEU/EEAU) etc. were countered inter alia by the European Union’s (EU) Eastern Partnership (EaP). Now, Ukraine is a part of both the CIS of Russia and the EaP of the EU as is clear from their members’ lists. Naturally, Ukraine became the object of power rivalry between the EU and Russia, as both wanted to be the ones influencing Ukraine. It will not be too wrong to say that in the power tussle between the West and Russia, Ukraine, instead of becoming the peaceful and protected buffer zone, became the unfortunate war zone, sandwiched between their historic and political rivalries.

So, this tug-of-war of influencing Ukraine centred around the proposed Association Agreement (AA) of Ukraine with the European Union and its Russian counterpart- the EEU/EEAU. The AA was supposed to gradually help Ukraine become a full-fledged member of the EU. But Russia was very unhappy and worried about the growing influence of the EU in eastern Europe. It is imperative to mention here that a lot of Russians living in Ukraine back then considered themselves to be culturally and historically part of Russia. So, in 2013, the then Ukrainian-President, Viktor Yanukovich, chose not to sign the AA with the EU. But this led to the pro-European ‘Euromaidan’ protests in Ukraine and led to the impeachment of Viktor Yanukovich in February 2014. Thereafter, the interim Ukraine Prime Minister Arseniy Yatsenyuk signed the political part of the AA with the EU. All these made Russia worried and angry and made her carry out the annexation of Crimea in March 2014.

The war that broke out after that between Ukraine and Russian-backed separatists (mainly from Donetsk and Luhansk regions) came to a momentary pause on the 5th of September, 2014, when in the Belarusian capital Minsk, a 12-point ceasefire agreement was signed between Ukraine, Russia, the Organisation for Security and Cooperation in Europe (OSCE) and the pro-Russia leaders from Donetsk and Luhansk regions. This agreement is also referred to as the Minsk Agreement I or the “Protocol on the results of consultations of the Trilateral Contact Group”.

Unfortunately, the Minsk Agreement I was not sufficient to keep peace and the ceasefire broke. Fighting continued once again and the Normandy Four (Russia, Ukraine, France, and Germany) met at a summit in Minsk on 12th February 2015 and agreed on a new 13-point ceasefire agreement consisting of a package of measures to implement the Minsk Agreement I. This new agreement is referred to as the Minsk Agreement II or the “Package of Measures for the Implementation of the Minsk Agreements”.

Clauses of the Minsk Agreements

After understanding the events that led to the signing of the Minsk Agreements, it is time to see the clauses of the agreements. They are discussed as follows:

Minsk Agreement I

The Minsk Agreement I is often referred to as the “Protocol on the results of consultations of the Trilateral Contact Group”. Herein, the ‘Trilateral Contact Group’ consisted of Russia, Ukraine and the OSCE. The clauses of the Minsk Agreement I (5th September 2014) that aimed to cease the war are portrayed in a simple manner as below:

1. To ensure the immediate bilateral ceasefire by immediate cessation of the use of weapons.
2. To have an effective ceasefire, OSCE is to verify and monitor the non-use of weapons.
3. To implement decentralization of power and grant the interim status of local self-government to the eastern Ukraine regions of Donbass (Donetsk and Luhansk) by enacting a ‘special status’ law under Ukrainian law.
4. To ensure permanent monitoring of the Russian-Ukrainian border and which is to be verified by the OSCE and setting up of security areas in the border areas of the two countries.
5. To ensure the immediate release of all hostages and illegally detained persons by both countries.
6. To ensure that a law is enacted that prevents the prosecution and punishment of people with regard to certain events in the Donetsk and Luhansk regions.
7. To ensure the continuity of inclusive national dialogue.
8. To ensure the adoption of measures that improve the human rights situations in the Donbass region.
9. To ensure the holding of early local elections or snap local elections in the Donetsk and Luhansk regions by virtue of the special status law enacted under Ukrainian law.
10. To ensure the removal of all illegal military units, military hardware, fighters, and mercenaries from Ukrainian soil.
11. To ensure the adoption of a program that resurrects the economic and other vital activities of the Donbass region.
12. To ensure the provision of personal security guarantees for the participants of the consultations. The participants and signatories were Heidi Tagliavini (Ambassador, OSCE), L.D. Kuchma (the second President of Ukraine),  M. Y. Zurabov (Ambassador of Russia to Ukraine),  A.W. Zakharchenko (separatist leader of Donetsk) and I.W. Plotnitski  (separatist leader of Luhansk).

In order to implement the Minsk Agreement I steps were taken and two weeks later, on 19th September 2014, a “Memorandum on the Implementation of the Provisions of the Protocol on the Outcome of Consultations of the Trilateral Contact Group on Joint Steps Aimed at the Implementation of the Peace Plan” was formulated. This memorandum consisted of nine measures to strengthen the bilateral ceasefire agreement. The participants and signatories were the same as in Minsk Agreement I.

But unfortunately, ceasefire and peace failed to rise from the horizons of the Minsk Agreement I  and the fighting continued.

Minsk Agreement II

After the failed attempts of the Trilateral Contact Group to maintain a ceasefire and usher in peace, the Normandy Four (Russia, Ukraine, France, and Germany) came into the picture and helped in the devising of a new 13-point package of measures to implement the Minsk Agreement I on 12th February 2015. This new package of measures that was formulated is the Minsk Agreement II, and it has the same signatories as the Minsk Agreement I. Its clauses are discussed in a simple manner as follows:

1. Starting from 00.00 AM (Kiev Time) on 15th February 2015, an immediate and comprehensive ceasefire should be strictly implemented in the Donetsk and Luhansk regions of eastern Ukraine.
2. OSCE should facilitate while being supported by the Trilateral Contact Group, the withdrawal of heavy weaponry by both sides on equal distances and this withdrawal should be started within a maximum of 2 days of the ceasefire and be finished by 14 days at the latest. The agreement specifically laid down the equal distances to be maintained for the withdrawal along with the respective heavy weaponry. They are as follows: 

• An equal distance of 50 km width for artillery systems with a caliber greater than 100 mm.
• An equal distance (security zone) of 70 km width for  Multiple Launch Rocket Systems (MLRS).
• For the MLRS “Tornado-C”, “Uragan”, “Smerch” and Tactical missile systems “Tochka” (“Tochka U”), the security zone should be 140 km.

Also, the point from where the equal distances should start was marked clearly. They are:

• For the Ukrainian forces, they should withdraw the heavy weapons from the de facto line of contact. 
• For the separatist forces of the Donetsk and Luhansk regions, they should withdraw their heavy weapons from the line of contact as envisaged in the Minsk Memorandum for the implementation of Minsk Agreement I (of September 19, 2014).

3. With the aid of all possible technical pieces of equipment like drones, radar, satellites etc., the OSCE should ensure effective monitoring and verification of the ceasefire regime and withdrawal of heavy weaponry from the very first day of weapons withdrawal.
4. On the very first day of the withdrawal of the heavy weaponry, dialogues should be started regarding the modalities of local elections to form interim local self-governments and their future regimes in the Donetsk and Luhansk regions under the ambit of Ukrainian laws. To this end, within a maximum of 30 days of the signing of the Minsk Agreement II, a resolution should be passed by the Ukrainian Parliament specifying the areas that should enjoy the special status regime of local self-governments in accordance with the Minsk Memorandum of September 19, 2014.
5. Laws should be enacted to ensure that prosecution and punishment of persons in connection with the events in certain areas of the Donetsk and Luhansk regions are pardoned officially.
6. By the fifth day of withdrawal of heavy weaponry, all hostages and the people illegally detained should be released and exchanged based on the principle of “all for all”.
7. As per international mechanisms, safe access, delivery, storage, and distribution of humanitarian assistance to the needy should be ensured.
8. Modalities should be clearly laid down that ensure the revival of socio-economic ties including social transfers (such as a pension), payments, revenue, utility bills, taxation etc. within the Ukrainian legal framework and if required international mechanisms to facilitate such transfers might be used. For this purpose, the banking segment’s control in the conflicted areas is to be reinstated by Ukraine.
9. Beginning from day 1 after the local elections and by the end of 2015 when the comprehensive political settlement (by local elections and constitutional reforms) is over, complete control of the state border should be reinstated by the Ukrainian government throughout the conflicted areas. To this end, paragraph 11 of this agreement should be implemented properly upon due consultations and agreements with the separatist leaders of the Donetsk and Luhansk regions within the framework of the Trilateral Contact Group.
10. OSCE should monitor the withdrawal of all foreign military units, formations, types of equipment, and mercenaries from Ukrainian soil and all illegal groups should be disarmed.
11. Constitutional reforms should be carried out in Ukraine and by the end of 2015, a new Ukrainian Constitution should come into force. The constitutional reforms should provide for decentralization as a key element while including references to the special status of the Donetsk and Luhansk regions as per the agreements with the separatist leaders of these areas. Further, permanent legislation containing various measures should be adopted to grant this special status to these regions. Some of these measures, as envisaged in the agreement, should be-

• Exemption from prosecution, discrimination and punishment regarding certain events in the Donetsk and Luhansk regions.
• Measures that protect the right to linguistic self-determination.
• The local self-governments should participate in the appointment of heads of the courts and public prosecution offices in the Donetsk and Luhansk regions.
• The measures should contain the possibility of tie-ups with governmental authorities and organs of the local self-government for the economic, social and cultural development of the Donetsk and Luhansk regions.
• The measures should oblige the central government authorities to support cross-border cooperation between the Donetsk and Luhansk regions and the neighboring districts of Russia.
• The measures should empower the local councils to decide and create people’s police units for the maintenance of public order in the Donetsk and Luhansk regions.

12. Elections to establish local self-governments should be in conformity with OSCE standards. These local elections are to be held as per Ukrainian law and based on agreements made with representatives of the Donetsk and Luhansk regions. All these should be monitored by the OSCE/ODIHR (Office for Democratic Institutions and Human Rights).
13. The work of the Trilateral Contact Group should be intensified to implement the relevant provisions of the Minsk Agreements. To this end, working groups should be established which should also reflect the composition of the Trilateral Contact Group.

It can be clearly seen from the above clauses that peace was the desired outcome of the agreement in a manner that was acceptable to all parties to the war. But reality speaks differently and we are forced to ask if peace was ever an option for the leaders of this war. What went wrong with the Minsk agreements? Are any amendments necessary to the agreements to usher in peace? Or do we need a Minsk Agreement III? The following discussions will try to answer some of these burning questions from an analytical viewpoint as far as practicable.   

Analytical significance of the Minsk Agreements : a failure or a way forward

No one knows the ultimate result of the current Russian-Ukraine crisis, its scope of future recurrence and when durable peace would emerge, but the Minsk Agreements that were supposed to help definitively answer these-  are they a failure or a way forward? Perhaps an analysis of these agreements will give us a better perspective of the same.

Amidst divergent viewpoints, the most common and accepted view regarding these agreements is that the conflicts started once again at the cost of peace due to different interpretations of the clauses of these agreements. Ukraine saw this as an opportunity to restore her sovereignty and regain control of her borders, while Russia interpreted the same as a way of handicapping Ukraine by creating proxy governments in the name of local self-governments in the Donetsk and Luhansk regions. For the purposes of clarity, it is best to take a deeper look at these conflicting interpretations.

At the outset of briefly studying the conflicting interpretations of the Minsk Agreements, it is pertinent to mention that the reason for these conflicting interpretations was that the negotiators of the Minsk Agreements pursued differing goals at the very least, if not opposing goals.

Historically, Ukraine stayed within Russia’s sphere of influence for about three and a half centuries, from about 1654 to 1991. So, Russia believed that the self-governing Donetsk and Luhansk regions would ensure that Ukraine would fail to become a member of the EU and/or NATO. This logic and interpretation of Russia were built on a myth or delusion that territorial conflicts in a country would automatically disqualify the country from becoming a NATO member. Now, the veracity of this myth or delusion of Russia, which acted as one of the strong pillars behind her self-serving interpretations of the Minsk Agreements, is beyond the scope of this article, but no official NATO documents confirm this myth for NATO membership criteria.

Ukraine and the EU were not far behind in their own self-serving interpretations either, and such interpretations will be analyzed shortly in the next phase of this analysis. As pointed out shortly before, all these self-serving conflicting interpretations can be traced back to the differing (or even opposing) goals of the negotiators that were built on differing priorities. All these previous and inter alia subsequent studies of conflicting interpretations of the Minsk Agreements will eventually lead us to ask why durable peace was not the first priority of the negotiators. Why were the clauses left ambiguous? Was the ambiguity a mere product of haste or was furthering deeper objectives the shadow goal? The agreements show only the Russian ambassador to Ukraine as a signatory, but why was Russia as a country not a signatory like Ukraine? Why did Russia continue to behave as a merely disinterested arbiter? Was it so that Russia could favor the implementation of the pro-Russian clauses and avoid the anti-Russian clauses by avoiding responsibilities? Or was it because the special status of the Donbass areas was not enough to serve Russia’s interests? Unfortunately, the article can only logically speculate about the minds of the Kremlin in an attempt to comprehend their interpretations of the Minsk Agreements.

One of the major sources of the conflicting interpretations of the Minsk Agreement II was the sheer fact that the clauses did not orderly mention the priority order for the implementation of the political and military aspects of the clauses.

Exploiting this ambiguity, Ukraine interpreted the clauses and wanted the pro-Russian armed forces to withdraw completely first and then only conduct local elections for self-governance. In other words, Ukraine wanted to regain full control of its border first and then, only thereafter, grant some powers of self-governance to the Donetsk and Luhansk regions. This interpretation of the Minsk Agreements can be viewed as Ukraine’s attempt to regain her full sovereignty and be fully independent regarding her foreign policies.

Russia, on the other hand, from the very first day of the withdrawal of heavy weaponry, wanted dialogues for local elections that would grant self-governance to the Donbass regions. To this end, within 30 days of the signing of the Minsk Agreement II, Russia wanted the Ukrainian Parliament (Verkhovna Rada) to pass a resolution identifying the exact areas for self-governance. And after the local elections have taken place as per the Minsk Memorandum of 19th September 2014, only then can Ukraine enjoy the restoration of control of her state borders.

These conflicting interpretations can be compared to the chicken-egg dilemma or the scenario where neither of the two duelists is ready to blink first in fear that the other will gain an advantage and implement her own deeper objectives/priorities through this advantage.

Unfortunately, on top of these conflicting interpretations, the EU did not take any side regarding these varying interpretations nor gave any interpretation of its own that would resolve the contradictory nature of the clauses. Such a stance did nothing but fuel and deepen the crevices of mistrust and fear further.

After 2014 and 2015, it is true that intermittent attempts were made by various modes and various parties to bring peace by implementing the Minsk Agreements, but no options for implementation were becoming mutually acceptable. Under these circumstances, Russia, fearing that Ukraine was biding her time to side with the west and gain their various memberships gradually, declared a “special military operation” to “demilitarize and denazify” Ukraine on 24th February 2022.

So, to address the burning question raised earlier- are the Minsk Agreements a failure? Or are they the way forward? A big lobby argues that owing to the inherent structural fallacies in the clauses of the agreements which hinder their implementation, the Minsk Agreements are indeed failures. The contrary view is that the ambiguities need to be addressed, and through amendments, the Minsk Agreements may be made the way forward to durable peace. Debates over which view is right are pointless for the views are very much subjective at their cores. But it can be agreed that in the present format, the Minsk Agreements cannot usher in peace. Especially the key points of ambiguity like the order of priority while implementing the military and political aspects of the clauses, defining the constitutional reforms of Ukraine so that Russia may not discard the same later as being dissatisfied, making sure that the signatories do not further create any ambiguous clauses and end up signing on them etc.

Conclusion

The foregoing analytical discussions may want us to tear down the Minsk Agreements as big failures, and may perhaps rightly so. But if we remove the veil of the gross failures from these agreements, we shall see that, to some extent, they brought peace in the Donbass regions before the 2022 war started. The violence did not stop, but it was indeed reduced by virtue of these agreements. It was a bad peace, but isn’t a bad peace better than no peace at all? The design flaws and lack of political will of the parties for implementation should be blamed and not the sheer clauses of the Minsk Agreements. The solution may lie in a well-drafted Minsk Agreement III that inter alia envisages the use of UN peacekeeping forces in the disturbed areas along with their mode of usage. The seeds of fear and mistrust have run deep since the days of the cold war. The west does not want a USSR 2.0 and Russia does not want to bow before the west by losing power and influence. Keeping all these in mind, through the Minsk Agreements or otherwise, better judgment should prevail in a way where accommodations are preferred over confrontations and durable peace becomes the priority over power to avoid Ukraine becoming the Syria of Europe.

References

1. https://www.thehindu.com/news/international/explained-what-is-the-minsk-agreement/article65187598.ece
2. https://www.thehindu.com/opinion/lead/caught-between-russia-and-the-eu/article5757614.ece
3. https://www.thehindu.com/news/international/world/ukraine-european-union-sign-agreement-on-closer-ties/article5814539.ece
4. https://www.reuters.com/world/europe/what-are-minsk-agreements-ukraine-conflict-2022-02-21/
5. https://www.fmprc.gov.cn/eng/wjb_663304/zwjg_665342/zwbd_665378/202202/t20220218_10643212.html
6. https://www.atlanticcouncil.org/blogs/ukrainealert/the-2008-russo-georgian-war-putins-green-light/ 

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This article is written by Satyaki Deb, an LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive overview of common law marriage in the USA and its related concepts from an analytical viewpoint.

It has been published by Rachit Garg.

Introduction

The laws regulating marriages in the USA have undergone a lot of amendments over the last 70-80 years or more. There is no central or federal law governing marriages in the USA. Rather, the 50 states have their own laws governing the domain of marriage. There are generally two types of marriages that are recognised in the USA and which are statutory marriages and common law marriages. In other words, in the United States of America, parties enter into civil marriages either in a ceremonial manner by conforming to the state’s statutory requirements of marriage or they enter into matrimony non-ceremoniously by fulfilling all the requirements of common law marriage. In simple words, common law marriage is basically a legal institution for the cohabitation of couples and is often informally referred to as non-ceremonial marriage. In this form of marriage, parties agree to be husband and wife in the present and behave so publicly in front of family and friends without undergoing any marriage ceremony or obtaining a marriage licence. 

What is a common law marriage

Before delving into the concept of common law marriage, let us first comprehend briefly the term ‘common law’. In simple words, a common law system is a form of law which is mainly based on unwritten and judge-made law. Mainly, the ex-colonies of the UK have this common law system of law and that includes the USA. So, this common law marriage system came to the USA from the common law marriage system prevalent in Europe before the dawn of Christianity when marriage was a private contract between families without the intervention of any church officials or state officials. 

According to Black’s Law Dictionary, common law marriage is a type of marriage or relationship which is not solemnised in a ceremonious manner but must require the following: “positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfilment of necessary relationship of man and wife, and an assumption of marital duties and obligations”. In other words, common law marriage is the type of marriage where partners mutually agree to enter into a permanent and exclusive marital relation and cohabit together as man and wife to the world while fulfilling their marital duties and obligations.

Illustration A: There are two parties X and Y. They decide to be husband and wife from today itself, cohabit together and behave publicly as couples. It can be a valid common-law marriage.

Illustration B: There are two parties X and Y. They decide to be husband and wife in future but start cohabiting together from today itself. It is not a valid common law marriage as future agreement to marry does not constitute common law marriage.

Illustration C: There are two parties X and Y. They decide to be husband and wife from today itself and start cohabitating together from today itself as couples but they decide to keep their marriage a secret from society. It is not a valid common law marriage as there is no such thing as a clandestine common law marriage. Publicly portraying husband and wife is perhaps the most important requirement of a valid common law marriage. 

Illustration D: There are two parties X and Y. X is 21 years old and Y is 17 years old. They decide to be husband and wife from today itself and start cohabiting together as couples. Also, they publicly portray themselves as married couples. This is not a valid common law marriage as the parties are not adults. In other words, the parties must have the capacity to contract.  

Brief history of common law marriages in the USA

According to various legal scholars like Cynthia Grant Bowman, the concept of common law marriages in the USA can be traced back to the informal marriages of Europe before the Reformation. Gradually, the concept of common law marriage was adopted in the US colonies with the advent of English common law but the same varied from colony to colony. Since in some American colonies informal cohabitation existed, they started recognising common law marriages whereas the remaining colonies required compliance with certain legal formalities. Various colonies like New York, Georgia, Pennsylvania, South Carolina, Rhode Islands and New Jersey chose to recognise informal marriages whereas other colonies like Virginia, Vermont, North Carolina, Delaware, Maryland and Connecticut decided to enact laws that required formal ceremonies, licences or registrations, designated officiants for valid marriages.

Now you may wonder as to why some states in the USA accepted the informal system or the common law system of marriages whereas some states rejected the same. The answer to this question can be traced back to a time when years and years ago transportation was extremely underdeveloped, to say the least. The colonies with frontier conditions, sporadic settlements, long distances from marriage registries, dearth of legal officiants help us to explain why some states chose to accept the system of informal marriages or common law marriages.

The obvious question that comes after this is what did the US Courts have to say regarding common law marriages? Most of the states initially recognised common law marriage and in this line, the judgement of Fenton v. Reed (N.Y. 1908) is significant where the Supreme Court of New York recognised the rights of a widow who was seeking pension from an organisation where her alleged husband was a member. The Hon’ble Court inter alia noted – “A marriage made per verba de praesenti amounts to an actual marriage and is as valid as a marriage in facie ecclesiae (in the face of or presence of the church).” Thus, it was held that a marriage can be proven based on the cohabitation of the parties, reputation as husband and wife, present acknowledgement of the parties and other related circumstances.

While the majority of the states decided to accept common law marriages, some minority jurisdictions decided to rely their laws on the lines of Inhabitants of Milford v. Inhabitants of Worcester (1810) where common law marriage failed to get recognised.

To solve this apparent confusion where some states were recognising common law marriages and some states were passing contrary laws, the Supreme Court of the USA in the case of Meister v. Moore (1877) held that the right to marriage is a common law right and the states can take that right away by enacting statutes where common law marriage is expressly stated to be null and void. In other words, even if the states pass an Act requiring formal registration, licences etc. for a valid marriage unless that law has express provisions making common law marriages void, the provisions requiring formal ceremonial marriages will be considered to be merely directory and not mandatory in nature.

Reasons for the decline of common law marriages in the USA

Even though a majority of the states were in favour of common law marriages in the USA initially, when the factors that led to the wide acceptance of common law marriages got mitigated, the decline of common law marriages in the USA started. The factors that led to the decline of common law marriages in the USA are stated as follows:

1. Rapid industrialization and urbanisation solved the problem of transport and aided in access to civil authorities.
2. There was an increase in the wealth of private citizens and to reduce the chances of false claims of inheritance and increase proper and due inheritance to rightful and legitimate heirs, it was pertinent for common law marriage to get shunned.
3. Protection of the institution of marriage became a necessity.
4. There was also the factor of racism, eugenics and class bias.
5. There were concerns about administrative and judicial efficiency.

Requirements of a common law marriage in the USA

It is true that the laws of marriage in the USA have evolved over the years and that individual states have their own laws regarding marriages, but in essence and historically speaking, the requirements of a valid common law marriage can be enumerated as follows:

1. Capacity to enter into a marital contract.
2. Present agreement to be married.
3. Continuous cohabitation for which no specific time is prescribed.
4. Parties must portray themselves as husband and wife to society as married couples.

Each of these requirements is explained as follows

Capacity to enter into a marital contract

Since marriage is a civil contract, it is important that the parties are competent enough to enter into the union of marriage. In other words, the parties need to possess a sound mind and be adults which will qualify them as parties having the capacity to contract. Also, it is pertinent to note that the parties must not be in a formal/informal marital contract with any third party at that time.

Present agreement to marry

It is very crucial for a valid common law marriage for the parties to have a present and not a future agreement to marry. The present agreement to marry is also often referred to as an agreement per verba de praesenti. Also, there must be intent to assume the relationship of husband and wife based on the present agreement to marry. In other words, if the agreement to become husband and wife is entered into for purposes other than to assume such a relationship or pertains to a future marriage, then it does not constitute a valid common law marriage.

Continuous cohabitation

Continuous cohabitation is one of the primary requirements of a valid common law marriage but contrary to the common misconception, no specific time of cohabitation is prescribed that is necessary to constitute a valid common law marriage. But exceptions happen in some states like New Hampshire, where a minimum of three years of cohabitation is required before the death of one party to constitute a valid common law marriage. Also, in some cases, the cohabitation may completely be in the past as in the case of In re Estate of Benjamin 311 N.E. 2d 495 (N.Y.1974) where one woman (widow) was contesting the estate of a decedent who left her and married someone else.

Holding out

It is perhaps the most important of all the criteria as to how the parties are portraying themselves in front of the community. Unless the parties treat each other as husband and wife in front of family, friends and society and have that reputation as married couples, their common law marriage will not be valid in the eyes of the law. In other words, it can be safely inferred and stated that there is no such thing as a  secret or clandestine common law marriage. Even in the event where the parties undergo a contract/agreement of marriage but decide to keep their marriage a secret, it is not a  valid common law marriage. Thus, where one party alleges the existence of a common law marriage, that party must substantiate such claim with witnesses corroborating the parties as couples, produce joint tax returns, hospital and medical records etc. Thus, public declaration or holding out as husband and wife by the parties must be general and substantial in nature and is often referred to as the ‘acid test’ for the determination of the validity of a common law marriage.

Burden of proof and how to prove a common law marriage in the USA

The burden of proof lies on the party asserting to have a valid common law marriage and in order to prove common law marriage in the USA, the standard of proof should be such that the basic requirements of a common law marriage mentioned above are fulfilled. Generally speaking, the following documentation can help parties prove a valid common law marriage:

• Bank statements of joint bank account(s).
• Property papers/deeds of jointly owned real estate, vehicles, etc.
• Insurance policies where one party is mentioned as the beneficiary of the other party.
• If there are any children, birth certificates or school records of such wards where both the parties have been mentioned as father and mother of such children.
• Any employment papers/records where one party is listed as the spouse of the other party.
• Any financial statements showcasing joint financial obligations of the parties like credit card bills, mortgage payments, loan documents etc.
• An affidavit wherein the nature of the relationship of the parties and when and where the parties underwent their common law marriage is mentioned.
• Affidavits from family members, neighbours and friends wherein they mention they viewed the parties as married couples, state their marital residence etc.

Legal analysis of common law marriages in the USA

What is a common law spouse entitled to do

There are loads of common misconceptions regarding the rights of a common law spouse. Before clearing the same, a basic question needs to be answered that is – are you a valid common law spouse? What this question means here is whether the law recognises you as a common law spouse. If you fulfil all the basic requirements of a common law marriage, then law of the land will recognise your common law marriage as a valid one and then you are a valid common law spouse, along with your partner. Otherwise, there is no such thing as a common law spouse and then logically, one gets no spousal rights. 

If you are a valid or a legally recognised common law spouse, then just like a partner of a formally registered ceremonial marriage, you enjoy the same spousal privileges including:

• Claiming a share of the family home,
• Maintenance rights,
• Child support,
• Parental rights,
• Inheritance rights,
• Tax benefits, etc

Also, if you are wondering what happens if you undergo a valid common law marriage in a state that recognises common law marriage and later shift to a state that does not recognise common law marriage, then there is a Full Faith and Credit Clause in the US Constitution which will save a common law spouse. So, if you are a couple who had common law marriage in a state that recognises common law marriage, throughout the USA, your common law marriage will be valid and legally enforceable.

What rights does a common law spouse have when their partner dies

If your common law marriage is a valid one that is a legally recognised one because you fulfil all the basic requirements of a common law marriage then, you enjoy the same rights to automatic inheritance of your partner’s properties after his / her death just like a spouse of a formal ceremonial marriage. But first, you will need to prove in the courts of law that you have a valid common law marriage and one can do that by the following simple steps:

Step 1: Apply for a declaration of valid common law marriage to a court of competent jurisdiction.

Step 2: Submit your documentary proofs that depict that you and your alleged spouse indeed acted and functioned as spouses. For this you may submit joint bank statements, joint tax returns, joint mortgage documents etc.

Step 3: To prove that your common law marriage was not a secret one, affidavits from family and friends need to be submitted which will confirm that you and your alleged spouse are publicly held out as husband and wife.

In this regard, it may be mentioned that a spouse of a formally registered marriage can easily prove his / her inheritance rights compared to a valid common law spouse. So, it is always advisable to register your marriage in front of competent civil authorities.

Now, do you have any rights after your partner dies and your common law marriage is not a valid one because you fail to fulfil the basic requirements of a common law marriage? In that case, you can only get inheritance rights to your partner’s properties if your partner had done proper estate planning with a well-drafted will or trust. Otherwise, as a legally unmarried partner, your partner’s properties will be governed by the local intestacy laws in the absence of a will or trust and in that case, his / her blood relatives will get the properties in most cases.

How to annul or get a divorce in a common law marriage

A common law marriage, as stated before, is often referred to as informal or non-ceremonial marriage. So, it may logically appear that a common law marriage may be informally broken too by mutual agreement. But it should be duly noted that a valid common law marriage cannot be broken or dissolved informally. Just like a formally registered marriage needs to be dissolved or annulled by a decree of a court of competent jurisdiction, similarly, a valid common law marriage needs to be dissolved by a decree of a court of law of competent jurisdiction. Thus, where the parties were fulfilling all the basic requirements of a common law marriage but later on, one party or both parties started posing as singles in public, their common law marriage would not get annulled. In other words, a dissolution decree from a competent court of law is necessary to dissolve both common law marriage and a formally registered ceremonial marriage.

Illustration I: There are two common law spouses A and B who have fulfilled all the basic requirements of a common law marriage. They were happy couples but later on due to some issues, A decides to leave B and marry C in a formal and ceremonial marriage. A and B first get a decree of divorce from a competent court of law and only then can A marry C in any manner.

Illustration II: There are two common law spouses A and B who have fulfilled all the basic requirements of a common law marriage. They were happy couples staying together but one day both A and B mutually decide that they will part ways because of boredom. A and B believe that since their common law marriage is an informal one which started with their mutual agreement to be husband and wife, this informal form of marriage can be broken by mutual agreement too. But they are wrong. A common law marriage can only be dissolved by a decree of divorce by a competent court.

Illustration III: There are two parties A and B who stay as common law spouses believing that they have fulfilled all the basic requirements of common law marriage. But in reality, they have not fulfilled all the basic requirements of a common law marriage due to ignorance of the law. One day, A decides to leave B and marry C without giving a formal divorce to B. A can do so because the common law marriage of A and B was not a valid one, rendering A single. 

What happens after the annulment of a common law marriage

If a common law marriage gets annulled by a decree of the court, then just like any other annulment of a formally registered ceremonial marriage, the spouses will have to bear the rights and liabilities in a similar manner. In other words, after the annulment of a common law marriage and after the annulment of a formally registered ceremonial marriage, there are no differences in the quantum of rights and liabilities entrusted on the parties. Alimony rights and duties, parental rights and duties etc. are all present with a common law spouse at par with a formally married spouse after divorce.  

Rights of common law spouse in states that do not recognise common law marriages

It may so happen that the parties have undergone a valid common law marriage in a state that recognises common law marriage but later shifted to a state that does not recognise common law marriage. In that case, the Full Faith and Credit Clause in the US Constitution will come into action. According to this Clause, one state should recognise the “public Acts, records and judicial proceedings” of another state. So, if you are a couple who had a common law marriage in a state that recognises this practice and satiates all the basic requirements of a common law marriage throughout the USA, your common law marriage will be valid and legally enforceable irrespective of the state’s own laws pertaining to common law marriage. In other words, a common law spouse who fulfils the basic requirements of a common law marriage, enjoys his / her rights even in states that do not recognise common law marriage.

Civil union vis-a-vis rights of same-sex couples with respect to common law marriages in the USA

Before same-sex marriage was recognised in the US, it was imperative to give same-sex couples the same legal protection as given to other couples. So, the concept of civil unions was started in some states for the same-sex couples for that purpose. In other words, the civil union was a marriage-like legal status given to same-sex couples in some states. Later, the Hon’ble US Supreme Court in the landmark judgement of Obergefell v. Hodges (2015) legalized same-sex marriage throughout the territory of the United States. The marital rights of same sex couples got legalized based on the ‘due process’ clause and ‘equal protection’ clause of the Fourteenth Amendment of the US Constitution. In other words, same-sex couples were placed on an equal legal footing with different-sex couples. Now, coming to the concept of common law marriages, it can be inferred as a corollary that just like different-sex couples have the right to a common law marriage in the states recognising them, same-sex couples to have the right to undergo common law marriages in the states that recognise it. In other words, when it comes to common law marriages, same-sex couples and different-sex couples are identical in the eyes of the US laws.

Advantages of a common law marriage in the USA

The advantages of common law marriage in the USA can be stated as follows:

An initially less financial and legal entanglement

A common law marriage gets built on trust and cohabitation in the initial days without worries of financial and legal obligations in contrast with formally married couples. For formally married couples, from day zero of marriage, there can be financial, and legal burdens and entanglements. On the contrary, a common-law couple gets more scope of freedom to build their relationships without worrying about financial and legal matters from the first day of cohabitation. But later, of course, a valid common-law spouse stands on an equal footing with a formally married spouse with respect to financial and legal obligations.

Illustration: There are two parties X and Y who have undergone a formal ceremonial marriage and there are further two parties A and B who have decided to become husband and wife in the informal and non-ceremonial form that is via common law marriage. Now, what happened was Y, the newlywed wife of X, decides to divorce X within a week of their marriage. X will be under the financial obligation to give alimony to Y, irrespective of the period of married life spent by X and Y. On the contrary, if after one month, A decides to leave B, their separation can happen more smoothly because the joint documents which can prove their common law marriage etc. take a longer time to be ready. So, in the case of formal marriages from day zero, there is the scope for legal and financial hassles, unlike common law marriages which gives the parties the option to leave easily in the initial days. 

Fewer requirements to start common law marriage with 

A formal marriage must strictly conform to the statutes governing formal marriages from the very beginning. On the contrary, a common law marriage has very few requirements, to begin with. It can start in a state recognizing common law marriage by merely moving in together to begin without any ceremonies or registration or licences. Later on, with time, the parties can develop a present agreement to act as husband and wife and publicly present themselves so. In other words, the process is very simple, to begin with. Since marriages are very important life decisions, if at least the beginning steps can be kept simple, it becomes appealing to a lot of people.

Easier to leave 

Since, a common law marriage begins with mere cohabitation as couples, till the common law marriage becomes legally valid with the fulfilment of the basic requirements of a common law marriage, a dissolution decree is not necessary. In other words, if we look at the basic requirements of a common law marriage we can see that it consists of publicly holding out as married couples as one of the prime requirements. Now, since this requirement takes time to establish in the eyes of the public, till it happens the parties find it easier to leave each other with no public pressure or stigma. This is because a formal marriage binds the parties from day zero in the eyes of the law. On the contrary, a common law marriage first needs to fulfil all the basic requirements in order to become legally enforceable and since that takes time, before that the parties are simply free to leave and explore. Thus, initially, till the time a common law marriage becomes valid in the eyes of the law, the parties enjoy more freedom. But it is pertinent to note in this regard, that after a common law marriage becomes valid and legally enforceable in the eyes of the law, a dissolution decree from a competent court is necessary to dissolve it just like it is necessary for a formal ceremonial marriage.

Granting legal statuses to parties, thereby reducing vices 

Common law marriages do not require any public ceremonies, public vows for the couples etc. On the contrary, common law marriages focus on the relationship of the parties rather than on ceremonies and formalities. The core focus stays on the relationship of the parties and that gets legal recognition too at par with formal marriages. In other words, parties get to focus more on themselves rather than on ceremonies and formalities and this in turn reduces vices like illegitimacy, promiscuity etc. because the parties know that what matters most is their relationship with each other and they are not losing out on any legal benefits of a formal marriage at the same time.

Protection of the rights of women, children, the poor and minorities

What a common law marriage does in essence is that it puts an informal and non-ceremonial marriage on an equal footing with a formal, ceremonial, registered and licensed marriage. This acts as a boon for it protects the rights of women, children, the poor and minorities. Abrogation of common law marriage would affect these marginalised and vulnerable people the most.

Disadvantages of a common law marriage in the USA

The disadvantages of common law marriage in the USA can be stated as follows:

Fraudulent claims

Since common law marriage is an informal type of marriage with no registration before civil authorities, there lies the menace of fraudulent claims. Especially rich parties or celebrities face this issue where their heirs face loads of hassles just because a fraudster comes and claims to be the common law spouse.

High risk of relationship ending

Since common law marriage is an informal and flexible form of marriage, parties tend to become less adjustable to each other very easily and thus there is a high risk of dissolution when it comes to common law marriages compared to formal marriages. 

Limited rights

In the initial days of common law marriage, parties have very limited rights against each other. The flexibility of common law marriage in the initial days comes at the dear cost of limited rights. What we mean here is that if we look at the basic requirements of a common law marriage and the joint documents necessary to prove common law marriage, it will be clear that it takes time to fulfil those requirements and to get the joint documents ready. Until then, the parties will find it very difficult to prove their common law marriage. So, in the initial days, until you have what is necessary to prove your common law marriage, you get limited rights compared to a formally married couple. Later on, when a common law marriage becomes a valid one in the eyes of the law with the fulfilment of all the basic requirements of a common law marriage, only then do the partners enjoy marital rights at par with formally wedded couples.

Difficult to verify

Since common law marriages are informal marriages and are not registered before competent civil authorities, it becomes difficult to verify the same for the purposes of property rights, and tax relief rights of common law spouses.

Women end up doing more household work

It has been observed that in informal marriages or common law marriages, women end up doing more household work at the cost of their careers.

State laws in the USA with respect to common law marriages

Are common law marriages recognised in all the 50 states of the USA

Common law marriage used to be recognised by the majority of the US states quite a few decades ago. But gradually there was a decline in the common law marriages in the USA owing to rapid industrialization, urbanisation, improvement in transport and communication etc. Presently, only a handful of the states in the USA recognise common law marriage. The remaining states require proper registration and compliance with state statutes governing marriages. So, all 50 states of the USA do not recognise common law marriage presently but a valid common law marriage done in a state that recognises common law marriage is valid and enforceable throughout the territory of the USA by virtue of the Full Faith and Credit Clause in the US Constitution. The list of the states that recognize common law marriages and the list of the states that do not recognize common law marriage is given below.

States that recognise common law marriage in the USA

The states in the USA that recognise common law marriage are listed below but it may be noted that the individual nuances vary state-wise and they have been discussed later in the article in a tabulated form. For example, the state of New Hampshire only recognises common law marriage for inheritance purposes. The states that recognise common law marriage are as follows:

1. Colorado
2. District of Columbia
3. Iowa
4. Kansas
5. Montana
6. New Hampshire (for inheritance purposes only)
7. Oklahoma (it is best to discuss with a family law attorney as this state has contradicting laws where the Courts have recognised common law marriages despite Statutes requiring couples to have a marriage licences.)
8. Rhode Island
9. South Carolina
10. Texas
11. Utah

States that do not recognise common law marriage anymore in the USA

The following is the list of the states that allowed common law marriage before it was abolished and still recognise common law marriage as valid provided it started before the date it was abolished. In other words, any relationship that started after the abolishing date in these states, such a common law relationship will not be recognised. Most of these States do not recognise common law marriage anymore mainly because common law marriages are harder to prove and lots of false claims of inheritance happened. Moreover, it was important to protect the institution of formal marriage. The list of states in the US that do not recognise common law marriage is as follows:

1. Alabama (if the relationship started before 01/01/2017, only then it is valid)
2. Pennsylvania (if the relationship started before 01/01/2005, only then it is valid)
3. Georgia (if the relationship started before 01/01/1997, only then it is valid)
4. Idaho  (if the relationship started before 01/01/1996, only then it is valid)
5. Ohio (if the relationship started before 10/10/1991, only then it is valid)
6. Florida (if the relationship started before 01/01/1968, only then it is valid)
7. Indiana (if the relationship started before 01/01/1958, only then it is valid)

State-wise laws with respect to common law marriage in the USA

The state-wise laws with respect to common law marriages in the USA are mentioned below. In the below table, only those states been mentioned that currently recognise common law marriage or do so if done before a particular date. The below table also contains the legal backings behind the respective state nuances related to common law marriage. Any state among the 50 states not mentioned below indicates that common law marriage is expressly prohibited in that state. The list is as below :

States	Statutory marriage authority	Common law marriage	Common law marriage authority
Colorado	COLO. REV. STAT. ANN. tit. 14, art. 2, pt. 1 (West 2005) (C.R.S. § 14-2-101 through § 14-2-113 under Uniform Marriage Act)	Common law marriage has been recognised in the state of Colorado for a very long time (since 1877).	Case laws like People v. Lucero, 747 P.2d660 (Colo. 1987) where it was stated –“In this state, a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a ‘common law marriage,’ may be valid and binding.”
District of Columbia	D.C. CODE ANN. tit. 46,subt. I, ch. 4 (2005)	Yes, common law marriage is recognised by virtue of case laws.	U.S. Fidelity and Guaranty Co. v.Britton, 269 F.2d 249, 251(C.A.D.C. 1959) where it was stated – “So, whatever the rule may be elsewhere, in the District of Columbia it is that when a man and a woman who are legally capable of entering into the marriage relation mutually agree, in words of the present tense, to be husband and wife, and consummate their agreement by cohabiting as husband and wife, a common law marriage results.”
Iowa	IOWA CODE ch. 595 (2005)	Yes, Iowa recognizes common law marriage but the state statute penalises improper solemnization. Mainly, common law marriage is recognised for the purposes of support of dependents and it is not expressly prohibited for other purposes.	Case law like In re Estate of Fisher, 176N.W.2d 801, 805 (Iowa 1970)wherein the three requirements of a valid common law marriage in Iowa was laid down, viz:1. Intent and present agreement to marry by both parties.2. Continuous cohabitation of the parties.3. Public declaration or holding out to the public in the form of husband and wife.
Kansas	KAN. STAT. ANN. ch. 23, art. I (2004)	Yes, common law marriage is recognised if the basic requirements of common law marriage are fulfilled and the state statute only allows the same for parties of minimum 18 years age.	Case law like Sullivan v. Sullivan, 413 P.2d 988, 992(Kan. 1966)
Montana	MONT. REV. CODE ANN. tit. 40, ch. 1 (2003)	Yes, common law marriage is recognised	In re Estate ofHunsaker, 968 P.2d 281, 285(Mont. 1998)
New Hampshire	N.H. REV. STAT. ANN. tit.XLIII, ch. 457 (2004)	Yes, there is statutory recognition, but here common law marriage is recognised only for the purpose of inheritance. In other words, one of the parties must be deceased before a court of law validates the same. Also, a minimum of three years of cohabitation between the parties is required.	N.H. REV. STAT. ANN. §457.39 (2004)
Oklahoma	OKLA. STAT. ANN. tit. 43(West 2005)	The situation here may appear confusing. But to make it clear it can be said that common law marriage is recognised by case law and the state statute requiring marriage licence can be said to be directory and not mandatory based on the landmark judgement of Meister v. Moore (1877). This is inferred because the state has no express laws prohibiting common law marriage.	Reaves v. Reaves, 82 P. 490,492, 494, 496 (Okla. 1905) where the following was inter alia stated – “A common law relationship iscontractual, just as is a ceremonial marriage. It must be founded upon a mutual agreement, to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable of entering into such a contract; consummated bytheir cohabitation as man and wife as well as their open assumption of other marital duties.”
Rhode Island	R.I. GEN. LAWS tit. 15, ch. 1-3 (2004)	Yes, common law marriage is recognised by case law. The state statute is interpreted to be directory and not mandatory.	Case laws like –Holgate v. United Electric Rys.Co., 133 A. 243, 244-45 (R.I.1926),Sardonis v. Sardonis, 261 A.2d22, 24 (R. I. 1970)
South Carolina	S.C. CODE ANN. tit. 20, ch.1, art. 3 (2004)	Yes, common law marriage is recognised by case law. The state statute is interpreted to be directory and not mandatory.	Case law like – state v. Ward, 28 S.E.2d 785, 786-87 (S.C. 1944) wherein it was inter alia stated – “It is essential to a common law marriage that there shall be a mutual agreement between the parties to assume toward each other the relationship of husband and wife. Cohabitation without such an agreement does not constitute marriage.”
Texas	TEX. FAM. CODE ANN. tit. 1, subt. A (Vernon 2005)Sub-links for better understanding are as follows: Tex. Family Law §1.101Tex. Family Law §2.401-2.402	Yes, common law marriage is recognised in the state statute as informal marriage.	Landmark case in this regard is –McChesney v. Johnson, 79S.W.2d 658, 659 (Tex. Civ. App. 1934)TEX. FAM. CODE ANN. tit. 1,subt. A, § 2.401-2.405 (Vernon2005)
Utah	UTAH CODE ANN. tit. 30, ch. 1 (West 2005)	Yes, common law marriage is recognised by the Statute from 27th April, 1987 onwards.	UTAH CODE ANN. § 30-1-4.5(West 2005)
Alabama	AL Code § 30-1-20 (2016)	No, from 01/01/2017 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	For cases where relationship started before 1st January, 2017 – Campbell v. Gullatt, 43 Ala. 57 (1869); Piel v. Brown, 361 So.2d 90 (Ala.1978)Boswell v. Boswell, 497 So. 2d 479, 480 (Ala. 1986)
Pennsylvania	Pa. Cons. Stat. Ann. tit. 23, § 1103	No, from 01/01/2005 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	For cases where relationship started before 1st January, 2005 – Baker v. Mitchell, 17 A.2d 738, 741 (Pa. Super. 1941)
Georgia	GA. CODE ANN. tit. 19, ch. 3 (West 2005)	No, from 01/01/1997 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	Ga. Stat. § 19-3-1.1
Idaho	IDAHO CODE ANN. tit. 32, ch. 2-5 (2005)	No, from 01/01/1996 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	IDAHO CODE § 32-201 (2005)
Ohio	OHIO REV. CODE ANN. tit.XXXI, ch 3101 (West 2005)	No, from 10/10/1991 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	OHIO REV. CODE ANN. § 3105.12 (West 2005)
Florida	FLA. STAT. ANN. ch. 741 (West 2005)	No, from 01/01/1968 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	FLA. STAT. ANN. § 741.211 (West 2005)
Indiana	IND. CODE ANN. tit. 31, art. 11 (2004)	No, from 01/01/1958 onwards, any relationship entered after this date will not be recognised. Any relationship entered before this date will be valid upon satisfaction of other basic requirements of a common law marriage.	IND. CODE 31-11-8-5 (2004)Important case law:In re Sutherland’s Estate, 204 N.E.2d 520 (Ind. 1965)

Can a common law marriage help you get a green card in the US

A green card grants a foreign-born person the right to permanent residence in US territories and inter alia it can be obtained on the basis of a valid marriage entered into with a US citizen or a permanent resident of US. But the concept of marriage-based green card (that is a green card that can be obtained because your spouse happens to be a US citizen or green card holder) is not that simple. It is better to analyse the situation step by step.

Firstly, the marriage be it formal or a common law marriage needs to be a valid one. That is the basic requirement of the marriage irrespective of its type needs to be fulfilled and most importantly, the marriage should be legally recognised in the place of its occurrence. In other words, if a US citizen and a foreign citizen undergo a common law marriage in a state, say Massachusetts, but since the same is not recognised in that particular state, the common law marriage will not be a valid one and thus, based on that common law marriage, a green card cannot be obtained. On the contrary, if a US citizen and foreign-born person undergo common law marriage in a state like Texas and fulfil all the basic requirements of a common law marriage, then since at the place of occurrence common law marriage is recognised, and the common law marriage is a valid one, based on this common law marriage, a green card application can be made and obtained.

Secondly, the thing that must be noted in this regard is that irrespective of the type of marriage, as long as the marriage is a valid one at its place of occurrence as mentioned above, the US immigration authorities will seek proof of shared life. Formally married couples can show photos of their ceremonial marriage whereas common law married couples can submit their joint bank statements, joint credit card statements, joint mortgage statements etc.

Thirdly, just showing the marriage to be a valid one is not sufficient in itself to get a green card for the foreign spouse. It is paramount that the marriage, irrespective of its type, be bonafide in nature. In other words, just undergoing a valid common law marriage, in order to get a green card will prove that the foreign spouse is doing sham or fraud and will never get a green card that way.

Lastly, if all the above conditions are met, the foreign spouse gets the status of ‘immediate relative’ or ‘preference relative’ and gets rapid access to permanent residency or a green card. So, there is no discrimination between a formally wedded couple and a common law married couple when it comes to getting green cards but just undergoing common law marriage in order to get a green card will never get one a green card.

Conclusion 

Common law marriage or the informal and non-ceremonial form of marriage was a true necessity a few centuries ago. But today in this modern and well-connected world, an informal system of marriage like common law marriage poses more problems than blessings. It has been rendered vestigial for most purposes in the present world. Only a minority of US states still recognise common law marriage and it is high time that the remaining states to make laws expressly prohibiting the same to better safeguard the institution of marriage and protect the rights of the couples in a more efficient and hassle-free manner. Last but not the least, it can be stated that common law marriage is like the valiant and old aircraft carrier that has majestically served its time but has exhausted its practical utility in today’s modern world.

Frequently asked questions (FAQs) on common law marriages in the USA

What is the difference between a marriage and a common law marriage?

Generally speaking, marriage is of two types, viz- formal marriage and informal marriage. The formal marriage is a ceremonial one and it gets duly registered or licensed. On the contrary, common law marriage is the informal and non-ceremonial type of marriage, without licence and registration. So, by the term ‘marriage’, we mainly refer to the formal and ceremonial type of marriage and it differs from common law marriage in the mode of conduction mainly as explained above.

What is the minimum time a couple must cohabitate for a common law marriage?

This is a common misconception that a minimum time of seven years or more is required for a valid common law marriage. In reality, no minimum time of cohabitation is necessary. Only the requirements of a valid common law marriage need to be fulfilled and no minimum time of cohabitation is prescribed for the same.

Do I get tax breaks in a common law marriage?

Yes, if your common law marriage is a valid one, that is if all the requirements of a common law marriage are met, then just like a formally married couple, you too can get tax breaks in a common law marriage.

Does an LGBTQIA+ couple have a right to common law marriage in the USA?

Yes, after the landmark judgement of the Hon’ble US Supreme Court in the case of Obergefell v. Hodges (2015), LGBTQIA+ people too enjoy the same marital rights throughout the territory of the USA at par with different sex couples.

What happens to kids in a common law marriage after divorce?

After a common law marriage gets dissolved by a divorce decree from a competent court of law, the children born out of such common law marriages, stand on an equal footing as any other children where formally married parents had undergone divorce. Similarly, the common law married and divorced parents too enjoy the same parental rights and obligations as any other formally married but divorced parents. 

Can I get alimony or child support from my ex-partner after the divorce in my common law marriage?

Yes, you can get full benefits after divorce including alimony, child support etc from your ex-partner from a common law marriage just like a formal, ceremonial marriage. You just have to prove your common law marriage to be valid first.

What happens to my retirement account after my divorce from my common law spouse?

Firstly, see if your common law marriage is a valid one by checking if it fulfils all the basic requirements of a common law marriage. Secondly, see if you can prove your common law marriage or not in a competent court of law. If you can do both these things, then you stand on the same footing as any other divorcee irrespective of if it is a formal marriage or common law marriage. Then based on the terms of the divorce, your ex-partner or ex-common law spouse may get a share of your retirement account. Now, if your alleged common law spouse fails to prove your common law marriage in court, then your common law marriage is not a valid marriage and your ex partner will have no right on your retirement account.

What are the top three things to know about common law marriages in the USA?

The top three things one needs to keep in mind regarding common law marriages in the USA are as follows:

1. You may be eligible for most state and federal benefits that come along with traditional or normal marriages but it is always best to consult an attorney in your state before taking final decisions.
2. Currently, only a minority of states recognize a valid common law marriage.
3. It is always best to annul a common law marriage with a divorce proceeding.

Are common law marriages a good alternative to formal marriages?

It may prima facie appear that common law marriage is a good alternative to a formal, ceremonial marriage with proper registration and licences. But unless it is too much of an inconvenience, it is always advised that marriages be done formally with proper licence and registration. This will save a lot of time, expenses and hassles in the future at the time of inheritances, divorces, maintenance, child support etc.

References

1. https://www.ncsl.org/research/human-services/common-law-marriage.aspx#:~:text=A%20common%20law%20marriage%20is,statutes%20addressing%20common%20law%20marriage.
2. https://www.unmarried.org/common-law-marriage-fact-sheet/ 
3. https://www.ncsl.org/research/human-services/child-support-and-family-law.aspx 
4. https://www.law.cornell.edu/wex/marriage

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This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. This article discusses Sharia law in the United States, including an outline of the law and its history. The article also discusses all aspects of Sharia Law in the United States as well as the anti-Sharia movement.

It has been published by Rachit Garg.

Introduction 

The term Sharia derives from the Quran, the Islamic sacred book, as well as the Sunnah and Hadith, Prophet Muhammad’s deeds as well as his preachings. This is taken from the legal system of Islam. “Where an answer cannot be obtained immediately from these, religious experts may provide decisions as guidance on a specific topic or question,” according to the Sharia. This literally means ‘clean, well-trodden way to water’ in Arabic. This serves as a rule of conduct for all Muslims, including prayers, fasting, and charitable works for the needy. 

Sharia law is a religious law that establishes regulating principles for spiritual, mental and physical behaviour that Muslims must obey. This is considered God’s command for Muslims since it is important in Islam’s legal system. This law primarily assists Muslims in understanding how they should spend their entire lives in accordance with God’s commands. Sharia may have an effect on every element of a Muslim’s everyday life. Various states in the United States of America have prohibited Sharia law or prevent state courts from considering foreign international or religious law. 

Sharia is a methodology through which Muslims look for divine intent in their sacred books, not simply a set of laws to follow. It includes everything from how a faithful Muslim should eat, to how animals and the environment should be treated, to business practices and marriage customs. It is the Islamic code of morality system that governs every element of a Muslim’s life. Sharia law is not in effect or no longer in force in the United States since it has not been legally enacted as a body of law.

Let’s take a wider look at Sharia law.

What is Sharia Law

Sharia is derived from an Arabic word that means ‘path to the water,’ representing the concept that Sharia is divine guidance drawn primarily from the Quran and Sunnah, which their Prophet Muhammad’s teachings and guidance for the goal of helping humanity in bringing close to God and living in kindness and justice with his creation. Muslims use the term Sharia to refer to the values, code of behaviour, and religious precepts or holy rules that help them find guidance in different parts of life. While Sharia is frequently translated as ‘Islamic law,’ a more precise phrase for ‘Islamic law’ in Arabic is ‘fiqh’, which refers to the nature of humanity to interpret and implement Sharia. Many people believed that Sharia was a substitute for the law of the country, and this is where the trouble begins with Sharia law. Sharia law must be limited to a specific way of life. Sharia law, in general, addresses both personal and community elements of life. Any faithful Muslim would regard himself or herself to be a Sharia follower.

Sources of Sharia Law

The Sharia law is derived from the following basic sources:

Quran

The Quran is Islam’s holy book that contains Allah’s messages, which are global and everlasting in nature, as delivered by the Prophet. The main source of Sharia, the Islamic book of the law, is the Quran. It is made up of the laws which govern the Muslim world and serves as the foundation for relationships between Muslims and non-Muslims, as well as between humans and other members of creation. Sharia law is based on the Quran, and it is essential that all of its specific provisions are strictly followed. The Sunnah and Hadith, which include the Prophet’s words and deeds, are the sources that support the Quran.

Hadith

The Hadith or story of the Prophet’s Sunnah constitutes the Muslim community’s religious standards which is the saying of Prophet Mohammad. Hadith clarifies and eliminates the ambiguity in the Quran. Muslims can only understand how to fast, pray, and perform pilgrimage according to Quranic instructions with the aid of Hadith. It is regarded and recognised as the principal source of strict laws and moral standards following the Quran. It is a record of the prophet Mohammed’s customs and habits. Without the aid of Hadith, the Quran has no significance. Muhammad Ibn Ismail al-Bukhr was the source author of Hadith.

Ijma

The Ijma includes the legal opinions of Islam’s educated scholars. Ijma, also known as the universal and permanent agreement of the Muslim community at large or a specific Muslim scholar, is an Arabic term used in Islamic law. In Arabic, the word Ijma means ‘consensus’, and it is occasionally supported by a Hadith the sayings and deeds of Muhammad from his traditions. Therefore, it belongs to traditional authority. 

There are three different types of Ijma:

• Ijma of companions: The unanimous opinion of the Prophet’s companions was regarded as the most trustworthy, which means it cannot be overturned or amended.
• Ijma of jurists: The unanimous opinion of the jurists, who were not companions.
• Ijma of the people or masses: The majority opinion of Muslims was considered as the law.

Qiyas

The Qiyas is the method of reviewing complex doctrine problems to situations decided by the authority of the Holy Book and Sunnah. It is the Sharia part of Islamic law known as qiyas that is subject to change in accordance with the needs and demands of the times. This feature of Islamic law gives it a wide range of possibilities for development and improvement. The principle of analogy, which is analogical inference or deduction, is used in the interpretation of aspects of Islamic law that are not expressly covered in the Quran or the Sunna. These interpretations involve comparing and contrasting the teachings of the hadith with those of the Quran.

Sunnah

The Sunnah is the deeds of Prophet Mohammad. The body of the Islamic community’s ancient social and legal customs and practices is known as the Sunnah. Sunnah is another essential source of Sharia, or Islamic law, along with other sources like the Quran and Hadith. The term Sunnah refers to precedents established by tribal ancestors that were followed by everyone in the society and recognised as normal. It also refers to the path of the Prophet Muhammad, may Allah grant peace and blessings to all. Islamic law is derived from the Quran and Sunnah. Additionally, this provides more guidelines and rules.

Schools of Sharia Law

Sharia laws are divided into five schools of thought:

Hanbali [Founder: Ahmad Ibn Hanbal]

One of Islam’s four Sunni schools of religious law, the Hanbali School is best recognised for its part in the standardisation of early theological doctrine. Ahmad Ibn Hanbal was its founder. The authority of the Hadith and the precedents established by the earliest Muslim generations is emphasised by this school.

Maliki [Founder: Malik Ibn Anas]

The Maliki school was founded by Malik Ibn Anas and is one of the four Sunni law schools. In order to understand the implications in view of the Quran and Hadith law, this school concentrated on local community practices among Muslims. In order to guarantee favourable legal outcomes, this school also encouraged the use of analogical reasoning and exercised juristic discretion.

Shafi’i [Founder: Muhammad Ibn Idris Ash-Shafi’i]

Muhammad Ibn Idris Ash-Shafi’i was the person who founded the Shafi’i school. Additionally, this is one of the four Sunni schools of law. This is an affirmation of the legitimacy of both divine law-giving and legal speculation on the part of humans. The consensus of scholars or the Ijma community was acknowledged but not emphasised.

Hanafi [Founder: Abu Hanifa an-nu’man]

One of the four main schools of Sunni Islamic legal theory and a source of positive law is the Hanafi School. This has to do with an established school of Sunni jurisprudence, particularly in southern and central Asia. Abu Hanifa an-nu’man was the person who founded the Hanafi School.

The four mentioned above are Sunni Muslims. The final one is Shia Islam, which is a version of Sharia law known as Ja’fari.

Five goals of Sharia Law

The Sharia’s five major goals are:

• Protection of sound religious practice life: Sharia law governs Muslim’s personal religious practices globally, but it should have an impact on modern legal systems.
• Life: Muslims follow the path of divine guidance under the Sharia law in order to live moral lives and get closer to God. It establishes principles for spiritual, mental and physical behaviour that Muslims must follow.
• Sanity: In Sharia law, a sane person is an individual who has enough mental ability to distinguish between good and evil, profit and loss. A person is released from their religious obligations when their capacity for thought and discernment is impaired. This is also a goal for Sharia law to attain.
• Family: According to Sharia law, family life is a vital part of the human community, providing a safe, healthy, and caring environment for parents and their developing children.
• Personal and communal wealth: Sharia law seeks to achieve this goal in areas such as marriage, divorce, inheritance, and family relations under personal laws. Sharia law also aims to satisfy the goal that all property belongs to God and is only temporarily enjoyed by humans. Property inheritance is essentially communal wealth, and the law states that wealth belongs to no one in the source of the Quran. People have the right to own and protect their property.

According to all Islamic schools of law, one of the five basic maxims of Sharia is the acknowledgement of sound local customs across the world.

What are the laws under Sharia

The norms of religious law are covered under Sharia law. These norms form the framework for Muslim citizens’ daily conduct. The Sharia laws are the religious laws of Islam, which are believed to represent God’s instructions to Muslims. When they are put into effect, they form a system of obligations that all Muslims are supposed to perform as a result of their religious conviction. The following are the various laws that cover Sharia law:

• Penal law:

The criminal receives the same treatment as the victim for all crimes against another person under Sharia law, including murder and assault, which are punished by retribution. This is also covered under penal law.

• Family law:

Sharia law, which forms the foundation of customary Islamic law governing family interactions, is also covered under family law. An adult woman may enter into her own marriage contract under Hanafi and Shi’i law, but if the lady marries someone who is lower socially than her, the guardian may have the marriage annulled.

• Succession law:

An individual’s ability to make a legacy is essentially constrained to one-third of the value of their inheritance when it comes to Sharia law under the law of succession.

Procedure and evidence

Law was governed by a single qadi who presided over a court and served as both the fact-finder and the law’s judge. Still, he occasionally sought the counsel of a jurisconsult, a qualified lawyer. The qadi’s first responsibility was to determine who had the burden of proof. In both criminal and civil proceedings, the level of proof needed, whether on an initial, intermediate, or final issue, was strict and essentially the same. Naturally, within the course of a single lawsuit, the burden of evidence may alternate between the parties. The plaintiff or prosecution was needed to provide two witnesses to testify verbally to their direct knowledge of the truth of his claim in the absence of a confession or an admission by the defendant. Moreover, two mature Muslims with a reputation for morality and character were often required to provide oral evidence. However, the testimony of women was accepted, and in the majority of property claims, the plaintiff could meet the burden of evidence by calling only one witness and swearing solemnly to the validity of his claim. Any witness evidence might be used to assist Qadi in making the right choice.

Sharia law in the USA 

The U.S. Constitution is the foundation of American democracy. Religious freedom, privacy, and private property are all protected under the Constitution. People can pursue their conscience in terms of culture, conduct, and lifestyle as long as they respect others’ rights and their activities are in accordance with the basic good, according to the Constitution. Muslims must follow Sharia in the same manner that members of other religions adhere to their holy laws and traditions in the United States. 

The religious provisions of the First Amendment to the United States Constitution allow for total freedom of belief and religious practice as long as followers respect the rights of other religions. The American way, as embodied in the first amendment’s religion clauses, promotes religious freedom and religious practice. It permits religious and secular organisations to practice whichever way they like as long as it is free and they respect others’ rights. There have always been various religious organisations in America that follow their own holy rules and lifestyles, such as Catholics, Jews, Baptists, Amish, Buddhists, Quakers, Religious communes, and so on.

In a similar way to Catholics who follow the teachings of the church or Jews who follow Halakhah, American Muslims follow Sharia on a free, separate basis. Daily prayers, fasting throughout the month of Ramadan, marriage contracts, and laws for charity and investing are all important aspects of Sharia. Muslims must abide by these customs without infringing on the rights of others. Because Muslims make up 1 to 2% of the American population, there is a risk that Sharia law will be used instead of US law in American courts. However, there is no proof that this is happening or even being considered. A group of leading security policy researchers produced elaborate research in 2010 concerned with the greatest authoritarian threat of the time, which is the legal political-military ideology known under Islam as Shariah. Sharia requires Muslims to follow the laws of the land in which they reside. 

How does Sharia Law apply in America

The applicability of Sharia law in the USA has been made from a case where a Moroccan man and his 17-year-old wife immigrated to America. The wife obtained a restraining order against her husband, reporting that he was raping her. The husband did not deny that their sexual interactions were consenting, but he stated that under his religion, the woman was expected to submit and do everything he demanded from her. The New Jersey judge determined that, based on his knowledge of Islam, he had no intention to commit a crime and was thus innocent. The restraining order was refused. The US Court of Appeals noted that the Judge in the New Jersey case committed a legal error, which was overturned by a higher court that granted a restraining order. 

His explanation was really helpful on this controversial and sensitive subject. The American judicial system has the following lists of permitted and prohibited conduct:

Application of inheritance based on Sharia law:

The application of inheritance based on religious motivation is permitted. However, asking the court to split inheritance based on Sharia law is not allowed. Contracts and property dispositions are free under US law. One person shall split one’s property in a will according to preference or request that it be divided according to Sharia law by a religious scholar. However, the court does not accept it has the authority to interpret religious laws and would decline a request to do so.

Application of foreign laws:

To determine a marriage or injuries caused overseas, it is permissible to apply foreign law. However, it is not permissible in other situations when doing so would violate US law or would subject a witness to unfair trial procedures. If two foreigners were legally wedded in accordance with the law of the nation from which they immigrated, US law would recognise that marriage. The determination of marriage in a domestic dispute by US courts must take into account international countries where marriage is governed by Shariah. However, polygamy’s acceptability abroad has no legal standing in US courts. Tort laws are governed by the country in which the harm occurred if an American gets hurt abroad and sues a firm that has a place in the US.

The religious exemptions from employment:

Religious exemptions from employment regulations are permissible, but only if they don’t put an undue burden on the business or go against the government’s interests. According to case-by-case analysis, US law enables reasonable adjustments for religious beliefs. Accordingly, depending on the nature of the employment is in issue, wearing a hijab at work or taking time out of the workday to pray may or may not be permitted. It is crucial to note that a famous decision that permits Muslim taxi drivers to refuse a customer carrying alcohol was based on American precedent rather than on an understanding of what is permissible under Islamic Sharia law.

Granting accommodation:

It is permissible to provide accommodation to students or clients that incur only modest costs for the institution. It is not permitted to assess these petitions based on the religious group making the request. As long as doing so does not harm the public interest as a whole, US law permits public and commercial entities to better serve their residents and customers by appealing to their religious beliefs. For example, banks are providing Sharia-compliant loans and high-density Muslim institutions give all kids a full day off on holidays rather than just excluding them. Examples of this nature are applicable to all religious petitioners equally, and they should not be evaluated according to religious benefits.

To legislate Islamic morality:

In highly populated Muslim communities, attempts to legislate Islamic morals are permitted unless they violate the equal protection clause or the free speech code. Citizens may lobby the government to pass morally consistent policies under US law. Therefore, Muslims have the same freedom as everyone else to adopt municipal laws that, for example, forbid the consumption of alcohol.

Prevention of Sharia Law:

There are ten states that forbid the application of foreign law in their state courts, which is another way they have attempted to ban Sharia and no one seems to discriminate against Muslims. Alabama, Arkansas, Arizona, Louisiana, Kansas, Mississippi, North Carolina, Oklahoma, South Dakota, and Tennessee are among these states.

Impact of Sharia Law on the U.S. Constitution

American laws are based on a set of values and principles that are outlined in the U.S. Constitution. The American legal system must be the foundation of the Constitution. Sharia, in a similar manner, reflects the principles that must support Islamic law. On the question of whether the law of their country should be influenced by the Quran, Muslims participated in certain protests and rallies. However, there have been attempts by Muslims to create legislation defending a Muslim’s right to follow traditional Islamic law regarding marital disputes, divorce, and other family-related matters. More significantly, when it comes to trade and treaties, US courts consider international law, including foreign laws like Islamic law.

Muslims in America frequently support liberal political causes while simultaneously adhering to conservative views and beliefs. However, many American Muslims also support more conservative ideals, such as:

• By supporting their school vouchers, 
• Government funding for religious social service organisations, 
• Restrictions on abortion, 
• The death penalty, 
• Tax reductions, 
• Mandates that Americans speak English, and 
• Even stricter measures to combat terrorism.

Sharia is included in the majority of Muslim-dominated governments’ constitutions; nevertheless, family law is the only area where its principles are still generally upheld. If the US passed a constitutional amendment prohibiting sharia, it would be the same as prohibiting Americans. Muslims should oppose the implementation of justice and human rights. The majority of American Muslims accept the U.S. Constitution and do not support Sharia or Islamic law taking its place. All American citizens are granted these liberties and privileges by the nature of the United States Constitution.

Does Sharia Law supersede the U.S. Constitution? 

There were US citizens who favoured Sharia law over the Constitution because they find it to be more respectable and dignified and because it is the law of God. However, the U.S. Constitution was drafted by humans, not by the people who would eventually live under it. Since the US has a Constitution that guarantees freedom of expression and of religion, some people oppose substituting it with Sharia law. Additionally, they make the argument that people of all religions, including Christians, Jews, and others, are free to practice their religion in their own way anywhere in the nation. 

Many permissible interpretations of Islamic law, as well as ones that could mislead one, according to Muslim scholars. Some interpretations of the Islamic law that are much more severe and intolerant than others have only recently emerged. According to more extreme interpretations, there is only one collection of Sharia laws, and only those who abide by them will be saved by God. This is the path of discrimination, opposition to democracy and the advancement of Muslims over all other religions. The interpretation of Islamic law in the United States does not contradict American law even if it does not give instructions on crime and punishment.

Can American courts substitute religious law under civil law

According to the First Amendment’s Establishment and Free Excercise Clauses of the United States Constitution, everyone in the United States has the right to practice his or her own religion or no religion at all. The government cannot punish an individual or a group of people because of their religious beliefs. When issues over the laws of different religious traditions have occasionally found their way into civil courts in the United States, the Supreme Court has consistently decided that judges and other government officials may not interpret religious doctrine or rule on theological concerns. The United States Constitution says that Congress shall make no law respecting an establishment of religion or prohibiting its free practice. The prohibition applies equally to all religious groups.

What are the fears of Sharia Law in America that will grow among conservatives

Strict Islamic law is known as Sharia. It is intended to direct pious Muslims in their interpersonal and professional interactions. The Taliban and others have used it to defend restrictions on women’s rights and severe penalties, such as amputation and stoning. The issue surrounding the Islamic Cultural Center, just two blocks from the scene of the September 11 attacks, has been directly linked to the protests against Sharia law. The legal system in the United States is comparable to that of Great Britain, where courts are willing to uphold agreements reached in accordance with Jewish, Christian, or Islamic law and reached by religious tribunals, within reasonable bounds. However, there are 2 million Muslims living in the United States, a nation with a population of over 310 million people. 

Background of the anti-Sharia movement 

In June 2018, anti-Sharia rallies organised by ACT for America were conducted around the United States, attracting white nationalists, armed right-wing militias, and even neo-Nazis. The American Laws for American Courts model legislation, which can be found on the American Public Policy Alliance’s (APPA) website, is used in the bulk of anti-Sharia laws presented across the US. David Yerushalmi, a lawyer who makes statements regarding race, immigration, and Islamic law, was the leading force behind the anti-Sharia movement. He has started to have considerable influence in the American public discourse on Shariah.

The anti-Sharia movement is a part of a bigger, organised network-sponsored islamophobic campaign. Various initiatives taken to pass anti-Muslim laws at the state level have been unsuccessful, making Muslims and their faith targets as well. According to a report by the Center for American Progress, Yerushalmi wrote the sample anti-Sharia law that would make adhering to the Islamic law a crime that is punished by 20 years in prison. To persecute Muslims and create fear about the false threat of Sharia law, anti-Sharia law was employed in state legislatures across the country.

Anti-Sharia laws are now up for a legal challenge in accordance with the United States Constitution, both for potential interference with the important function of the courts and for the possibility of First Amendment rights to freedom of religion violations. Here, to extent that anti-Sharia legislation seeks to ban the application of Sharia for any reason at all in interpreting legal relations, it might be seen as an effort to obstruct the practice of Islam.

However, some people have developed a strong objection to Sharia law due to their fear of its impact on Islam. It is ridiculous to believe that banning Sharia law is the sole and most effective way to stop Americans from stoning adulterous women on public streets. There are certain negative impacts of Sharia law on the American legal system. Marriages, divorces, custody disputes, inheritance laws, and many other issues regularly come before the courts in this country at the crossroads of international affairs to have the provisions of laws and contractual agreements created under the laws of other countries interpreted. The courts are unable to carry out their duties properly as a result of the adoption of anti-Sharia laws. 

Statistics of the anti-Sharia movement

In the United States, the anti-Sharia bill was introduced and enacted in many states. Since 2010, 201 anti-Sharia law bills have been introduced in 43 states. In 2017, 14 states introduced an anti-Sharia law bill, with Texas and Arkansas enacting it.

Year	No. of states introduced the Bill	No. of states enacted the Bill
2010	10	3
2011	51	1
2012	24	3
2013	33	2
2014	14	1
2015	31	2
2016	12	0
2017	12	2

Conclusion 

Muslims in the USA are now required to uphold their religious morals in accordance with Sharia law, just as other religions are free to do the same. An individual cannot be forced to accept or implement any Sharia law as a legislative requirement. Just as other religions follow their own moral and holy laws, Muslims can live their private lives in accordance with Sharia. But in 2017, Muslims in America felt like their religious community was being discriminated against. However, the majority of Muslims are able to exercise their religion freely because of a guarantee given by the US Constitution. The First Amendment’s religion clause, which upholds the freedom of religion and religious practice, is a testament to the American way. Sharia law is based on a voluntary, private basis.

FAQs

What does Sharia Law actually entail?

Muslims should follow Sharia as their preferred form of divine instruction in order to live moral lives. Islamic law today is based on human interpretations of Sharia or fiqh.

Are all religious individuals and groups protected by the First Amendment to the U.S. Constitution?

Yes, all Americans of all religions are guaranteed religious freedom or freedom of conscience by the first amendment’s religion clauses. The first amendment’s definition of the civic foundation for religious freedom allows people of different faiths to live together as equal citizens of one nation. As a result, the United States is currently the most religiously diverse society in the world.

How do Muslims practice Sharia in America?

Muslims must respect Sharia in the same way that others must adhere to the sacred rules and traditions of their respective religions.

Can American courts ever substitute religious law for civil law?

No, the First Amendment’s Establishment And Free Exercise Clauses prohibit American courts or other government organisations from substituting civil law with religious law. This restriction applies uniformly to all religions.

References 

• https://www.hg.org/legal-articles/what-is-sharia-law-and-how-does-it-apply-in-america-31675 
• https://www.zwemercenter.com/the-application-of-sharia-law-in-the-united-states/
• https://ing.org/resources/for-all-groups/answers-to-frequently-asked-questions/a-closer-look-at-sharia-in-the-united-states/ 
• https://www.cbsnews.com/news/fears-of-sharia-law-in-america-grow-among-conservatives/#app 

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