Learning Objectives
- Identify the three sources of law.
- Rank the three sources of law, from highest to lowest.
- Ascertain the purpose of the US and state constitutions.
- Ascertain one purpose of statutory law.
- Ascertain the purpose of case law.
- Define judicial review.
- Diagram and explain the components of a case brief.
Law comes from three places, which are referred to as the sources of law.
Constitutional Law
The first source of law is constitutional law. Two constitutions are applicable in every state: the federal or US Constitution, which is in force throughout the United States of America, and the state’s constitution. The US Constitution created our legal system, as is discussed in Chapter 2 “The Legal System in the United States”. States’ constitutions typically focus on issues of local concern.
The purpose of federal and state constitutions is to regulate government action. Private individuals are protected by the Constitution, but they do not have to follow it themselves.
Example of Government and Private Action
Cora stands on a public sidewalk and criticizes President Obama’s health-care plan. Although other individuals may be annoyed by Cora’s words, the government cannotarrest or criminally prosecute Cora for her speech because the First Amendment of the US Constitution guarantees each individual the right to speak freely. On the other hand, if Cora walks into a Macy’s department store and criticizes the owner of Macy’s, Macy’s could eject Cora immediately. Macy’s and its personnel are private, not government, and they do not have to abide by the Constitution.
Exceptions to the Constitution
The federal and state constitutions are both written with words that can be subject to more than one interpretation. Thus there are many exceptions to any constitution’s protections. Constitutional protections and exceptions are discussed in detail in Chapter 3 “Constitutional Protections”.
For safety and security reasons, we see more exceptions to constitutional protections in public schools and prisons. For example, public schools and prisons can mandate a certain style of dress for the purpose of ensuring safety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which the First Amendment guarantees. However, if wearing a uniform can lower gang-related conflicts in school and prevent prisoners from successfully escaping, the government can constitutionally suppress free speech in these locations.
Superiority of the Constitution
Of the three sources of law, constitutional law is considered the highest and should not be supplanted by either of the other two sources of law. Pursuant to principles of federal supremacy, the federal or US Constitution is the most preeminent source of law, and state constitutions cannot supersede it. Federal constitutional protections and federal supremacy are discussed in Chapter 2 “The Legal System in the United States”and Chapter 3 “Constitutional Protect