Source of US Law: Common Law, Constitution, Statute & Regulation

Sep 25, 2010
David J. Shestokas

Ten Commandments, an Original Source of Law - Moses

There is a great interest these days in the US Constitution. It is the organic legal document, but not the only source of law. It all began with Common Law.

The United States has a complex web of law, each strand with a different sources and relationships to the other. Beyond the Constitution are court cases, laws passed by Congress and state legislatures, ordinances passed by local governments and regulations of administrative agencies. All of these are law.

The Common Law

In medieval England, the law was simply the word of the King, bishop or sheriff, often mixing secular law with liturgical law tracing back to the Ten Commandments. The King appointed judges to serve throughout the kingdom. Early on different judges would decide matters with similar facts differently. In 1154, under King Henry II, judges began returning to London to discuss cases and record their decisions. A system of precedent evolved around the concept of stare decisis. (Latin for “to stand by decisions”).

The judges’ recorded decisions would be studied and followed by other judges deciding cases with facts similar to earlier cases. These records of cases became the common law. The American colonies were subject to the common law of England. English common law was the earliest law for the United States. It remained in effect as precedent, even after the Constitution was adopted.

This tradition lead to Chief Justice John Marshall’s famous statement in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.”

It is the continuation and evolution of the common law as recorded that gives meaning to all other sources of law. However, the common law can be changed for the future by either constitutional amendment or legislative action.

The United States Constitution and State Constitutions

The federal government and each of the fifty states have their own constitutions. The US Constitution and the state constitutions are sets of rules for government, defining the organization, and enumerating government’s powers, limits and functions.

The US Constitution additionally defines the relationship between the federal and state governments. These organizational statements also effectively express the philosophy of the relationship between a government and its people.

While the Constitution is the “supreme law of the land”, in some instances, by virtue of the Tenth Amendment, state constitutions have more force and effect in specific areas. The states principally control matters such as local criminal law, land law, contract law, and family law. Those are among the powers recognized as reserved to the people by the Tenth Amendment.

Statutes: Laws Passed by the Legislatures

When Congress (the national legislature) or a state legislature passes a law, the law must comply with the processes, be within the powers and not beyond the limits set out by the relevant constitution. A law passed in the prescribed manner is called a statute. Statutes are typically organized into codes, with the codes organized according to subject matter.

Long ago, the common law had developed to define many areas of law including contracts, personal injury and more. When there was a new subject presented to a court, the court would make a decision and this would become the law. As legislatures became active in all legal areas, the will of the people, as expressed in statutes passed by their representatives would supersede the common law. Statutes are effectively superior to common law and if a court makes a decision pertaining to a statute that the legislature does not like, it can overrule the court with a new statute.

If a statute does not comply with a constitution’s grant of power, limitations or prescribed process for passage, a court may declare it void as unconstitutional. In matters of constitutional interpretation, legislatures cannot overrule the courts. This can only be done with a constitutional amendment.

Law passed by local bodies, such as boards, cities, and counties are ordinances. These bodies have only those powers that are granted by state legislatures. Any ordinance may be overruled by a legislature, through a change in state statute.

Regulations and Rules Promulgated by Administrative Agencies

Since the New Deal, there has grown up a virtual alphabet soup of regulatory agencies: FDA, FCC, ICC, FTC, ATF, EPA, CFTC, EEOC, FEC, FHA, FRA and more. These agencies and similar entities in state government are part of the executive branch. They are under the control of the president at the national level and the governors at the state level.

Congress and state legislatures have given these agencies the authority to make rules that have the full force and effect of law. These rules are called regulations. The Administrative Procedure Act sets forth the rulemaking process at the federal level and similar acts do so at the state level. Typically the process calls for publication of a proposed rule, public hearing and comment, then final publication in the Code of Federal Regulation or similar state code.

The granting of power to an executive agency to make law is called a delegation of legislative authority by the legislature. At one time, the power grant was thought unconstitutional as violating the separation of powers. As society became more complex and details regarding many things, such as the FDA’s rules for approving new drugs were thought beyond the capabilities of legislatures to deal with such detail courts began to accept this practice. The practice remains controversial among many, who still consider it to be unconstitutional.