How many of you would be surprised to learn that those attending law school aren’t required to study the supreme law of the land? Every attorney I’ve asked has told me they did not study the Constitution in law school, they studied Constitutional Law. I wanted to take some time to discuss not only what the difference is, but why it’s important.
So, what is Constitutional Law? Well, Merriam-Webster defines it as:
a body of statutory and case law that is based on, concerns, or interprets a constitution
Merriam-Webster Dictionary
Therefore, Constitutional Law is statutory and case law is about a constitution. Statutory law in the U.S. consists of the laws that Congress has passed. I don’t have a problem with that, as long as the statutory law is within the powers granted by the Constitution. My concern is with what is called “case law”, since it is, by definition, not law at all:
law established by judicial decision in cases
Merriam-Webster Dictionary
This means “case law” is actually the opinions of judges. Don’t forget, every federal judicial decision starts out with the words, “In the opinion of the court”. Have you noticed any problem with this yet?
The Problem
All legislative Powers herein granted shall be vested in a Congress of the United States,
U.S. Constitution, Article I, Section 1
The problem with this view of judicial opinion actually stems from the first legally binding words in the Constitution: All legislative power is granted to Congress and not to the courts.
LEGISLATIVE,
Webster’s 1828 Dictionary
Giving or enacting laws; as a legislative body.
Since all power to give or enact laws belongs to Congress, why do we call the opinions of judges “case law”? Why do we act like the courts have legislative power when we did not grant it to them? Regardless of the intent, the reason we do this is because we have let the courts and Congress get away with subverting the Constitution.
Judicial Review
Those of us who follow federal court cases have probably heard of the case Marbury v. Madison and have been told this is where we get the concept of judicial review. I’ve read the opinion in that case, and yes, Chief Justice Marshall did say:
It is emphatically the province and duty of the Judicial Department to say what the law is.
Marbury v. Madison Opinion
If the court has the province and duty to “say what the law is”, I can see why “case law” would seem so important. But, like so many things in life, context matters. And in the case of judicial review, if we look at the above quote in context we find:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Marbury v. Madison Opinion
Did you see what Chief Justice Marshall said? He did not say that the courts get to dictate what the law is, in effect to create law. He said it is the duty of the court to interpret all applicable laws in a case, and if there is a conflict with the Constitution, they must apply said Constitution to that case. So what many today call “case law” is really the opinions of specific courts, looking at specific cases, with specific facts and specific decisions. Most importantly, those decisions apply only to that specific case. What “case law” is not, is law itself. Only Congress has the power to enact laws through legislation.
Where things stand now
Walk into a large law firm or a county law library and do you know what you will find? Stack upon stack of law books. The Library of Congress has a law library boasting 2.9 million volumes! That is 2.9 million books covering over 230 years, mostly filled with the opinions of individuals and small groups. It is unfortunate these opinions are not only treated as law, but are frequently given precedence over actual laws enacted by the people (the Constitution) and those who represent the people of the United States (statutes).
If you’ve watched any of the supreme Court confirmation battles over that last several decades, you’ve probably seen repeated calls for the nominee to support precedent or stare decisis (Latin for let the decision stand). In other words, they call for the nominee, should he or she be elevated to the position of justice, to support previous decisions above all other considerations-even above the law itself. I don’t know everything that is included in the oath of office for a federal judge, but I do know that it must include language to support the Constitution of the United States:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;
U.S. Constitution, Article VI, Clause 3
This means even though federal judges are required to be bound by oath or affirmation to support the Constitution, a Constitution which is the supreme law of the land, we see them looking to the opinions of their fellow judges, frequently above the Constitution they swore or affirmed to support.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
U.S. Constitution, Article VI, Clause 2
What can we do?
Now before you start pointing your finger at those judges and justices, let me remind you of a few salient points. First, each and every one of those judges and justices was confirmed by a Senate made up of people chosen by you and me, acting as our agents in our name. Second, the House of Representatives is made up of people chosen by you and me as well, acting as our agents in our name. The difference is that House of Representatives has the sole power to impeach those judges and justices for bad behavior.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,
U.S. Constitution, Article III, Section 1
If anyone is to blame for the supremacy of “case law”, for unconstitutional judicial decisions, and the slavish devotion to stare decisis by judge and attorney alike, it is us. The question now is, what will we do about it? I recently interviewed a candidate for Congress that I was asked to support. While many of their ideas were very good, they did not provide any plans to actually move toward a return to a constitutional republic and the rule of law. This is not surprising, since have been taught for decades a falsehood about how our government is designed to work. It is time for us to start finding candidates that will put their oath of office above not only party, but above their desire to hold office, too. Until then we will continue to be ruled by an unelected oligarchy in black robes.
