Legal Authority consists
of primary and secondary sources. Primary sources include constitutions,
statutes and court opinions. Secondary authority includes legal treatises
and law review articles.
Federal Law is the highest form of
primary authority. The U.S. Supreme Court is the highest court in
the United States.
The order of legal authority of Courts
in the order of precedence is:
U.S. Supreme Court Opinions
Federal Circuit Court Opinions
Federal District Court Opinions
State Supreme Court Opinions
State Appellate Court Opinions
State Lower Courts
When one try's to understand how laws
are created and just who has final say or authority, it is sometimes confusing.
For example, if Congress enacts a law is the law the final word. No. Why?
Because congress can only act within it's powers set forth in the U.S.
Constitution. Who decides if congress exceeded it's authority? The
U.S. Supreme Court. Another example: If the U.S. Supreme Court
hears a case and makes a decision that the U.S. Congress does not like,
it can enact a law within it's powers that in effect repeals the decision.
Therefore, a checks and balances is somewhat in place.
The problem is that the Court and
Congress cannot always countercheck each other due to interpretations of
the U.S. Constitution by the U.S. Supreme Court. Abortion is the
best example of such an area.
Many times common sense and fairness
has no application in the law and there are thousands of examples reflected
in decisions of the Courts. Some are hard to understand, while others
can be easily understood, even if you do not agree with the decision. Example:
A Defendant charged with murder goes free because the search warrant used
to locate the evidence contained an error and the Judge excluded all seized
evidence. Why? Because the constitution prohibits unlawful searches and
seizures and the Supreme Court has ruled that evidence obtained from an
invalid search warrant cannot be used as evidence.
Two things are certain. Laws
change as people change and people change as laws change. What was
once legal is not legal now and what was once illegal is now legal.
Again, their are many examples. The most recent example is the public
change about tobacco and the resulting laws to limit tobacco use and prohibit
it's use in certain places. Our grandparents would never have dreamed
of such laws and our parents cannot believe that their long time habit
now prohibits them from enjoying traveling, eating out, going to sporting
events or even socializing.
I once heard a person say that he
could not wait to retire because he was retiring to a place outside the
United States. When I asked why, he said he had lived all his life,
except the last 15 years, in very nice foreign countries and that the US
is a nation of laws, laws, laws. He said the foreign counties laws
are made to keep bad people in line, not disrupt the lives of the good
people. It made me think. Is he correct? Do we place
too much emphasis on laws. In today's world, do you feel like the
Police in your City follow the "Duty to Serve and Protect" standard or
are out to get everyone and anyone. Maybe Mayberry is only now a dream.
