The Sources of America's Laws

Sources of U.S. Law

Introduction

Today, most Americans are rightfully proud of the fact that the United States is a land of laws, but many may not realize the multiple sources of the laws that routinely affect their daily lives (Lupu, 2013). To help address this constraint, the purpose of this paper is to provide a description of the major sources of law under the American system of jurisprudence and how these different sources of law either complement or conflict with one another. In addition, a hypothetical vignette that describes a potential conflict between federal and state law concerning the possession of medical cannabis products in Idaho is followed by a summary of the research and important findings concerning these issues in the paper’s conclusion.

Major Sources of Law

Far and away, the major source of law in the United States is the Constitution from whence all other laws, policies and regulations flow. In this regard, the Chicago Council of Lawyers (2022) emphasizes that, “The U.S. founders learned from King George and others like him that they wanted and needed a country governed by the rule of laws, not of men. The Rule of Law in the United States does not begin with the President. It does not begin with any political party. It begins with our Constitution” (The United States is a nation ruled by laws, not kings, 2022, para. 4). Likewise, state constitutions are also a primary source of law across the country. In addition, another prime source of laws in the United States is natural laws which are discussed below.

One of the other major sources of law in the United States today is natural law. The definition provided by Black’s Law Dictionary (1990) notes that the term “natural laws” is used to “denote a system of rules and principles for the guidance of human conduct which [are] independent of an active law or the systems peculiar to any one people” (p. 1026). In other words, natural laws take priority over manmade laws when they conflict. In this regard, one legal authority points out that Rogers Williams, the founder of Providence Plantations (which would later become Rhode Island), maintained that “all political acts, which are not in accord with the natural law are merely acts of violence” (as cited in Higdon, 2021, p. 85). In reality, many natural laws, such as the fundamental right to self-defense and the religious liberty, have long been formally codified into American jurisprudence (Higdon, 2021).

Other major sources of American law include administrative laws such as rules, regulations, directives or orders which are promulgated by the executive branch of the federal government (Sources of law, 2022). Executive orders and directives are issued by the U.S. president while rules and regulations are made by federal administrative agencies such as the Environmental Protection Agency (Sources of law, 2022). In addition, various statutes are created by the legislative branch of government while the judicial branch generates case law and legal opinions which comprise the common law which is subject to continuous review and change by the judicial branch (Sources of law, 2022). In this regard, one legal authority reports that, “In a common law system, the law is expressed in an evolving body of doctrine determined by judges in specific cases, rather than in a group of prescribed abstract principles” (Sources of law, 2022, para. 5). In fact, only Louisiana maintains adherence to the Napoleonic civil law rather than the common law today. Although the common law “evolves” over time in response to changes in prevailing social norms and values, it is still heavily influenced by the doctrine of stare decisis which generally requires courts to follow the precedent established by previous cases (Sources of law, 2022). Given this wide array of sources, it is not surprising that there will be some legal areas and complement each other while others may conflict and these issues are discussed below.

Complement or Conflict

A conflict of law occurs in those instances in which two or more jurisdictions have laws in place with some common element that creates the need to determine which jurisdiction’s law will prevail in resolving a legal matter (Conflict of laws, 2022). Such conflicts of law can take place with respect to federal laws, state laws or even laws from other nations, but the overarching considerations in resolving such conflicts involve determining which jurisdiction’s laws should be applied. According to the legal authorities at Cornell Law School Legal Information Institute, this determination of the most appropriate jurisdiction in cases in which laws conflict is termed “classification” or “characterization" (Conflict of laws, 2022).

In cases of conflict involving diversity of citizenship for example, the “law of the forum” (or lex fori) can be applied; conversely, in those cases where the conflict involves procedural issues such as a monetary transaction, courts can elect to apply the lex loci approach that designates the site of the location as the appropriate jurisdiction to adjudicate the matter (Conflict of laws, 2022). It is important to note, however, that in cases of conflict, federal laws are generally superior to state laws. For example, the Legal Information Institute reports that, “Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions” (Supremacy clause, 2022, para. 3). This type of conflict can occur when federal and state laws are not harmonized such as the current situation with cannabis laws in the United States and a vignette illustrating such differences is presented below.

Client’s Legal Issue

Although unlikely, the following vignette is not only possible, it is plausible given the nebulous state of cannabis laws in the United States today and the disproportionate manner in which they are enforced against minorities. While more than half of the states have decriminalized the possession of marijuana, its possession and distribution remain federal crimes pursuant to the Controlled Substances Act and, more importantly, the aforementioned constitutional Supremacy Clause. Against this backdrop, it is possible for an African American disabled Vietnam war combat veteran, “Joe Hero,” who is a resident of Idaho, to be arrested and convicted of possessing marijuana which he uses to treat his posttraumatic stress disorder that was legally purchased in neighboring Montana. For instance, according to the Marijuana Policy Project (2022), “Under current Idaho law, an individual charged with possession of up to an ounce of marijuana faces a year in jail and/or up to a $1,000 fine. Unfortunately, this draconian law hits minority communities the hardest” (Idaho State Supreme Court, 2021, para. 5).

Indeed, African-Americans have historically been 400% more likely to be arrested and prosecuted for possession of marijuana in Idaho than their white counterparts (Idaho State Supreme Court, 2020). The mitigating factors of Joe’s service-connected disability and the legality of his purchase of cannabis products in neighboring Montana would likely help with having this charge dismissed or reduced in severity by a Idahoan court, the fact that these conflicting laws are still on the books underscores the need for nationwide harmonization of cannabis and other conflicting laws.