With this post I continue to share with the class and interested "others" summary study notes for the course readings. For this post we continue to consider section II of the materials: II.B. Hierarchies of Law and Governance: Ordering Government Through Law: Constitutions, Statutes, Treaties, Regulations, Judicial Decisions, and Other Sources. Comments and discussion most welcome.
The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.
--Edward S. Corwin, The “Higher Law” Background of American Constitutional Law (Cornell U. Press 1955). READ pp. 72-89.
--Charles McIlwain, Constitutionalism, Ancient and Modern (Cornell U. Press, rev. ed. 1947). READ 1-22
-- U.S. Constitution, Art. VI. Cl. 2.
--German Basic Law, arts.20-25; 31.
--Constitution of South Africa, arts. 2, 39, 146-150.
--Indiana Code 1-1-2-1
--Hierarchy of Law in Georgia
“About United States Code: The U.S. Code (USC) is the codification by subject matter of the general and permanent laws of the United States. It is divided by broad subjects into 51 titles and published by the Office of the Law Revision Counsel of the U.S. House of Representatives. The U.S. Code was first published in 1926. The next main edition was published in 1934, and subsequent main editions have been published every six years since 1934. In between editions, annual cumulative supplements are published in order to present the most current information.
FDsys contains virtual main editions of the U.S. Code. The information contained in the U.S. Code on FDsys has been provided to GPO by the Office of the Law Revision Counsel of the U.S. House of Representatives. While every effort has been made to ensure that the U.S. Code database on FDsys is accurate, those using it for legal research should verify their results against the printed version of the U.S. Code available through the Government Printing Office.
Of the 51 titles, the following titles have been enacted into positive (statutory) law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 41, 44, 46, 49, and 51. When a title of the Code is enacted into positive law, the text of the title becomes legal evidence of the law. Titles that have not been enacted into positive law are only prima facie evidence of the law. In that case, the Statutes at Large still govern. The U.S. Code does not include regulations issued by executive branch agencies, decisions of the Federal courts, treaties, or laws enacted by State or local governments. Regulations issued by executive branch agencies are available in the Code of Federal Regulations. Proposed and recently adopted regulations may be found in the Federal Register.” (About the United States Code, Government Printing Office).
After the Bible, Locke was the principal authority relied on by the preachers to bolster up their political teachings, although Coke, Pufendorf, Sydney, and later on some others were also cited. . . . Natural rights and the social compact, government bounded by law and incapable of imparting legality to measures contrary to law, and the right to resistance to illegal measures all fall into their proper place." (Ibid., 74-75).
Lord Acton has described the American Revolution as a contest between two ideas of legislative power. Even as late as the Declaratory Act of 1766, the American invocation of a constitution setting metes and bounds to Parliament did not fail of a certain response among the English themselves. . . . The direction which the great weight of professional [English] opinion was now taking was shown when Lord Mansfield . . . ., arose in the House of Lords to support the Declaratory Act. The passage of that measure by an overwhelming majority committed Parliament substantially to Milton's conclusion of a century earlier that 'Parliament was above all positive law, whether civil or common.'" (Ibid., 83-84).
In the first place, in the American written constitution, higher law at last attained a form which made possible the attribution to it of an entirely new sort of validity, the validity of a statute emanating from the sovereign people. . . . . But in the second place, even statutory form could hardly have saved the higher law as a recourse for individuals had it not been backed up by judicial review ." (Ibid., 89).
Sec. 1. The law governing this state is declared to be:
First. The Constitution of the United States and of this state.
Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.
Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.
Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth,) and which are of a general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.