1. Overall Structure
2. Role of the Court
3. Role of “higher law”
The Constitution is the Higher Law
the old days
-- the law was the law.
-- the lawgiver gave the law
-- always, people said “there was a higher law” – e.g., god’s law.
-- but this was always amorphous and personal
America tries to legalize higher law
-- Write the fundamentals down (codify them).
But how is this different from
other law? Always, the laws How can this be done?
were stated since the days of
How do you codify
law in way that is
different from 0
(“higher to”) the 0
other codified law? 0
Codify Fundamental Law
-- Write down all those fundamental things that are the highest
form of law
-- Write down the sacred traditions. Write down the principles of
“right reason.” Write down the natural truths.
-- Write down all of the Enlightenment Truths
-- Write down those Common Law rules that cannot be voided
-- Send the written instrument into a democratic ritual, and if it
passes, THAT becomes the social contract.
It’s own Sanctification process Its own democratic
-- Note that when America passes its Constitution, it will
demand that the constitution-writing process be different than
its legislative writing process:
• assembly meets in secret (jury)
• the public passes judgment on the creation, sending
delegates to a ratifying convention
• the people who draft the constitution are not the same
assembly as the people who draft statutes
It’s own Sanctification process
-- The states had to redraft their “constitutions” because,
originally, they didn’t do them right. The legislature passed
-- So they called for constitutional conventions and re-wrote the
Note the Significance:
• Positivism is stealing natural law’s thunder
Taking certain previous examples of “natural law” and
promoting them into a positivistic universe. The sacred
fundamentals are now RULES that have the same
appearance as the other ones.
• The American Constitution is sort of a “Super
What does this do to
Bonham’s case be
handled under this 0
Notice What this does to Bonham’s Case
-- If there are no fundamentals beyond what is formally
articulated, then ….
common law is no longer “special”
The Political Assembly can overturn it
-- In the American system, Congress is allowed to overturn
common law decisions
-- Bonham’s only choice is to argue that the law is
Common Law as the Lowest Form of Law
-- the common law is the lowest form of law in the system
(legislatures overturn common law rules all of the time)
American Legal Hierarchy –
1. Constitutional rules
• Procedure 2. Statutory rules
• Torts (injuries) 3. (Administrative regulations)*
• Contracts 4. Common Law
-- Notice that there is a major loophole in American
-- Although judges can only declare statutes void if they are
against the constitution, the constitution, itself, says:
The enumeration in the Constitution, of certain rights
shall not be construed to deny or disparage others
retained by the people..
-- 9th Amendment
-- If only a “super statute” can strike down a statute, but the
super statute says that what is “super” might be unstated,
there is an interesting riddle here.
Positivism franchising its competitor?
Mention Judicial restraint
(Judges have tended to be scared of this power)