So, not my fault.

On this day, November 16, 217 years ago, Governor James Garrard of Kentucky signed into law the first of two landmark pieces of legislation known to history as the Kentucky Resolutions. 

The first bill was passed by tthe Kentucky state House on November 10, 1798 and by the Senate on November 13. The bill was then signed into law by Governor Garrard three days later.

As is widely known, the Kentucky Resolution of 1798 was authored by Thomas Jefferson (shown), while a companion measure introduced in the Virginia state assembly was written by his frequent collaborator, James Madison.

The measures were reactions by the two first-tier Founders to the enactment by President John Adams of the Alien and Sedition Acts during the summer of 1798.

Those pernicious pieces of legislation (four acts in all) granted the federal government new and expansive powers. The so-called Alien Acts were used by the president to declare foreign residents in the United States to be enemies of the state and to have them jailed and deported. The Sedition Acts, on the other hand, endowed the president with the power to outlaw and punish any criticism of the Adams administration considered by the executive branch to be “seditious.”

The former “laws” obliterated due process while the latter violated the right of Americans to speak freely and to criticize the government, as protected by the First Amendment.

The summer before the passage of the Sedition Act, a strong-arm tactic taken by John Adams against a political adversary hit Thomas Jefferson very close to home: the prosecution of Samuel Jordan Cabell. It was one of the events that eventually compelled him to pen the principles of nullification in 1798.

Samuel Jordan Cabell was a congressman representing Thomas Jefferson’s home district in Virginia. In May 1797 a grand jury returned a presentment of libel against Cabell (incidentally, as a delegate to the Virginia ratifying convention, Cabell voted against ratification of the Constitution). What was Cabell’s crime? He sent a letter to constituents criticizing the administration of John Adams. 

That’s it. That was the sum of his seditious plot. A letter to voters in his district calling out some act of the president with which he disagreed.

For this effrontery to his authority, John Adams charged Cabell with “endeavoring at a time of real public danger to disseminate unfounded calumnies against the happy government of the United States.” 

That was Samuel Jordan Cabell’s predicament — caught in the spokes of a federal conspiracy — until Thomas Jefferson learned of the grand jury’s action. In response to the presentment handed down against his congressman, Jefferson anonymously (for even the author of the Declaration of Independence feared being found openly questioning the national government) petitioned the Virginia House of Delegates asking that the members of the grand jury be punished.

Upon learning of Jefferson’s petition in defense of Cabell, James Monroe counseled his fellow Virginian that he would be better off making his request to Congress instead of the state government. Jefferson’s response makes it clear what the Sage of Monticello thought of Monroe’s understanding of the true seat of sovereignty. He knew that “the system of the General Government is to seize all doubtful ground.” If the people were to sit still, would we lose everything, he warned.

Who did Jefferson believe had the right and the responsibility to protect citizens from federal abuse of power? The states. “It is of immense consequence that the States retain as complete authority as possible over their own citizens,” he wrote.

From this masterfully crafted letter in response to Monroe, we see that before he penned his views on the proper constitutional relationship between state and national government in the Kentucky Resolutions, Jefferson understood, shared, and promoted the principle of state authority to check federal overreaching.

Within a month of Congress’s passage of the Sedition Act, Jefferson had written the first draft of the Kentucky Resolution, declaring in its first paragraph:

That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.

Then, as he did in the Declaration of Independence, Jefferson lays out the manifold violations of the Constitution committed by the federal government.

Next, he proposed a sound solution to the tyranny:

Therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.

Kentucky’s state lawmakers and governor agreed. In fact, on November 7, 1798, Governor Garrard spoke to the members of the Kentucky Legislature, rehearsing to them the strident opposition to the Alien and Sedition Acts already enacted by many of the commonwealth’s counties.

Garrard warned the representatives that Kentuckians were “utterly disaffected to the federal government.” He said that Kentucky and all states retain the power to “applaud or to censure that government, when applause or censure becomes its due.” He concluded his remarks by encouraging the state legislators to reaffirm their commitment to the union and to the Constitution by firmly renouncing “all unconstitutional laws and impolitic proceedings” of the federal government.

After reading the Kentucky and Virginia Resolutions, one wonders why in the last decade or so since the beginning of the undeclared but never ending “War on Terror,” has there been no wholesale multi-state repudiation of warrantless wiretapping, warrantless pat-downs at airports, warrantless death by drone, warrantless GPS tracking of cars, the near abolition of habeas corpus and codification of the indefinite detention of American citizens without due process of law.

Why have the states so completely and meekly abdicated their rightful position of power? 

Why have they deserted their posts as sentinels set to watch for the approaching advance of federal absolutism? 

Why do Americans look to Washington for cures to diseases bred by the swarms of would-be dictators that infest that former swamp? 

Why do we sit idly by as congressmen, courts, and the president conspire to reduce our state governments to mere colonies of the federal empire? 

Are state lawmakers and governors now so accustomed to their servitude that a benign stupor is their only reaction to the placement by the federal government of tighter and tighter chains around their necks? 

Nullification, as defined by Jefferson in the Kentucky Resolution of 1798, is the most powerful weapon against the federal assault on state sovereignty and individual liberty. As Jefferson explained, states, as creators of the federal government, have the authority to nullify any act of the federal government that exceeds the constitutional boundaries of its delegated powers.

By applying the principles Jefferson expounded in that seminal document, states could simultaneously rebuild the walls of sovereignty once protected by the Constitution, in particular the 10th Amendment, and drive the forces of federal consolidation back to the banks of the Potomac.

Image: Thomas Jefferson

Wasn't gonna read it anyway.

Figures, dipstick.

He was always "one weird it" as a poster screwball.

Are state lawmakers and governors now so accustomed to their servitude that a benign stupor is their only reaction to the placement by the federal government of tighter and tighter chains around their necks?

Yes, the people demand a chain of fools by voting Republican and Democrat.

Nullification, as defined by Jefferson in the Kentucky Resolution of 1798, is the most powerful weapon against the federal assault on state sovereignty and individual liberty. As Jefferson explained, states, as creators of the federal government, have the authority to nullify any act of the federal government that exceeds the constitutional boundaries of its delegated powers.

It was really an act of desperation as going through the courts would have been a futile gesture. The U.S. Supreme Court was 100% Federalist.

217 years later, it is solid fact that states cannot attempt to nullify an act of the federal government without the U.S. Army showing up at their door. As the U.S. Supreme Court, President Eisenhower, and the 82nd Airborne explained, Jefferson and Madison did not prevail on the question of state nullification.

Cooper v. Aaron, 358 U.S. 1 (1958)

Cooper at 4:

We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.

Cooper at 17:

Whoever, by virtue of public position under a State government, ... denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning." Ex parte Virginia, 100 U. S. 339, 347. Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, 100 U. S. 313; Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230; Shelley v. Kraemer, 334 U. S. 1; or whatever the guise in which it is taken, see Derrington v. Plummer, 240 F. 2d 922; Department of Conservation and Development v. Tate, 231 F. 2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." Smith v. Texas, 311 U. S. 128, 132.

Cooper at 18-19:

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506," 524. No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the 'egislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes; in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U. S. 378, 397-398.

217 years later, it is solid fact that states cannot attempt to nullify an act of the federal government without the U.S. Army showing up at their door.

The recreational pot sales states seem to be getting away with nullifying the enforcement of federal drug laws.

And several states managed to nullify the subsidy requirements of the ACA. They refused to set up the required state exchanges and got the federal subsidies anyway.

dipstick

Good luck finding someone to read it to you. Not that you could grasp it anyway.

217 years later, it is solid fact that states cannot attempt to nullify an act of the federal government without the U.S. Army showing up at their door. As the U.S. Supreme Court, President Eisenhower, and the 82nd Airborne explained, Jefferson and Madison did not prevail on the question of state nullification.

People also rape not just the laws of our nation,but other people also.

Does that mean physical rape is either moral or legal just because our government commits judicial rape? One thing is certain,and that is they will continue to do it so long as people shrug and say "So what?".

The recreational pot sales states seem to be getting away with nullifying the enforcement of federal drug laws.

No, that would be the Obama administration not enforcing the drug laws. The Federal drug laws apply in all 50 states, and with a new administration, some states may find their decriminalization actions to be actively opposed by the Federal government.

And several states managed to nullify the subsidy requirements of the ACA. They refused to set up the required state exchanges and got the federal subsidies anyway.

Nobody has nullified the subsidy "requirements" of the ACA. Setting up state exchanges was voluntary per the ACA. They chose not to volunteer.

In King v. Burwell, the U.S. Supreme Court (dubiously) upheld the tax credits in States with a Federal Exchange. No matter how much one may disagree with the opinion, there is not doubt that, in fact, the argument against the provision of tax credits by the Federal Exchanges failed.

King v. Burwell, S. Ct. 14-114 (25 Jun 2015) slip op.

Syllabus at 2:

Held: Section 36B’s tax credits are available to individuals in States that have a Federal Exchange. Pp. 7–21.

Opinion of the Court at 10:

By using the phrase “such Exchange,” Section 18041 instructs the Secretary to establish and operate the same Exchange that the State was directed to establish underSection 18031. See Black’s Law Dictionary 1661 (10th ed. 2014) (defining “such” as “That or those; having just been mentioned”). In other words, State Exchanges and Federal Exchanges are equivalent—they must meet the same requirements, perform the same functions, and serve the same purposes. Although State and Federal Exchangesare established by different sovereigns, Sections 18031 and 18041 do not suggest that they differ in any meaning­ful way. A Federal Exchange therefore counts as “an Exchange” under Section 36B.

Opinion of the Court at 21:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is con­sistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Con­gress’s plan, and that is the reading we adopt.

217 years later, it is solid fact that states cannot attempt to nullify an act of the federal government without the U.S. Army showing up at their door. As the U.S. Supreme Court, President Eisenhower, and the 82nd Airborne explained, Jefferson and Madison did not prevail on the question of state nullification.

Does that mean physical rape is either moral or legal just because our government commits judicial rape?

State nullification of Federal laws or Federal court decisions is a nullity. That is the fact. Deal with it.

As a correction, it was the 101st Airborne that explained the situation to Governor Faubus.

State nullification has been rejected every time it has come before a Federal court.

As a legal precedent, it was decided over two centuries ago by the U.S. Supreme Court when Chief Justice Marshall pointed out that "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States ... the constitution itself becomes a solemn mockery."

The United States v. Judge Peters, 9 U.S. 115, 136 (1809), Marshall, CJ

If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrtumentality of its own tribunals. So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the union, and in averting consequences so fatal to themselves.

Nullification, as defined by Jefferson in the Kentucky Resolution of 1798, is the most powerful weapon against the federal assault on state sovereignty and individual liberty. As Jefferson explained, states, as creators of the federal government, have the authority to nullify any act of the federal government that exceeds the constitutional boundaries of its delegated powers.

Jefferson's explanation is still true, -- despite the fact that this State nullification authority has seldom been used..

nolu claims;-- 217 years later, it is solid fact that states cannot attempt to nullify an act of the federal government without the U.S. Army showing up at their door. As the U.S. Supreme Court, President Eisenhower, and the 82nd Airborne explained, Jefferson and Madison did not prevail on the question of state nullification.

No, the fact is, - that the SCOTUS opinion was accepted as constitutional, - Eisenhower agreed, sent in troops to keep order, and the 'separate but equal' movement collapsed.

217 years later, it is still a solid fact that the federal govt cannot attempt to nullify an act of our Constitution (such as the 2nd), --- without the U.S. citizenry showing up at their door, hopefully backed up by the President. And as the oath keepers of the 82nd Airborne would explain, Jefferson and Madison shall always prevail on the question of state nullification.

er at 18-19:

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that; ----

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

- See more at: caselaw.findlaw.com/us-supreme- court/5/137.html#sthash.xshj4p5F.dpuf

As a correction, it was the 101st Airborne that explained the situation to Governor Faubus.

I am aware of that. I have a cousin that refused to go that was in the 101st. He went AWOL,spent time in the stockade,and got a Bad Conduct Discharge.

I suspect the stockade time was more due to him knocking out a MP Lt than it was for the actual AWOL charge

The funny part is when he came home his father,my uncle George told him he had to go back and face the music,and finally convinced Mackie to go back. Uncle George loaded him up in his 54 Dodge pu and took off for Ft.Campbell,Ky,at his top speed of 45 MPH. The truck could go faster than that,but not with Uncle George behind the wheel.

I had to laugh when Uncle George told me about it. He said he and my aunt let Mackie off at the main gate and watched him being walked away in handcuffs by the MP's.

What was funny was when he told me that when he and my aunt got back home,Mackie was sitting in the house watching television. He had overpowered the MP's and beaten them back home by hitchhiking.

Mackie was about 6'5" and maybe 275 lbs. Most of it muscle. Uncle George was even bigger,but unlike Mackie he didn't have much of a temper. I saw Uncle George pick up a straight 8 Buick engine and set it in the back of his pickup,and he was in his 60's then. I saw him pick a 200 cubic inch 6 cylinder Ford engine out of his boat and throw it up on the bank when he was in his 70's. I offered to help him get it out of the boat,but he told me he didn't need any help.

No, that would be the Obama administration not enforcing the drug laws.

Correction: Yes, that would be the Obama administration, and the DEA, and the Justice Department, not enforcing the drug laws so those states successfully nullified an act of the federal government without the U.S. Army showing up at their door.

Nobody has nullified the subsidy "requirements" of the ACA.

Let's compare.

JUSTICE SCALIA, with whom JUSTICE THOMAS and JUSTICE ALITO join, dissenting:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

The majority's arguments were empty and self-serving rationalizations for making law from the bench. You do admit that, right?

So as we can see, your hypothetical U.S. Army invasions of states are far from inevitable. They are, in fact, exceedingly rare. Your premise collapsed.

State nullification of Federal laws or Federal court decisions is a nullity. That is the fact.

A fact not only not in evidence, but already earlier refuted in this thread.

Jefferson's explanation is still true, -- despite the fact that this State nullification authority has seldom been used..

Seldom as in never.

Jefferson's anonymous explanation was words. It fell to the Supreme Law of the Land.

At Little Rock, Gov. Faubus got his mind right and got out of the way. Jefferson and Madison never prevailed on nullification, any more than John Calhoun.

so those states successfully nullified an act of the federal government

No, the Federal government not enforcing a law does not equate to the State nullifying it. If a new administration comes in and enforces it, the State remains unable to nullify a federal law.

The state has merely eliminated prior state criminal statutes, and has not volunteered to enforce federal law.

Nobody has nullified the subsidy "requirements" of the ACA.

States exchanges were explicit requirements of the law for the receipt of the subsidies. The states nullified the Act of Congress without the U.S. Army showing up at their door, albeit with the assistance of subsequent judicial legislation by the Court.

Never happened, and your interpretation of the law (and mine) is contradicted by the interpretation of SCOTUS. SCOTUS is the ultimate arbiter. If the State sets up an exchange, applicants may be eligible for and receive a subsidy. If the State chooses not to set up an exchange, the Federal government sets up an exchange and applicants may be eligible for and receive a subsidy. No State has nullified anything.

The majority's arguments were empty and self-serving rationalizations for making law from the bench. You do admit that, right?

I have previously voiced my disagreement with the majority opinion. A four-justice dissenting opinion does nothing other than record dissent. Our opinions are merely opinions. The majority opinion becomes law.

So as we can see, your hypothetical U.S. Army invasions of states are far from inevitable. They are, in fact, exceedingly rare. Your premise collapsed.

No, your premise is non-existent. The has been no state nullification of any part of the ACA. The States that brought suit, LOST. The ACA is still there, stumbling along on its deathmarch to fiscal meltdown.

No, the Federal government not enforcing a law does not equate to the State nullifying it.

It absolutely does. In the case of state recreational pot sales, the federal government has selectively surrendered the enforcement of its federal drug laws and has NOT sent in the U.S. Army. The federal government's surrender is so abject that we now have different federal enforcement standards, state by state, with the state standards controlling the federal enforcement levels.

Our opinions are merely opinions. The majority opinion becomes law.

Let's move on to another example of successful state nullification of federal law. The Federal 1974 Emergency Highway Energy Conservation Act prohibited states from having speed limits higher than 55 miles per hour. Multiple states nullified the law by simply posting the federal limit then NOT enforcing it. The law was a standing joke, laughed at and openly violated by millions in multiple states across America. No U.S. Army invasions occurred. Congress surrendered, first amending and then later repealing the law.

The has been no state nullification of any part of the ACA.

The states that refused to meet the exchange requirements demanded and received the subsidies. The requirement was nullified as the result of deliberate state noncompliance with the requirement.

The majority's argument was nonsense. You know it.

nolu claims;-- 217 years later, it is solid fact that states cannot attempt to nullify an act of the federal government without the U.S. Army showing up at their door. As the U.S. Supreme Court, President Eisenhower, and the 82nd Airborne explained, Jefferson and Madison did not prevail on the question of state nullification.

No, the fact is, - that the SCOTUS opinion (on Brown) was accepted as constitutional, - -- Eisenhower agreed, sent in troops to keep order, and the 'separate but equal' movement collapsed.

217 years later, it is still a solid fact that the federal govt cannot attempt to nullify an act of our Constitution (such as the 2nd), --- without the U.S. citizenry showing up at their door, hopefully backed up by the President.

And as the oath keepers of the 82nd Airborne would explain, Jefferson and Madison shall always prevail on the question of state nullification.

The states that refused to meet the exchange requirements demanded and received the subsidies.

You have that backwards. The States sued to have the Court enforce the law as a prohibition against the Federal government granting subsidies on an exchange not established by the State. They were trying to destroy the ACA.

The States LOST.

No, the Federal government not enforcing a law does not equate to the State nullifying it.

It absolutely does.

It absolutely does not. A Federal failure to enforce a law is not a State nullification of a law.

Change the president, to one who sees fit to do his job, and enforcement of the law may resume.

Legislatures make law. The Court's opinion is no more a law than my opinion.

The majority of federal laws are not written by the legislature. Administrative agencies write most of them.

http://law.justia.com/cases/

Check out Case Law.

The Common Law system of law without case law is an impossible concept.

Jefferson and Madison shall always prevail on the question of state nullification.

History will always demonstrate that state nullification has never succeeded.

217 years later, it is still a solid, easily verified fact that the federal govt cannot attempt to nullify an act of our Constitution (such as the 2nd), --- without the U.S. citizenry showing up at their door, hopefully backed up by the President.

Roscoe --- the federal government has selectively surrendered the enforcement of its federal drug laws and has NOT sent in the U.S. Army. The federal government's surrender is so abject that we now have different federal enforcement standards, state by state, with the state standards controlling the federal enforcement levels.

nolu chan erroneously claims;--- Our opinions are merely opinions. The majority (scotus) opinion becomes law.

Roscoe--- Legislatures make law. The Court's opinion is no more a law than my opinion. Nor does the Supreme Court have the means to enforce its decrees. Its rulings stand at the pleasure of Congress and the President.

Amazingly enough roscoe and I agree about this clearly verifiable constitutional fact. -- It is a pity that nolu chan cannot explain WHERE he was misinformed, and WHY he continues to insist that the SCOTUS can make law..

Roscoe--- Legislatures make law. The Court's opinion is no more a law than my opinion. Nor does the Supreme Court have the means to enforce its decrees. Its rulings stand at the pleasure of Congress and the President.

Amazingly enough roscoe and I agree about this clearly verifiable constitutional fact. -- It is a pity that nolu chan cannot explain WHERE he was misinformed, and WHY he continues to insist that the SCOTUS can make law..

nolu-- The majority of federal laws are not written by the legislature. Administrative agencies write most of them.

You're confusing administrative regulations with laws written 'in pursuance' of our Constitution.

law.justia.com/cases/

Check out Case Law. --- The Common Law system of law without case law is an impossible concept.

How silly that you think your link to case law proves your point.

As I've posted before, case law applies to the case specified... They are NOT the 'law of the land'. ---- Only laws written "in pursuance thereof" are valid.

How silly that you think your link to case law proves your point.

All you have proven is that you are either too dumb, stupid, or ignorant to understand what the Common Law system of law is, even though it is the system of law adopted by the United States.

As I've posted before, case law applies to the case specified; -- 'case laws' can be ( and frequently are) overturned by higher courts and legislation. They are NOT the 'law of the land'. ---- Only laws written "in pursuance thereof" are valid.

All you have proven is that you are either too dumb, stupid, or ignorant to understand what the Common Law system of law is, even though it is the system of law adopted by the United States.

Your misconceptions about common law are noted, and your inability to actually back up those misconceptions with facts is silly and becoming a joke on LF.

As I've posted before, case law applies to the case specified; -- 'case laws' can be ( and frequently are) overturned by higher courts and legislation.

You still sound like Jeff Probst recently reading votes on Survivor for Kelley who had just played her immunity idol.

Brown v. Board of Education. Does not count. Roe v. Wade. Does not court. D.C. v Heller. Does not count. McDonald v. Chicago. Does not count. Obergefell v. Hodges. Does not count.

Only Brown is free from discrimination, only Roe can get an abortion, only Heller and McDonald et al can own guns, and only Obergefell can marry his same-sex partner. So sayeth the Law God™.

U.S. Supreme Court decisions are subject to being overturned by the legislature or the higher tpaine court of the imagination.

As I've posted before, case law applies to the case specified; -- 'case laws' can be ( and frequently are) overturned by higher courts and legislation.

You still sound like Jeff Probst recently reading votes on Survivor for Kelley who had just played her immunity idol.

Sorry, but I don't watch idiotic shows like survivor, or use them in juvenile attempts to tar baby debate opponent's.

Brown v. Board of Education. Does not count. Roe v. Wade. Does not court. D.C. v Heller. Does not count. McDonald v. Chicago. Does not count. Obergefell v. Hodges. Does not count. --- Only Brown is free from discrimination, only Roe can get an abortion, only Heller and McDonald et al can own guns, and only Obergefell can marry his same-sex partner. So sayeth the Law God™. ---- U.S. Supreme Court decisions are subject to being overturned by the legislature or the higher tpaine court of the imagination.

The fact remains, - that the SCOTUS opinion (on Brown) was accepted as constitutional, - -- Eisenhower and Congress agreed, -- Ike sent in troops to keep order, and the 'separate but equal' movement collapsed.

217 years later, it is still a solid, easily verified fact that the federal govt cannot attempt to nullify an act of our Constitution (such as the 2nd), --- without the U.S. citizenry showing up at their door, hopefully backed up by the President.

Your ravings about the 'Law God' are amusing, and only prove my point, -- that you can no longer debate the issue, and are reduced to hyperbole.

As I've posted before, case law applies to the case specified; -- 'case laws' can be ( and frequently are) overturned by higher courts and legislation.

You still sound like Jeff Probst recently reading votes on Survivor for Kelley who had just played her immunity idol.

Brown v. Board of Education. Does not count. Roe v. Wade. Does not court. D.C. v Heller. Does not count. McDonald v. Chicago. Does not count. Obergefell v. Hodges. Does not count.

Only Brown is free from discrimination, only Roe can get an abortion, only Heller and McDonald et al can own guns, and only Obergefell can marry his same-sex partner. So sayeth the Law God™.

U.S. Supreme Court decisions are subject to being overturned by the legislature or the higher tpaine court of the imagination.

The lying jackass wrote, "History will always demonstrate that state nullification has never succeeded."

I gave him several recent examples where it has succeeded. He simply doubled down on his sourceless falsehood. (He claims that the U.S. Army invades any states that don't comply with any acts of the federal government.)

He also wrote that the "Common Law system of law" is the "system of law adopted by the United States." That sourceless assertion demonstrates appalling ignorance and/or dishonesty. The Supreme Court acknowledged in Erie Railroad v. Tompkins that "There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State, whether they be local in their nature or 'general,' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts." Not only is there no Common Law of the United States, there cannot be a Common Law of the United States. The Court observed in Wheaton v. Peters, that "there can be no common law of the United States."

As Justice Oliver Wendell Holmes, Jr. famously observed, "The common law is not a brooding omnipresence in the sky..." The Common Law of each of these United States exists on a state by state basis. As the Court observed in Swift v. Tyson, "The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally, but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else..."

Whatever the Common Law of a given state might have been when the state was formed, that system of law may evolve over time reflecting changes in that state's statutes and constitution. For example, Common Law marriage is no longer recognized by several states. Further, the states did not start with identical systems of Common Law. For example, Louisiana's early systems of law derived from the Napoleonic code, not British Common Law. Here in California, the Common Law, though heavily influenced by British Common Law, also incorporated principles from mining camp law and the Spanish Alcalde.

He wrote further, "The majority of federal laws are not written by the legislature. Administrative agencies write most of them." Perhaps he does not know the difference between a regulation and a law. Perhaps he is simply being dishonest. The Federal Register describes the difference. "Agencies 
get
 their
 authority 
to 
issue
 regulations
 from
 laws 
(statutes)
 enacted 
by
 Congress.

.. An 
 agency
 must
 not 
take
 action 
that
 goes 
beyond 
its
 statutory
 authority 
or
 violates 
the
 Constitution."
 Those regulations that are sometimes referred to as "administrative law" govern the internal practices of federal agencies.

However in this particular instance, paragraphs really don't make it any more interesting.

No trains, huh?

https://youtu.be/tInDH2FeXaM

I was noticed up of this exchange and decided to break a long silence.

The lying jackass wrote, "History will always demonstrate that state nullification has never succeeded."

I gave him several recent examples where it has succeeded. He simply doubled down on his sourceless falsehood. (He claims that the U.S. Army invades any states that don't comply with any acts of the federal government.) --- roscoe

Thanks for the reply.. --- It looks like Nolu is giving up on the issue, and is surrendering.

He wrote further, "The majority of federal laws are not written by the legislature. Administrative agencies write most of them." Perhaps he does not know the difference between a regulation and a law. Perhaps he is simply being dishonest. The Federal Register describes the difference. "Agencies 
get
 their
 authority 
to 
issue
 regulations
 from
 laws 
(statutes)
 enacted 
by
 Congress.

.. An 
 agency
 must
 not 
take
 action 
that
 goes 
beyond 
its
 statutory
 authority 
or
 violates 
 the
 Constitution."
 Those regulations that are sometimes referred to as "administrative law" govern the internal practices of federal agencies.

If nolu does decide to reply, perhaps he will try to debate, - specifically, the above issues, that both you, and I, have repeatedly posted.

But I'd bet not.

[Roscoe #36] He also wrote that the "Common Law system of law" is the "system of law adopted by the United States." That sourceless assertion demonstrates appalling ignorance and/or dishonesty. The Supreme Court acknowledged in Erie Railroad v. Tompkins that "There is no federal general common law.

[tpaine #38] Thanks for the reply.. --- It looks like Nolu is giving up on the issue, and is surrendering.

All Roscoe and tpaine have demonstrated is that two assholes cannot combine to make a brain. You two are just too dumb to know what you do not know. This is like watering two plants.

In writing that there is no general federal common law, the Court was not commenting on the Common Law system of law which is the system of law used by the Federal government and 49 states. Louisiana, a former French colony, has kept its French civil code system within the state, and has such things as parishes.

Some people just shouldn't read an excerpt from Erie which they are unable to understand, but all too ready to expound their misunderstanding. That there is no general federal common law does not convey that the Common Law system of law is not used by the United States orr the several states, or that there is no common law in the states or the United States.

Laurence H. Tribe, American Constitutional Law, 2nd Ed., 1988

At 158-159:

As Erie recognizes, in performing their common law functions, state courts do not truly look to a "general" law as contemplated by Swift, but rather persist "in their own opinions on questions of common law.¹⁵ As a result, by the time of Erie, federal courts following Swift had developed a body of common law which had no necessary connection with the common law of the various states.

__________

¹⁵ 304 U.S. at 74. The shift from Swift to Erie parallels that from the Lochner Era to the post-1937 jurisprudence. See Chapter 8, infra.

At 159:

Erie's admonition that "[t]here is no federal general common law"¹⁷ must not be read for more than it is worth. The holding of Erie is narrow though important: in following the "laws" of a state when sitting in diversity, federal courts must adhere to the decisional law of the state's judges as long as those precedents are consistent with federal constitutional and statutory provisions, and may not infer from the grant of diversity jurisdiction the power to override those prece­dents by imposing binding rules of federal common law.¹⁸ Together with Murdoch v. Memphis,¹⁹ which indicates that the Supreme Court will not review issues of state law, Erie defines what "state law" is by ensuring that the pronouncements of the highest courts of the states will be respected by all federal courts.²⁰

Erie, however, in no way bars federal courts from adopting rules of federal common law in specialized situations where they appear to be particularly warranted.²¹ Indeed, federal common law rules have been developed in a variety of areas where a consistent federal rule has been thought to be justified—as in interstate boundary disputes,²² cases raising questions of essentially international law,²³ cases involving the proprietary interests of the United States,²⁴ the property rights of Native Americans,²⁵ and others.²⁶ Despite occasional Supreme Court statements to the contrary,²⁷ there is no reason to conclude that the operation of federal common law is limited to these so-called "en­claves"—which are merely examples of situations raising important federal interests and calling for the development of judicial rules to cover gaps in the existing framework of federal constitutional and statutory law.

__________

¹⁷ 304 U.S. at 78.

¹⁸ See Field, supra note 13, at 915-27. The rule must also be followed in federal question cases involving state law issues, see id. at 912 n. 141.

¹⁹ 87 U.S. (20 Wall.) 590 (1874), discussed in § 3-24, infra.

²⁰ See Field, supra note 13, at 919-23 & nn. 180-82. In a similar manner, the eleventh amendment has been construed to protect the states' institutional sovereignty against any claim that the grants of diversity or federal question jurisdiction override traditional state sovereign immunity. See § 3-25, infra.

²¹ See Field, supra note 13, at 887-99, 950-53.

²² See, e.g., Vermont v. New York, 417 U.S. 270, 277 (1974).

²³ See, e.g., Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398, 421-27 (1964), discussed in § 3-13, note 44, supra.

²⁴ See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67 (1943).

²⁵ See, e.g., County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985).

²⁶ See Field, supra note 13, at 909-13.

²⁷ See, e.g., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981); cf. Field, supra note 13, at 911-12 n. 140.

The common law of England was explicitly adopted by each of the thirteen original states, either in their constitution or by statute. I document it elsewhere on LF and will do so again for the benefit of the truly dumb, stupid, ignorant, and those who simply choose to live in ignorance. All the documentation is included and hyperlinked.

Common Law and English Statutes Adopted in American Founding Era by nolu chan

Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, Vol. 1, pages D-4, D-5:

Common law. A body of law that de3veopes primarily through judicial decisions, rather than legislative enactments. The commmon law is not a fixed system but an ever-changing body of rules and principles articulated by judges and applied to changing needs and circumstances. See also: English Common Law.

- - -

English common law. A system of legal rules and principles recognized and developed by english judges prior to the colonization of America and accepted as a basic aspect of the American legal system.

http://legal-dictionary.thefreedictionary.com/Common+law+system

Common Law

The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.

A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action.

The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails.

Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system. Early common-law procedure was governed by a complex system of Pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as Code Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court.

Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.

Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements.

http://en.m.wikipedia.org

Law of the United States

The law of the United States comprises many levels[1] of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of acts of Congress,[2] treaties ratified by the Senate,[3] regulations promulgated by the executive branch,[4] and case law originating from the federal judiciary.[5] The United States Code is the official compilation and codification of general and permanent federal statutory law.

Federal law and treaties, so long as they are in accordance with the Constitution, preempt conflicting state and territorial laws in the 50 U.S. states and in the territories.[6] However, the scope of federal preemption is limited because the scope of federal power is not universal. In the dual-sovereign[7] system of American federalism (actually tripartite[8] because of the presence of Indian reservations), states are the plenary sovereigns, each with their own constitution, while the federal sovereign possesses only the limited supreme authority enumerated in the Constitution.[9] Indeed, states may grant their citizens broader rights than the federal Constitution as long as they do not infringe on any federal constitutional rights.[10][11] Thus, most U.S. law (especially the actual "living law" of contract, tort, property, criminal, and family law experienced by the majority of citizens on a day-to-day basis) consists primarily of state law, which can and does vary greatly from one state to the next.[12][13]

At both the federal and state levels, the law of the United States is largely derived from the common law system of English law, which was in force at the time of the Revolutionary War.[14][15] However, American law has diverged greatly from its English ancestor both in terms of substance and procedure,[16] and has incorporated a number of civil law innovations.

General overview

Sources of law

In the United States, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).[17]

Where Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid.[18]

Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court.[19] Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court.[20][21]

American common law

The United States and most Commonwealth countries are heirs to the common law legal tradition of English law.[22] Certain practices traditionally allowed under English common law were expressly outlawed by the Constitution, such as bills of attainder[23] and general search warrants.[24]

As common law courts, U.S. courts have inherited the principle of stare decisis.[25] American judges, like common law judges elsewhere, not only apply the law, they also make the law, to the extent that their decisions in the cases before them become precedent for decisions in future cases.[26]

The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[27] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[28] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,[28] such as the heightened duty of care traditionally imposed upon common carriers.[29]

Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.[30]

However, it is important to understand that despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law.[31] The reason is that although the courts of the various Commonwealth nations are often influenced by each other's rulings, American courts rarely follow post-Revolution Commonwealth rulings unless there is no American ruling on point, the facts and law at issue are nearly identical, and the reasoning is strongly persuasive.

Early on, American courts, even after the Revolution, often did cite contemporary English cases. This was because appellate decisions from many American courts were not regularly reported until the mid-19th century; lawyers and judges, as creatures of habit, used English legal materials to fill the gap.[32] But citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve the legal problems of the American people.[33] The number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.[34] By 1879 one of the delegates to the California constitutional convention was already complaining: "Now, when we require them to state the reasons for a decision, we do not mean they shall write a hundred pages of detail. We [do] not mean that they shall include the small cases, and impose on the country all this fine judicial literature, for the Lord knows we have got enough of that already."[35]

Today, in the words of Stanford law professor Lawrence Friedman: "American cases rarely cite foreign materials. Courts occasionally cite a British classic or two, a famous old case, or a nod to Blackstone; but current British law almost never gets any mention."[36] Foreign law has never been cited as binding precedent, but as a reflection of the shared values of Anglo-American civilization or even Western civilization in general.[37]

Levels of law

Federal law

Federal law originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating interstate commerce. The United States Code is the official compilation and codification of the general and permanent federal statutes. Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and codified into the Code of Federal Regulations. Regulations generally also carry the force of law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis.

During the 18th and 19th centuries, federal law traditionally focused on areas where there was an express grant of power to the federal government in the federal Constitution, like the military, money, foreign relations (especially international treaties), tariffs, intellectual property (specifically patents and copyrights), and mail. Since the start of the 20th century, broad interpretations of the Commerce and Spending Clauses of the Constitution have enabled federal law to expand into areas like aviation, telecommunications, railroads, pharmaceuticals, antitrust, and trademarks. In some areas, like aviation and railroads, the federal government has developed a comprehensive scheme that preempts virtually all state law, while in others, like family law, a relatively small number of federal statutes (generally covering interstate and international situations) interacts with a much larger body of state law. In areas like antitrust, trademark, and employment law, there are powerful laws at both the federal and state levels that coexist with each other. In a handful of areas like insurance, Congress has enacted laws expressly refusing to regulate them as long as the states have laws regulating them (see, e.g., the McCarran-Ferguson Act).

Statutes

Main article: United States Code Further information: United States Statutes at Large and List of United States federal legislation After the President signs a bill into law (or Congress enacts it over his veto), it is delivered to the Office of the Federal Register (OFR) of the National Archives and Records Administration (NARA) where it is assigned a law number, and prepared for publication as a slip law.[38] Public laws, but not private laws, are also given legal statutory citation by the OFR. At the end of each session of Congress, the slip laws are compiled into bound volumes called the United States Statutes at Large, and they are known as session laws. The Statutes at Large present a chronological arrangement of the laws in the exact order that they have been enacted.

Public laws are incorporated into the United States Code, which is a codification of all general and permanent laws of the United States. The main edition is published every six years by the Office of the Law Revision Counsel of the House of Representatives, and cumulative supplements are published annually.[39][40] The U.S. Code is arranged by subject matter, and it shows the present status of laws (with amendments already incorporated in the text) that have been amended on one or more occasions.

Regulations

Main article: Code of Federal Regulations Further information: Federal Register Congress often enacts statutes that grant broad rulemaking authority to federal agencies. Often, Congress is simply too gridlocked to draft detailed statutes that explain how the agency should react to every possible situation, or Congress believes the agency's technical specialists are best equipped to deal with particular fact situations as they arise. Therefore, federal agencies are authorized to promulgate regulations. Under the principle of Chevron deference, regulations normally carry the force of law as long as they are based on a reasonable interpretation of the relevant statutes.[41]

Regulations are adopted pursuant to the Administrative Procedure Act. Regulations are first proposed and published in the Federal Register (FR or Fed. Reg.) and subject to a public comment period. Eventually, after a period for public comment and revisions based on comments received, a final version is published in the Federal Register. The regulations are codified and incorporated into the Code of Federal Regulations (CFR) which is published once a year on a rolling schedule.

Besides regulations formally promulgated under the APA, federal agencies also frequently promulgate an enormous amount of forms, manuals, policy statements, letters, and rulings. These documents may be considered by a court as persuasive authority as to how a particular statute or regulation may be interpreted (known as Skidmore deference), but are not entitled to Chevron deference.

Common law, case law and precedent

Further information: United States Reports and National Reporter System Unlike the situation with the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate legal precedent like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts.[42] However, it is universally accepted that the Founding Fathers of the United States, by vesting "judicial power" into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, thereby vested in them the implied judicial power of common law courts to formulate persuasive precedent; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified.[43] Several legal scholars have argued that the federal judicial power to decide "cases or controversies" necessarily includes the power to decide the precedential effect of those cases and controversies.[44]

The difficult question is whether federal judicial power extends to formulating binding precedent through strict adherence to the rule of stare decisis. This is where the act of deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's rulings will thereby bind itself and lower courts in future cases (and therefore also impliedly binds all persons within the court's jurisdiction). Prior to a major change to federal court rules in 2007, about one-fifth of federal appellate cases were published and thereby became binding precedents, while the rest were unpublished and bound only the parties to each case.[43]

As federal judge Alex Kozinski has pointed out, binding precedent as we know it today simply did not exist at the time the Constitution was framed.[43] Judicial decisions were not consistently, accurately, and faithfully reported on both sides of the Atlantic (reporters often simply rewrote or failed to publish decisions which they disliked), and the United Kingdom lacked a coherent court hierarchy prior to the end of the 19th century.[43] Furthermore, English judges in the eighteenth century subscribed to now-obsolete natural law theories of law, by which law was believed to have an existence independent of what individual judges said. Judges saw themselves as merely declaring the law which had always theoretically existed, and not as making the law.[43] Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, in the way that scientists regularly reject each other's conclusions as incorrect statements of the laws of science.[43]

In turn, according to Kozinski's analysis, the contemporary rule of binding precedent became possible in the U.S. in the nineteenth century only after the creation of a clear court hierarchy (under the Judiciary Acts), and the beginning of regular verbatim publication of U.S. appellate decisions by West Publishing.[43] The rule gradually developed, case-by-case, as an extension of the judiciary's public policy of effective judicial administration (that is, in order to efficiently exercise the judicial power).[43] The rule of precedent is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, because in the absence of case law, it would be completely unworkable for every minor issue in every legal case to be briefed, argued, and decided from first principles (such as relevant statutes, constitutional provisions, and underlying public policies), which in turn would create hopeless inefficiency, instability, and unpredictability, and thereby undermine the rule of law.[45][46]

Here is a typical exposition of that public policy in a 2008 majority opinion signed by Associate Justice Stephen Breyer:

Justice Brandeis once observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co. [...] To overturn a decision settling one such matter simply because we might believe that decision is no longer "right" would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations.[47]

It is now sometimes possible, over time, for a line of precedents to drift from the express language of any underlying statutory or constitutional texts until the courts' decisions establish doctrines that were not considered by the texts' drafters. This trend has been strongly evident in federal substantive due process[48] and Commerce Clause decisions.[49] Originalists and political conservatives, such as Associate Justice Antonin Scalia have criticized this trend as anti-democratic.[50][51][52][53]

Under the doctrine of Erie Railroad Co. v. Tompkins (1938), there is no general federal common law. Although federal courts can create federal common law in the form of case law, such law must be linked one way or another to the interpretation of a particular federal constitutional provision, statute, or regulation (which in turn was enacted as part of the Constitution or after). Federal courts lack the plenary power possessed by state courts to simply make up law, which the latter are able to do in the absence of constitutional or statutory provisions replacing the common law. Only in a few narrow limited areas, like maritime law,[54] has the Constitution expressly authorized the continuation of English common law at the federal level (meaning that in those areas federal courts can continue to make law as they see fit, subject to the limitations of stare decisis).

The other major implication of the Erie doctrine is that federal courts cannot dictate the content of state law when there is no federal issue (and thus no federal supremacy issue) in a case.[55] When hearing claims under state law pursuant to diversity jurisdiction, federal trial courts must apply the statutory and decisional law of the state in which they sit, as if they were a court of that state,[56] even if they believe that the relevant state law is irrational or just bad public policy.[57] And under Erie, deference is one-way only: state courts are not bound by federal interpretations of state law.[58]

Although judicial interpretations of federal law from the federal district and intermediate appellate courts hold great persuasive weight, state courts are not bound to follow those interpretations.[59] There is only one federal court that binds all state courts as to the interpretation of federal law and the federal Constitution: the U.S. Supreme Court itself.[60]

State law

Main article: State law (United States) The fifty American states are separate sovereigns,[61] with their own state constitutions, state governments, and state courts. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances. They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of certiorari.[62] State laws have dramatically diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on.[63]

Most cases are litigated in state courts and involve claims and defenses under state laws.[64][65] In a 2012 report, the National Center for State Courts' Court Statistics Project found that state trial courts received 103.5 million newly filed cases in 2010, which consisted of 56.3 million traffic cases, 20.4 million criminal cases, 19.0 million civil cases, 5.9 million domestic relations cases, and 1.9 million juvenile cases.[66] In 2010, state appellate courts received 272,795 new cases.[67] By way of comparison, all federal district courts in 2010 together received only about 282,000 new civil cases, 77,000 new criminal cases, and 1.5 million bankruptcy cases, while federal appellate courts received 56,000 new cases.[68]

State legal systems

Local law

States have delegated lawmaking powers to thousands of agencies, townships, counties, cities, and special districts. And all the state constitutions, statutes and regulations (as well as all the ordinances and regulations promulgated by local entities) are subject to judicial interpretation like their federal counterparts.[69]

It is common for residents of major U.S. metropolitan areas to live under six or more layers of special districts as well as a town or city, and a county or township (in addition to the federal and state governments).[70] Thus, at any given time, the average American citizen is subject to the rules and regulations of several dozen different agencies at the federal, state, and local levels, depending upon one's current location and behavior.

Types of law

Procedural law

Criminal procedure

Civil procedure

Substantive law

Criminal law

Contract law

Tort law

Tort law generally covers any civil action between private parties arising from wrongful acts which amount to a breach of general obligations imposed by law and not by contract.

Tort law covers the entire imaginable spectrum of wrongs which humans can inflict upon each other, and of course, partially overlaps with wrongs also punishable by criminal law. Although the American Law Institute has attempted to standardize tort law through the development of several versions of the Restatement of Torts, many states have chosen to adopt only certain sections of the Restatements and to reject others. Thus, because of its immense size and diversity, American tort law cannot be easily summarized.

By the 1990s, the avalanche of American cases resulting from Greenman and Section 402A had become so complicated that another restatement was needed, which occurred with the 1997 publication of the Restatement (Third) of Torts: Products Liability.[79]

See also

Lists

References

Further reading

Colonial

Lawyers

Philosophy of law

External links

Notice anything wrong? Send Silk feedback

It appears that nolu chan disagrees with the above Wikipedia article about the laws of the United States..

Although, as usual, with his idiotic ploy of posting book length articles, (which I'll copy, just for fun) it's hard to tell.

Perhaps we can get him to post a reasonable length reply? (I'll hold my breath)

First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions...

Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states.

Play with him if you want. When I unblocked you, he took your place.

Play with him if you want. When I unblocked you, he took your place

I've never 'played' with any of you three clowns..

And your 'blocking' of my comments has only showed cowardice on the part of you and misterwhite, no one else.

[Roscoe #36] He also wrote that the "Common Law system of law" is the "system of law adopted by the United States." That sourceless assertion demonstrates appalling ignorance and/or dishonesty. The Supreme Court acknowledged in Erie Railroad v. Tompkins that "There is no federal general common law.

[tpaine #38] Thanks for the reply.. --- It looks like Nolu is giving up on the issue, and is surrendering.

[tpaine #40]

http://en.m.wikipedia.org

Law of the United States

The law of the United States comprises many levels[1] of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of acts of Congress,[2] treaties ratified by the Senate,[3] regulations promulgated by the executive branch,[4] and case law originating from the federal judiciary. [5] The United States Code is the official compilation and codification of general and permanent federal statutory law.

[...]

At both the federal and state levels, the law of the United States is largely derived from the common law system of English law, which was in force at the time of the Revolutionary War.[14][15] However, American law has diverged greatly from its English ancestor both in terms of substance and procedure,[16] and has incorporated a number of civil law innovations.

General overview

Sources of law

In the United States, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).[17]

[...]

Still proving that combining two assholes does not make a brain.

[Roscoe #22] Legislatures make law. The Court's opinion is no more a law than my opinion.

[nolu chan #26] nolu-- The majority of federal laws are not written by the legislature. Administrative agencies write most of them.

[tpaine #29] You're confusing administrative regulations with laws written 'in pursuance' of our Constitution.

Did you notice that your Wikipedia source states that U.S. law includes regulations promlgated by the executive branch, and case law originating from the federal judiciary? And that, at both the federal and state levels, the law of the United States is largely derived from the common law system of English law? Or that U.S. law is derived from administrative regulations, and the common law, which includes case law?

You two are idiots.

[Roscoe #22] Legislatures make law. The Court's opinion is no more a law than my opinion.

[tpaine #40] http://en.m.wikipedia.org Law of the United States

And you might as well learn what a law is, everywhere but in the tpaine Court of the Imagination.

Black's Law Dictionary, 6th Ed.

Law. That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. United States Fidelity and Guaranty Co. v. Guenther, 281 U.S. 34, 50 S.Ct. 165, 74 L.Ed. 683. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law. Law is a solemn expression of the will of the supreme power of the State. Calif.Civil Code, § 22.

The "law" of a state is to be found in its statutory and constitutional enactments, as interpreted by its courts, and, in absence of statute law, in rulings of its courts. Dauer's Estate v. Zabel, 9 Mich.App. 176, 156 N.W.2d 34, 37.

Word "law" generally contemplates both statutory and case law. Matter of Estate of Perlberg, Tenn.App., 694 S.W.2d 304, 308.

In old English jurisprudence, "law" is used to signify an oath, or the privilege of being sworn; as in the phrases "to wage one's law," "to lose one's law."

The term is also used in opposition to "fact." Thus questions of law are to be decided by the court, while it is the province of the jury to resolve questions of fact.

The word may mean or embrace: body of principles, standards and rules promulgated by government, State ex rel. Conway v. Superior Court within and for Greenlee County, 60 Ariz. 69, 131 P.2d 983, 986; command which obliges a person or persons and obliges generally to acts or forbearances of a class; constitution or constitutional provision. Wickham v. Grand River Dam Authority, 189 Okl. 540, 118 P.2d 640, 643; county ordinance, People v. Ziady, 8 Cal.2d 149, 64 P.2d 425, 430; distinct and complete act of positive law; doctrine or procedure of the common law, from which equity is a departure; enrolled bill attested by presiding officers of two branches of General Assembly, Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812, 815; general rule of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among human authorities is that which is paramount in a political society; grant by Legislature, City of Los Angeles v. Pacific Land Corporation, 41 Cal.App.2d 223, 106 P.2d 242, 244; administrative agency rules and regulations, Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 1200, 86 L.Ed. 1563; judicial decisions, judgments or decrees, West v. American Telephone & Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 183, 85 L.Ed. 139; law of the state; legislation by initiative method, Opinion of the Justices, 309 Mass. 676, 35 N.E.2d 676, 680; local rules of decision, National Fruit Product Co. v. Dwinell-Wright Co., D.C.Mass., 47 F.Supp. 499, 502; long-established local custom which has the force of law, Dubois v. Hepburn, 35 U.S. (10 Pet.) 1, 9 L.Ed. 325; Bush v. Brenner, D.C.Minn., 29 F.2d 844, 845; municipal ordinance; prescribed rules of action or conduct, U. S. Fidelity & Guaranty Co. v. Guenther, 281 U.S. 34, 50 S.Ct. 165, 166, 74 L.Ed. 683; proclamation of Governor, Williams v. State, 146 Tex.Cr.R. 430, 176 S.W.2d 177, 184; resolution passed by Legislature and approved by Governor, City of Bangor v. Inhabitants of Etna, 140 Me. 85, 34 A.2d 205, 208; revised statutes, W. R. McCullough Life Ins. Co. v. Armstrong, Tex.Civ.App., 158 S.W.2d 585, 586; rule of civil conduct commanding what is right and prohibiting what is wrong, City of Bangor v. Inhabitants of Etna, 140 Me. 85, 34 A.2d 205, 208; rule of civil conduct prescribed by the supreme power in a state, City of Bangor v. Inhabitants of Etna, 140 Me. 85, 34 A.2d 205, 208; rule of conduct prescribed by lawmaking power of state, Board of Education of Union Free School Dist. No. Six of Town of Greenburgh v. Town of Greenburgh, 277 N.Y. 193, 13 N.E.2d 768, 770; rules of court, State ex reI. Conway v. Superior Court within and for Greenlee County, 60 Ariz. 69, 131 P.2d 983, 986; rules of decision commonly accepted and acted upon by bar and inferior courts, West v. American Telephone & Telegraph Co., Ohio, 311 U.S. 223, 61 S.Ct. 179, 183, 85 L.Ed. 139; rules promulgated by government, State ex reI. Conway v. Superior Court within and for Greenlee County, 60 Ariz. 69, 131 P.2d 983, 986; science or system of principles or rules of human conduct, Secretary of the Treasury regulations, In re Deyo's Estate, 180 Misc. 32, 42 N.Y.S.2d 379, 386; statute laws as construed by highest courts of state, National City Bank v. National Sec. Co., C.C.A. Tenn., 58 F.2d 7, 9; statute or enactment of legislative body, State ex reI. McKittrick v. Missouri Public Service Commission, 252 Mo. 29, 175 S.W.2d 857, 861; United States law, U. S. v. Wagner, C.C.A.Cal., 93 F.2d 77, 79; War Department regulations, Standard Oil Co. of California v. Johnson, Cal., 316 U.S. 481, 62 S.Ct. 1168, 1169, 86 L.Ed. 1611.

A concurrent or joint resolution of legislature is not "a law", Koenig v. Flynn, 258 N.Y. 292, 179 N.E. 705, 707; Ward v. State, 176 Okl. 368, 56 P.2d 136, 137; a resolution of the house of representatives is not a "law", State ex reI. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162, 165; an unconstitutional statute is not a "law", Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So.2d 244, 248. With reference to its origin, "law" is derived either from judicial precedents, from legislation, or from custom.

[Roscoe #22] Legislatures make law. The Court's opinion is no more a law than my opinion.

[nolu chan #26] nolu-- The majority of federal laws are not written by the legislature. Administrative agencies write most of them.

[tpaine #29] You're confusing administrative regulations with laws written 'in pursuance' of our Constitution.

Damn, you two are Dumb and Dumb3r.

http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep488&id=491#491

Mistretta v. United States, 361 US 413 (1988) delegation of power

At 413:

JUSTICE SCALIA, dissenting.

While the products of the Sentencing Commission's labors have been given the modest name "Guidelines," see 28 U. S. C. § 994(a)(1) (1982 ed., Supp. IV); United States Sentencing Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws, prescribing the sentences criminal defendants are to receive. A judge who disregards them will be reversed, 18 U. S. C. § 3742 (1982 ed., Supp. IV). I dissent from today's decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws.

I

There is no doubt that the Sentencing Commission has established significant, legally binding prescriptions governing application of governmental power against private individuals—indeed, application of the ultimate governmental power, short of capital punishment.

Scalia at 416:

As the Court points out, we have invoked the doctrine of unconstitutional delegation to invalidate a law only twice in our history, over half a century ago. See Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935).

That is Justice Scalia arguing in dissent against the delegation of lawmaking power to an agency created by Congress. As Scalia argues, the agency created what it called "guidelines" which had the force and effect of laws, and any judge who desregarded them would be reversed. Further, Scalia observed that the agency was created to exercise no governmental power other than the making of laws.

Scalia's was the lone dissenting opinion to an 8-1 majority opinion of the Court which held, per the syllabus at 361,

Held: The Sentencing Guidelines are constitutional, since Congress neither (1) delegated excessive legislative power to the Commission nor (2) violated the separation-of-powers principle by placing the Commission in the Judicial Branch, by requiring federal judges to serve on the Commission and to share their authority with nonjudges, or by empowering the President to appoint Commission members and to remove them for cause. The Constitution's structural protections do not prohibit Congress from delegating to an expert body within the Judicial Branch the intricate task of formulating sentencing guidelines consistent with such significant statutory direction as is present here, nor from calling upon the accumulated wisdom and experience of the Judicial Branch in creating policy on a matter uniquely within the ken of judges. Pp. 371-412.

682 F. Supp. 1033, affirmed.

Otis H. Stephens, Jr. and John M. Sheb II, American Constitutional Law, 5th Ed., Vol. 1, 2012, p. 256:

The Permissiveness of the Modern Court

The Panama Refining Company and Schechter cases stand out as the only two instances in which the Supreme Court has invalidated federal statutes on grounds that Congress impermissibly delegated its lawmaking power to the executive branch. It must be recog­nized that these cases were part and parcel of a larger battle between the Court and the Roosevelt administration over the New Deal. Many of the Court's critics were inclined to see the decisions in Panama Refining Company and Schechter as political attacks on the New Deal, rather than neutral applications of constitutional principle. It is noteworthy that since the mid-1950s, the Court has not invoked the nondelegation doctrine to strike down any act of Congress, despite many sweeping delegations of power to the executive branch.

The permissiveness of the post-New Deal Supreme Court in this area was clearly manifested in Yakus v. United States (1944). Here, the Court upheld the Emergency Price Control Act of 1942, which established the Office of Price Administration and vested it with wide latitude to control prices and rents. The Court's decision in Yakus might be viewed as turning on the temporary nature of the act and the fact that the nation was at war. Subsequent decisions have made it clear, however, that Yakus was no fluke but rather represented a trend of judicial tolerance toward congressional delegations of power.

Michael R. Asimow, Administrative Law, Gilbert Law Summaries, 1992, p. 6:

Delegation doctrine today: [§19] Although the delegation doctrine appears to be a dead letter, there is some support on the Supreme Court for reviving it. Under some concurring and dissenting opinions, Congress must make the difficult and fundamental policy choices, rather than passing them on to the agencies. If these dissenting views become the majority on the Supreme Court, it is quite possible that the delegation doctrine will be revived. [See, e.g., Mistretta v. United States, 488 U.S. 361 (1989)—Scalia dissent....

The non-delegation doctrine remains dead, everywhere but in the tpaine Court of the Imagination.

Asimow at 12:

Criminal Sanctions: [§44] The legislature may also authorize an agency to enact regulations, the violation of which is a crime—as long as the prosecution for the violation is left to the courts. [United States v. Grimaud]

[...]

Agency may not imprison: Imprisonment for vioolatihng the regulation can be imposed only by the courts, and not by the agency. [Wong Wing v. United States, 163 U.S. 228 (1896)]

http://report.heritage.org/lm157

Paul J. Larkin, Jr. Regulatory Crimes and the Mistake of Law Defense, Legal Memorandum, The Heritage Foundation, No. 157, July 9, 2015, p. 3.

Congress’s decision to empower regulatory agen­cies to define crimes or to interpret provisions in reg­ulatory provisions the violation of which is a crime also added a new wrinkle to the evolving concept of public welfare offenses: crimes defined by regula­tions. The Supreme Court upheld that practice over a nondelegation claim in United States v. Grimaud,³⁶ ruling that Congress can empower the Secretary of Agriculture to promulgate regulations whose viola­tion is a federal offense.³⁷As a result, a strict liability crime can consist in the violation not merely of a fed­eral statute, a state law, or a municipal ordinance, but also of an administrative rule adopted by one or more regulatory agencies. That has considerably increased the size of the problem. As Stanford Law School Pro­fessor Lawrence Friedman colorfully put it:

There have always been regulatory crimes, from the colonial period onward…. But the vast expansion of the regulatory state in the twentieth century meant a vast expansion of regulatory crimes as well. Each statute on health and safety, on conservation, on finance, on environmental protection, carried with it some form of criminal sanction for violation…. Wholesale extinction may be going on in the animal kingdom, but it does not seem to be much of a problem among regulatory laws. These now exist in staggering numbers, at all levels. They are as grains of sand on the beach.³⁸

36. 220 U.S. 506 (1911).

37. Id. at 515–23.

38. Lawrence M. Friedman, Crime and Punishment in American History 282–83 (1993).

http://report.heritage.org/lm130

John G. Malcolm, Criminal Law and the Administrative State: The Problem with Criminal Regulations, Legal Memorandum, The Heritage Foundation, No. 130, August 6, 2014

At 1:

The relationship between criminal and administrative law dates to the turn of the 19th century, when Congress established early federal administrative agencies and a regulatory framework that included both civil and criminal penalties for failing to abide by the rules those agencies promulgated. However, as with federal criminal statutes, regulatory offenses that purport to flesh out and refine the details of those statutes have proliferated to the point that, literally, nobody knows how many federal criminal regulations exist today.¹

1. The proliferation of criminal laws and regulations is not a uniquely federal phenomenon. States also suffer from this problem. The Manhattan Institute reports that North Carolina, for example, added more than 34 new criminal offenses per year between 2008 and 2013, many of them regulatory crimes laid out in rules promulgated by bureaucratic agencies. See James R. Copeland and Isaac Gorodetski, Overcriminalizing the Old North State: A Primer and Possible Reforms for North Carolina, Manhattan Institute for Policy Research (May 2014), available at http://www.manhattan-institute.org/html/ib_28.htm#.U4yOzPldV8E.

At 2:

This theory of governance was highly influenced by English philosopher John Locke, who wrote in 1690, “The power of the Legislative being derived from the People by a positive voluntary Grant and Institution … the Legislative can have no Power to transfer their Authority of making Laws, and place it in other Hands.”

Chief Justice John Marshall, however, distinguished between promulgating rules on “important” subjects, which is strictly a legislative function, and delegating power to others “to fill up the details.” It is in this light that regulatory offenses purport to flesh out and refine the details of federal statutes that have been enacted by Congress. In fact, the Supreme Court of the United States has held that Congress can delegate to executive branch agencies the ability “to fill up the details” so long as Congress provides an “intelligible principle” in the underlying statute to guide those agencies and to which they must conform.

http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep23&id=9#9

Wayman v. Southard, 23 US 1, 42-43 (1825)

It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. Without going farther for examples, we will take that, the legality of which the counsel for the defendants admit. The 17th section of the Judiciary Act, and the 7th section of the additional act, empower the Courts respectively to regulate their practice. It certainly will not be contended, that this might not be done by Congress. The Courts, for example, may make rules, directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended, that these things might not be done by the legislature, without the intervention of the Courts; yet it is not alleged that the power may not be conferred on the judicial department.

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.

http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep276&id=440#440

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406-07, 409 (1928)

[276 U.S. 406-07] In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.

The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the Executive Branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations. United States v. Grimaud, 220 U. S. 506, 518; Union Bridge Co. v. United States, 204 U. S. 364; Buttfield v. Stranahan, 192 U. S. 470; In re Kollock, 165 U. S. 526; Oceanic Navigation Co. v. Stranahan, 214 U. S. 320.

[276 U.S. 409] The same principle that permits Congress to exercise its rate making power in interstate commerce, by declaring the rule which shall prevail in the legislative fixing of rates, and enables it to remit to a rate-making body created in accordance with its provisions the fixing of such rates, justifies a similar provision for the fixing of customs duties on imported merchandise. If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under Congressional authority.

http://www.wsj.com/articles/SB10001424052970203518404577094861497383678

Federal Police Ranks Swell to Enforce a Widening Array of Criminal Laws

By Louise Radnofsky, Gary Fields and John R. Emshwiller
Wall Street Journal
December 17, 2011

[excerpt]

It is hard to pin down precisely how many regulations could result in criminal penalties. Of dozens of federal agencies contacted by The Wall Street Journal, none could say how many of their regulations were connected to criminal statutes. Legal experts have put this number at anywhere between 10,000 and 300,000.

In 1970, the Code of Federal Regulations had 54,000 pages. Today it runs to 165,000 pages and takes 27 feet of shelf space when printed and bound.

Code of Federal Regulations with provision for criminal penalty (of tens of thousands of possible examples):

http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=42%3A1.0.1.1.2

42 C.F.R.

§2.4 Criminal penalty for violation.

Under 42 U.S.C. 290ee-3(f) and 42 U.S.C. 290dd-3(f), any person who violates any provision of those statutes or these regulations shall be fined not more than $500 in the case of a first offense, and not more than $5,000 in the case of each subsequent offense.

In the tpaine Court of the Imagination, Federal agencies cannot make any laws. In the real world, an estimated 10- to 300-thousand Federal regulations include a provision for criminal penalty in case of violation. The criminal penalties include prison time. It is not imaginary prison time.

As common law courts, U.S. courts have inherited the principle of stare decisis.[25]

There are precisely zero United States federal common law courts.

A common law court cannot be created by written law. All federal courts are created pursuant to the Constitution.

Thus, while the Constitution provides at Art. 1, Sec. 9, Cl. 2 "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," shortly after the Constitution was ratified and the Supreme Court was created by Congress, it was realized that the Writ of Habeas Corpus was a common law writ in English law, but as the U.S. Federal courts were not common law courts, they had no common law authority to issue any common law writ until such was given to them by the Congres.

This explains the necessity for Section 14 of the Judiciary Act of September 24, 1789 which granted authority to the courts of the United States to issue writs of scire facias, habeas corpus and all other writs not specially provided for by statute, which may be necessary for their jurisdictions.

Section 14 of the Judiciary Act of September 24, 1789 [1 Stat. 73, 81-82, (1789)]:

Sec. 14. And be it further enacted, That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus,(e) and all other writs not specialy provided for by statute, which may be necessary for the exercise of their respective jurisdiction, and agreeable to the principles and usages of law. And district courts, shall have power to grant writes of habeas corpus for the purpose of an inquiry into the cause of commitment.—Provided, That writes of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep28&id=213#213

Ex parte Tobias Watkins, 28 US 193, 201 (1830), MARSHALL, CJ

The power, however, to award writs of habeas corpus is conferred expressly on this court by the fourteenth section of the judicial act, and has been repeatedly exercised. ...

No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the constitution, as one which was well understood; and the judicial act authorises this court, and all the courts of the United States, and the judges thereof, to issue the writ "for the purpose of inquiring into the cause of commitment."

https://en.wikipedia.org/wiki/Common_law

2. Common law legal systems as opposed to civil law legal systems

Connotation 2 differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. Common law (connotation 2) systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law (connotation 2) courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean. By contrast, in civil law jurisdictions (the legal tradition that prevails, or is combined with common law, in Europe and most non-Islamic, non-common law countries), courts lack authority to act if there is no statute, and judicial precedent is given less interpretive weight (which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably), and scholarly literature is given more. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law.

As a rule of thumb, common law (connotation 2) systems trace their history to England, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law.

The United States decidedly uses the common law system.

loc.heinonline.org/loc/Page?handle=hein.usreports/usrep11&id=48#48

US v Hudson, 11 US 48, 49 (1812)

The powers of the general Government are made up of concessions from the several states — whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions — that power is to be exercised by Courts organized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the Courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it. All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer.

While the U.S. courts use the common law system of law, the courts themselves are not common law courts, and they derive no jurisdiction from the common law. Common law courts were not created by written law. All United States courts are explicitly created by written law. U.S. Federal courts have no jurisdiction to prosecute common law crimes.

The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions.[27] Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague.[28] Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form,[28] such as the heightened duty of care traditionally imposed upon common carriers.[29]

Second, a small number of important British statutes in effect at the time of the Revolution have been independently reenacted by U.S. states. Two examples that many lawyers will recognize are the Statute of Frauds (still widely known in the U.S. by that name) and the Statute of 13 Elizabeth (the ancestor of the Uniform Fraudulent Transfer Act). Such English statutes are still regularly cited in contemporary American cases interpreting their modern American descendants.[30]

As I documented all of the original states adopted such part of the English common law as was not repugnant to the Constitution, with but few stated exceptions. All but Louisiana have adopted the common law system of law as their state civil law.

Neither British statutes, nor any statutes anywhere, are part of common law. Common law is non-statutory law.

[Roscoe #36] He also wrote that the "Common Law system of law" is the "system of law adopted by the United States." That sourceless assertion demonstrates appalling ignorance and/or dishonesty. The Supreme Court acknowledged in Erie Railroad v. Tompkins that "There is no federal general common law.

[tpaine #38] Thanks for the reply.. --- It looks like Nolu is giving up on the issue, and is surrendering.

nolu --- As I documented all of the original states adopted such part of the English common law as was not repugnant to the Constitution, with but few stated exceptions.

So you agree that common law is only valid if it is "not repugnant to the Constitution"..

Glad you finally regained a bit of sanity..

Now if only you could control yourself about posting lengthy and irrelevant legal opinions, you might regain a bit of credibility here at LF..