U.S.

Constitution as a Source of Law

by Sophia

 WHAT'S COVERED

In this lesson, you will learn about the role and components of the Constitution as a primary source of
law in the United States. Specifically, this lesson will cover:

1. Primary and Secondary Sources of Law

In the United States, our laws primarily come from:

The U.S. Constitution and the state constitutions

Statutory law from Congress, the state legislatures, and local legislative bodies
Common law
Administrative rules and regulations
Executive orders and treaties

These are all primary sources of law. As is true in any democracy, U.S. law reflects the will of the people who
vote for representatives to make the law. In this way, U.S. law is also a reflection of public policy.
Secondary sources of law include:

Restatements of the law

Law review and journal articles
Uniform codes
Treatises

These sources are created by legal scholars rather than by a recognized, legitimate law-creating authority.
However, these sources are read by and often influence those who are in the position to create law.

IN CONTEXT

Members of the judiciary may consult a restatement of law or law-review articles when making
decisions. Likewise, state legislatures often adopt whole or parts of uniform acts, such as the
Uniform Commercial Code (UCC). When a body of secondary law is formally adopted by a legitimate
lawmaking authority, then it becomes primary law. In this example, adoption of the UCC by a state
legislature transforms the UCC from a secondary source of law (a model code) to a primary source of

© 2023 SOPHIA Learning, LLC. SOPHIA is a registered trademark of SOPHIA Learning, LLC. Page 1
 law in that state— namely, a statute.

 TERMS TO KNOW

Primary Sources of Law

Sources of law issued by courts, legislatures, government agencies, and other sources that create
law, including published court decisions, statutes, court rules, government agency decisions, and
the like.

Secondary Sources of Law

Sources of law that are written by those who discuss the law that comes from primary sources.

Public Policy
Generally accepted principles, mostly unwritten, on which society generally agrees. Occasionally,
a court will base a decision on public policy concerns rather than black letter law.

Restatements of the Law

Treatises on legal subject areas written by known legal scholars and published by the American
Law Institute, containing a summary of primary sources of law for the purpose of stating the law in
one volume. Although the restatements are a secondary source of law, they are so well-
respected that courts and legal scholars view them almost as if they were primary source of law.

Judiciary
The branch of government responsible for courts; the judges on a court.

Uniform Commercial Code (UCC)

A uniform act relating to commercial law that has, over time, been adopted in all 50 states, the
District of Columbia, and US territories. It is not a federal law, but its adoption throughout the US
makes interstate commercial transactions harmonious, although not all states have adopted all
parts of the UCC.

2. Power and Limitations of the Constitution

The U.S. Constitution created the structure of our federal government. Among other things, it sets forth the
three branches:

Legislative branch
Executive branch
Judicial branch

It provides organizational and procedural requirements, defines the boundaries of each branch’s jurisdiction,
and creates “checks” on each branch by the other branches.

 EXAMPLE In Article II, Section 2, the President is the Commander in Chief of the armed forces, but
he does not have the power to declare war. That duty falls to Congress.
The first ten amendments to the U.S. Constitution are known as the Bill of Rights. Some of the Founding
Fathers did not believe that a Bill of Rights was necessary because the power granted to the federal
government by the U.S. Constitution was expressly limited.

© 2023 SOPHIA Learning, LLC. SOPHIA is a registered trademark of SOPHIA Learning, LLC. Page 2
Any powers not expressly granted to the federal government by the U.S. Constitution are reserved to the
states. This means that if the U.S. Constitution does not state that one of the federal branches of government
has jurisdiction over a particular area, then that area falls to the states to regulate.

Despite the limited power granted to the federal government by the U.S. Constitution, as a condition of
ratification, many states insisted on a written Bill of Rights that preserved certain individual civil rights and
liberties. Today, business entities (such as corporations) that are treated as legal persons under the law enjoy
many (but not all) of these rights and liberties, just as if they were natural human beings.

 EXAMPLE Corporations have First Amendment rights to political speech under the Supreme
Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), but they are
not persons for purposes of voting.

 TERMS TO KNOW

Legislative Branch
In the U.S., the legislative branch is known as the Congress and is composed of the House of
Representatives, elected every 2 years, and the Senate, elected every 6 years (in staggered
terms so that 1/3 of the body is elected every 2 years). The purpose of Congress is to pass federal
laws.

Executive Branch
In the U.S., the executive branch is the US President, cabinet, and agencies, and staff. The
purpose of the executive branch is to carry out all of the laws of Congress.

Judicial Branch
In the U.S., the judicial branch of government is the federal court system. Its purpose is to enforce
the laws of Congress by addressing cases and controversies that come before it.

3. State Constitutions and Federalism

Each state also has its own constitution, and those constitutions serve essentially the same function for each
individual state government as the U.S. Constitution serves for the federal government. Specifically, they
establish the limits of government power, create protections for fundamental rights, and establish the
organization and duties of the different branches of government at the state level.

This dual system of government present in the United States is calledfederalism, which is a governance
structure whereby the federal government and state governments coexist through a shared power scheme.
State laws may not conflict with federal laws, including the U.S. Constitution. This is because the U.S.
Constitution is the supreme law of the land.

Sometimes, students of U.S. law will question why the law is not uniform throughout the U.S., suggesting that
this would be so much simpler than each state having different laws. This is a fair question, and the answer is
complicated, based on the country’s history of having fought the Revolutionary War against a tyrannical
monarch for eight years, from 1775-1783, and based on the continuing advantages of federalism.

Among the benefits of federalism are:

1. The lack of centralized power, which is regarded as a protection against the danger of tyranny.

© 2023 SOPHIA Learning, LLC. SOPHIA is a registered trademark of SOPHIA Learning, LLC. Page 3
 2. Increased citizen participation available when state and local governments have a strong role.
3. Increased efficiency since states are deemed better at solving local problems than a remote and out-of-
touch federal bureaucracy.
4. Freedom of choice to live where one’s beliefs and values are compatible with state laws.
5. The opportunity to try something out at the state level before implementing it nationwide.

The drawbacks of federalism are seen in disparities among states with respect to wealth, quality of education,
availability of social services, and the inability of the federal government to address these problems. Today, at
least three major governments thrive under a federalist system: Canada, the European Union, and the United
States.

 TERM TO KNOW

Federalism
The U.S. system of government whereby a separate federal sovereign, the federal government,
exists simultaneously with individual, sovereign states as one political system.

 SUMMARY

In this lesson, you learned that there are both primary and secondary sources of law. The U.S.
Constitution - the supreme law of the land - is a primary source of law that provides the framework for
the three branches of the federal government, the legislative, executive, and judicial branches, as well
as a template for the many state constitutions.

The Constitution has a great deal of power, but it also has several limitations. The Bill of Rights
comprised of the first 10 Amendments to the Constitution limits the powers of the federal and state
governments to infringe on fundamental civil rights and liberties of the people. All powers not
expressly granted to the federal government in the Constitution are reserved for the states. The
federalist system of government provides for limited centralized power in a federal government,
while states have additional and concurrent powers independent of federal control.

Best of luck in your learning!

Source: THIS TUTORIAL HAS BEEN ADAPTED FROM (1) "BUSINESS LAW AND THE LEGAL ENVIRONMENT"
VERSION 1.0 BY DON MAYER, DANIEL WARNER, GEORGE SIEDEL, AND JETHRO K. LIEBERMAN.
COPYRIGHT 2011. ISBN 978-1-4533-3050-0. (2) "THE LEGAL AND ETHICAL ENVIRONMENT OF BUSINESS"
VERSION 1.0 BY TERENCE LAU AND LISA JOHNSON. COPYRIGHT 2012. ISBN 978-1-4533-2750-0 (LICENSEE
PRODUCT: BUSINESS LAW), BOTH SOURCES REPRINTED WITH PERMISSION FROM FLATWORLD.

 TERMS TO KNOW

Executive Branch
In the U.S., the executive branch is the US President, cabinet, and agencies, and staff. The purpose of
the executive branch is to carry out all of the laws of Congress.

Federalism

© 2023 SOPHIA Learning, LLC. SOPHIA is a registered trademark of SOPHIA Learning, LLC. Page 4
 The U.S. system of government whereby a separate federal sovereign, the federal government, exists
simultaneously with individual, sovereign states as one political system.

Judicial Branch
In the U.S., the judicial branch of government is the federal court system. Its purpose is to enforce the
laws of Congress by addressing cases and controversies that come before it.

Judiciary
The branch of government responsible for courts; the judges on a court.

Legislative Branch
In the U.S., the legislative branch is known as the Congress and is composed of the House of
Representatives, elected every 2 years, and the Senate, elected every 6 years (in staggered terms so
that 1/3 of the body is elected every 2 years). The purpose of Congress is to pass federal laws.

Primary Sources of Law

Sources of law issued by courts, legislatures, government agencies, and other sources that create law,
including published court decisions, statutes, court rules, government agency decisions, and the like.

Public Policy
Generally accepted principles, mostly unwritten, on which society generally agrees. Occasionally, a court
will base a decision on public policy concerns rather than black letter law.

Restatements of the Law

Treatises on legal subject areas written by known legal scholars and published by the American Law
Institute, containing a summary of primary sources of law for the purpose of stating the law in one
volume. Although the restatements are a secondary source of law, they are so well-respected that
courts and legal scholars view them almost as if they were primary source of law.

Secondary Sources of Law

Sources of law that are written by those who discuss the law that comes from primary sources.

Uniform Commercial Code (UCC)

A uniform act relating to commercial law that has, over time, been adopted in all 50 states, the District of
Columbia, and US territories. It is not a federal law, but its adoption throughout the US makes interstate
commercial transactions harmonious, although not all states have adopted all parts of the UCC.

© 2023 SOPHIA Learning, LLC. SOPHIA is a registered trademark of SOPHIA Learning, LLC. Page 5