E. Sources of the Law, continued

2. Constitutions

The founding document of our government and our legal system is the United States Constitution. The U.S. Constitution declares itself to be "the Supreme Law of the Land."  Article VI, clause 2 states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding (emphasis added)."

There is no higher man-made law in the United States. Even the United States Supreme Court (which is the highest court in this country) must abide by the articles and amendments of the U.S. Constitution. Any law created by Congress or any other legislative or administrative entity, the executive orders issued by the President, and regulations promulgated by administrative agencies must be able to withstand constitutional review.

Keep in mind that all fifty states have established constitutions, and they are also a significant source of state law. (The U.S. Constitution constitutes federal law, but since it is the supreme law of the land, even state constitutions must not be in direct conflict with it. But we will discuss this in more detail when we get to preemption.) Most states have modeled their state constitutions on the U.S. Constitution; however, there can be significant differences. For example, the U.S. Constitution does not include an express (actually stated) right to privacy (although one has been implied through judicial interpretation).

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution (emphasis in original)." Roe v. Wade, 410 U.S. 113,152(1973).

Some states, for example, Hawaii, have included in their state constitutions an express right of privacy. Article I, § 7 of the Hawaii Constitution states: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted (emphasis added)."

When we say that constitutions are a source of law, we are really speaking in two senses. First, the U.S. Constitution (or any state constitution) is a source of law because it contains articles and amendments that give us rights and establish prohibitions.

For example, the Sixth Amendment of the U.S. Constitution sets out our criminal trial rights, such as the right to a speedy and public trial. The Sixth Amendment of the U.S. Constitution states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence [sic]." And the Eighth Amendment prohibits cruel and unusual punishment. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." We can assert our claims to these rights through legal process.

Second, the U.S. Constitution becomes a source of law in the sense that a body of law (or jurisprudence) has arisen to deal with the issue of whether laws are or are not constitutional; which we refer to as constitutional law.