sign in sign up
<<
Home , Sources of law, Statutory law

Sources of

n chapter 1, you learned that consist of legal responsibilities and rights. Where do laws come from? Who makes these laws? Can Ithey ever be changed? There are duties and rights associated with being part of a family, a social club, a football team, and similarly, a government. In some types of government, only one or a few persons may make the laws. In a representative democracy such as the United States, the citizens decide what the rules or laws will be. “We the people” elect represen- tatives with the power to make and enforce laws at local, state, and national levels. In the United States, the power to make and enforce laws is shared by the three branches of government. Elected representatives with the power to make laws form the legislative branch of government. The branch is responsible for seeing that laws are carried out. The judicial branch has the power to interpret laws (that is, to say what they mean and how they should be enforced). In the state and federal government, these three branches are very distinct and separate. A system of checks and balances prevents any branch from having too much power. But, as you can see in figure 2-1, the is not always as distinct at the local level. Notice code that county commissioners have the responsibilities of both the execu- elastic clause tive and legislative branches. The U.S. and state provide the framework for laws in ordinance Georgia. There are other , however. are made powers by , which are composed of elected lawmakers. Adminis- trative law is determined by agencies. Finally, the determine

LAWstatutory TALK law .

10 FOUNDATIONS FIGURE 2-1 Branches and Levels of Government Branches of Government Levels of Government Legislative Executive Judicial

Federal U.S. Congress: President Federal System Senate and House of (diagram, p. 27) Representatives State (Georgia) Georgia General Assembly: Governor Georgia Court System Senate and House of (diagram, p. 24) Representatives Local (County/City) County Commissioner(s)/ Board of County City Courts City Council Commissioners/Mayor

SOURCES OF LAW mized under the state . Under the Source 1—Constitutional Laws state constitution, however, those rights may be expanded. The primary law of American society is found Both the Georgia and U.S. constitutions de- in its basic documents—the Constitution of the termine the structure of their respective govern- United States (or federal Constitution) and the ments. Each establishes a legislative, executive, various state constitutions. These constitutions and judicial branch. Each constitution sets forth form the legal framework of our society. In these a process for enacting laws. Each also gives the documents, we, the people, have set forth our agreements as to how we should be governed (see figure 2-2). Each constitution clearly states FIGURE 2-2 that its authority comes from the people. The U.S. Constitution is more than 200 Preambles to Constitutions years old. By comparison, the constitution that E THE PEOPLE of the United States, in Order is used in Georgia is relatively new and has seen Wto form a more perfect Union, establish , many changes. There have been eight revisions insure domestic Tranquility, provide for the common to Georgia’s first constitution, which was written , promote the general Welfare, and secure the in 1777. The various Georgia constitutions were Blessings of Liberty to ourselves and our Posterity, do found to be either too vague or too detailed, or ordain and establish this Constitution for the United they had too many amendments. In 1976, the States of America. General Assembly established a committee to Preamble, Constitution of the United States revise the Georgia Constitution. On November To perpetuate the principles of free government, insure 2, 1982, 72.9 percent of Georgia citizens voting justice to all, preserve , promote the interest and on the issue approved the state’s 10th constitu- happiness of the citizen and of the family, and transmit tion. It went into effect in July 1983. to posterity the enjoyment of liberty, we the people of The Georgia Constitution is modeled after Georgia, relying upon the protection and guidance of the federal Constitution. The federal Constitu- Almighty God, do ordain and establish this Constitution. tion is regarded as “the highest law in the land.” Preamble, Constitution of the State of Georgia Therefore, the rights of citizens cannot be mini-

Sources of Law 11 government certain powers to act. Each sets lim- constitution says the government can do. its on what the government may do and sets forth Both constitutions apply to a state law. minimum basic rights of the people. To see how this works, let’s test four laws. Both the federal and Georgia constitutions Two are passed by Congress, two by the Georgia contain Bills of Rights. The first 10 amend- General Assembly. ments to the U.S. Constitution make up the Bill of Rights; the Georgia Constitution has 28 CASE OF THE FOUR LAWS amendments in its Bill of Rights. The amend- 1. Congress passes a law that requires all ments deal with the right to bear arms, the right children to attend public schools. to engage in free speech, freedom of religion, freedom from unlawful search and seizure, the 2. Congress passes a law creating a new right to , and other rights. branch of the armed forces for defense of space. The law says only native-born Ameri- Source 2—Statutory Laws cans can be in this new branch. Laws enacted by state and federal legislatures are 3. The Georgia General Assembly passes called statutes. Collectively, they are referred to a law making driving fast on state roads a as . . To be a valid law, a must meet three conditions: 4. The Georgia General Assembly passes a law creating a new municipality (city). 1. Procedures set forth in the U.S. Consti- tution (for federal laws) or the Georgia Assume that all four laws meet the first condi- Constitution (for state laws) must be tion. In other words, the first two laws were ad- followed in order for a statute to be ad- opted in accordance with methods set forth in opted. the U.S. Constitution. The last two were ad- 2. The constitution gives the government opted in accordance with methods set forth in authority to enact law on a particular sub- the Georgia Constitution. Figure 2-3 is a very ject. Such authority must be stated in the simple diagram of how laws are passed in Geor- U.S. Constitution for federal laws. For gia. The procedures for enacting federal statutes state laws, the power of the government are similar. must be clear in both the U.S. Constitu- tion and the Georgia Constitution. What Laws Can Congress Make? 3. The statute must not exceed the con- The U.S. Constitution gives Congress power to stitutional limits on the power of the enact laws on specific subjects, including powers government to act. That is, a statute is to tax, regulate interstate commerce, establish unconstitutional and can be declared un- post offices, declare war, and raise and support enforceable if it goes beyond what the armed forces. Furthermore, to carry out all its

12 FOUNDATIONS FIGURE 2-3 How a Bill Becomes a Law in the Georgia General Assembly The Committee considers The House considers The Bill is . . . the bill and . . . the bill and . . . • introduced in either the • recommends, • debates bill Senate or House • recommends with changes, • may amend bill • numbered • rejects, or if • votes on bill if recommended passed • sent to Committee • holds bill

Bill goes to the other house

The Other House . . . The bill becomes a statute . . . • puts bill through a similar • if governor signs, or does not process as the fi rst house disapprove (veto) within 40 days • passes the bill unchanged* after end of legislative session The bill goes to the governor • if General Assembly overrides veto with a two-thirds majority vote

*Both houses must agree on a bill to complete passage. If they can’t agree, a Conference Committee may be set up with representa- tives of both houses to resolve disagreements.

powers as outlined in the Constitution, Congress Although Congress cannot force states to has the right to pass other laws considered “nec- adopt certain laws, it can establish conditions or essary and proper.” This “elastic clause” in the incentives that make it in a state’s best interest to Constitution gives Congress the power to enact do so. For example, Congress wanted to reduce laws on many more subjects than appear to be the deaths and injuries caused by drunk driving specifi cally covered by the Constitution. How- by making 21 the legal age for drinking alcoholic ever, Congress lacks authority in other areas. It beverages. It passed a law that gave the states two is not authorized to—and, therefore, it cannot— years to set a drinking age of 21 or else the states establish schools in local areas. It cannot adopt could lose federal highway funds. Georgia was laws defi ning within the boundaries of a one of the states that changed its drinking age particular state. law. If it had not, it could have lost $15 million in The lawmaking power of Congress has been funds in 1986 alone. By making this requirement extended, however, because the federal courts the condition of funding, Congress in essence set drinking age limits in the states. have broadly interpreted the powers given to Congress. For example, Congress has the power CASE OF THE FOUR LAWS, continued to regulate commerce among the states and with foreign nations. The U.S. ’s broad Has Congress been given the power to pass interpretation of “interstate commerce” pro- laws 1 and 2? vided the constitutional basis for laws requiring 1. The Constitution does not give Congress businesses engaged in interstate commerce not the power to pass laws regarding public to discriminate on the basis of color, race, or education provided by the states. Law 1 national origin. would not be valid.

Sources of Law 13 2. Congress has the power to declare war CASE OF THE FOUR LAWS, concluded and to maintain an army and navy. These 1. The federal law requiring attendance in powers have been interpreted to extend school has already been declared invalid. to other armed forces like the air force. Undoubtedly, Congress would have the 2. The fact that only native-born Ameri- power to create this new defense-of-space cans can participate in the defense-of-space branch. branch makes this law invalid. It discrimi- nates against Americans who are not native What Laws Can the General Assembly Make? born. The law violates the constitutional right to “equal protection under the law.” The U.S. Constitution gives to the states all powers not specifically delegated to the federal 3. One aspect of due process of law is that government or prohibited by the U.S. Constitu- laws must not be so vague that enforcing tion. The Georgia Constitution gives the state them fairly would be impossible. What does government general powers, including “police “driving fast” mean? One person might say powers.” The General Assembly therefore has 50 miles per hour. Another might say 70 the power to act to ensure public health and safe- miles per hour. The law does not state what ty and to maintain the well-being of members is meant. Because it is vague, this law would of society. violate due process of law. It would be in- Defined in general terms, police powers un- valid. derlie the authority behind many state and lo- 4. This law does not exceed the limits on cal government actions and laws. These actions the power of state government. It would range from setting up schools and colleges to be valid. maintaining police forces. Other examples in- clude providing programs for people who can- not care for themselves and regulating service City and County Ordinances providers like physicians or taxi drivers. Police The relationship between local governments and powers also are the authority for some restric- the state differs from that between a state and the tions on constitutional rights. national government. The federal government In the Case of the Four Laws, the Georgia was formed by a union of the states. Local gov- General Assembly does have the power to pass ernments (like cities and counties) are creations laws 3 and 4. Its power to pass laws on these mat- of the state. ters comes from the state constitution. Counties are political subdivisions of the state. The Georgia Constitution gives the gov- Limits on Lawmaking Powers erning body of each county power to adopt laws To be valid, a statute must not exceed the limits “relating to its , affairs, and local gov- on the government’s power. The freedoms given ernment for which no provision has been made by the Constitution are such limits. American by general law and which is not inconsistent with governments must have strong reasons to re- the Constitution.” strict freedoms such as speech or religion. The The state constitution also allows for creat- requirement under the law not to have life, lib- ing “municipal ,” which are cities. erty, or property taken without due process of Cities are created by written documents called law is also a limit, as is the need to provide equal . Like any law, charters must be passed protection under the law. by the General Assembly. The becomes Will the laws in the Case of the Four Laws the city’s “constitution.” It sets forth the city gov- meet the test of validity? ernment’s powers and limits. It also gives proce-

14 FOUNDATIONS FIGURE 2-4 Code of Georgia. Local ordinances are also codi- fied. They may be organized by subject matter Local Government Services into separate publications such as the building The Georgia Constitution authorizes cities and counties code, zoning ordinance, and health and sanita- to enact laws to provide services such as tion code. • fire and police protection, • garbage collection and disposal, • street and road construction and maintenance, O nly the Facts • parks and recreational areas, 1. How many constitutions has the • public transportation, and United States had? How many has • libraries. Georgia had? 2. What are the conditions of a valid law? 3. How has the power of Congress to make laws been extended? dures for electing officials, collecting taxes, and 4. Are the following statements true or enacting city laws. false? If false, correct the statement. City and county laws are called ordinances. Georgia’s laws and constitution are quite specific a. Police powers are used by state about the kind of ordinances counties and cities can and local governments only to catch criminals. and cannot enact. For example, neither cities nor counties may pass laws establishing crimes and their b. A code is an organization of a gov- ernment’s laws by subject matter. punishments. Such authority is generally reserved for the state . Figure 2-4 lists the kinds c. A Georgia county’s “constitution” is of laws that cities and counties may pass. its charter. In general, the process for enacting ordi- nances is simpler than that for enacting federal T h i n k A b o u t and state laws. One reason is that in cities and 1. “It is good that the U.S. Constitution counties laws usually have to be voted on by only contains the elastic clause that ex- one body of lawmakers. Also, local lawmaking pands lawmaking power.” Explain why bodies are usually smaller. For example, Georgia you agree or disagree. county commissions range from 1 to 11 mem- 2. On the basis of what you know, does bers. Compare that with 56 members of Georgia’s Congress or the General Assem- Senate and 180 of its House of Representatives. bly seem to have more limits on its Compare those numbers with the 100-member power? Why? U.S. Senate and 435-member House.

Codes For the most part, laws at all levels of government Source 3—Administrative Laws are “codified”; that is, they are organized by subject A third source of law consists of the rules and matter in books or electronically. This organiza- of government agencies. For the tion makes it easy to find the laws on any particu- most part, these agencies are part of the execu- lar topic because they are grouped together. tive branch of government. Their laws are called Statutes adopted by the Congress are set administrative law. The rules and regulations of forth in the . Statutes of the government agencies affect issues such as how General Assembly are organized in the Official water is purified and how schools are operated.

Sources of Law 15 FIGURE 2-5 FIGURE 2-6 Major Georgia State Agencies Hierarchy of Laws

• Department of Administrative Services U.S. Constitution • Department of Agriculture • Department of Community Affairs U.S. Statutes • Department of State Constitution* • Department of Education U.S. Agency • Department of Human Resources Rules and Regulations • Department of Labor State Statutes • Department of Natural Resources • Department of Public Safety • Department of Revenue State Agency • Department of Transportation Rules and Regulations* *Must not contradict or super- cede provisions of the federal constitution, federal statutes, or Local Ordinances Each agency gets its rule-making power from federal regulations. the law that established it. For example, federal law establishing the U.S. Internal Revenue Ser- vice (IRS) gives it responsibility for collecting federal income tax. The IRS is given power to for a friend on the sidewalk for two hours is loi- establish forms, rules, and regulations that every tering, the has added new meaning to the citizen must follow. law, or “interpreted” it. In the same way, state laws may establish and give rule-making power to state agencies. Figure Tracking Down Sources 2-5 lists some of Georgia’s major state agencies. As you can see, there are many sources of law. Local government ordinances may also establish There are the federal and state constitutions. agencies, such as police or recreation depart- There are federal, state, and local lawmaking ments. These local agencies are also given rule- bodies. There are federal, state, and local gov- making powers that cannot be exceeded. Just as ernment agencies. Then there are the laws made laws passed by Congress or the General Assem- by courts. bly must be consistent with the authority giv- There is a hierarchy (ranking) of laws (see en them by the U.S. and Georgia constitutions, figure 2-6), with the U.S. Constitution at the top. agency rules and regulations must be consistent Lower-ranking laws must conform to those above with the authority given the agency. them. Relationships between laws are not always obvious, however. For instance, rules made by Source 4—Case Law state agencies may be limited not just by state The final source of law, case law, is the result of law but also by the rules of federal agencies that the interpretation of statutes. The authority to provide funding. For example, school lunch pro- interpret statutes rests with the judicial branch. grams are federally funded, as are programs for (Chapter 3 clarifies the authority of the court teacher training, student loans, and development system.) For example, a state may enact a law of classroom materials. Such program funding that makes loitering a crime, but the law may not has increased the influence of federal laws and clearly define what loitering is. If a judge subse- agencies on education. (Figure 2-7 lists some of quently decides that a person who was waiting the rules regulating schools.)

16 FOUNDATIONS monplace. Finally, in 1933, the amendment was repealed. In effect, so many Americans wanted O nly the Facts to drink alcoholic beverages that the law was 1. Name three sources of law. unenforceable. 2. What are the legal sources of state Point 2: People’s values and ways of life agency laws? change. To work, laws must be able to accom- modate such changes. It is easy to see how de- T h i n k A b o u t velopments in technology affect laws. The coming of the automobile resulted in a network of paved 1. Give a few reasons why the legislative roads. It also resulted in new laws and regula- branch of government delegates some tions. Existing laws regarding horse traffic be- of its rule-making power to agencies came useless. New ones regulating drivers, use in the executive branch. of roads, sale of cars, and other laws were needed and enacted. Slavery is perhaps the best example of the ef- CHANGING LAWS fect of changing values on laws within our coun- try. In the early years of this nation, the holding Laws are made by people. Constitutions—and of other human beings as slaves was an accepted the government—rest on the power given by the practice. Laws supported the holding of slaves. people. There are three points to bear in mind Then values changed. More and more people about how ordinary people can affect laws. felt that slavery was wrong. In 1863, the Eman- Point 1: To work, laws must reflect the values cipation Proclamation heralded the end of the of most of the people they govern. To illustrate, right to own slaves. The Thirteenth Amend- consider what happened in the United States ment, passed in 1865, prohibited slavery. It is some years ago. A number of people strongly easy to understand why laws upholding slavery believed that drinking alcoholic beverages was would not be acceptable in today’s America. wrong. As a result of their efforts, an amendment Can you think of any recent laws that reflect to the U.S. Constitution forbidding the sale of changes in attitudes and values? One example alcoholic beverages was passed in 1920. How- would be the laws protecting the environment. ever, it proved very difficult to enforce this law. People have become increasingly aware of the Many Americans wanted to be able to buy alco- dangers of polluting the air and water. They holic beverages. Violations of the law were com- understand the effects of creating unmanage-

FIGURE 2-7 Who Makes School Laws? Can you guess the sources of the rules and regulations listed below? Does their authority come from the federal or state constitutions? statutes? agency rules? a. Certification of teachers g. Regulations on free lunches b. Number of days in school year h. Smoking regulations c. Number of course hours needed to graduate i. Days of attendance necessary to pass from high school j. Prohibition against talking out of turn in class d. Assignment of students to schools k. Penalties for being tardy e. Racial integration of schools l. Calendar dates of each school year f. Dress requirements such as shoes, no halters m. Pupil ages for required school attendance

Sources of Law 17 able amounts of garbage. They have also come The methods for amending the constitutions to realize that the natural heritage of animals, of Georgia and the United States are shown in plants, and scenic and wilderness areas could be figure 2-8. destroyed if they are not protected. As you can see, it is easier to change the In general, laws are slow to reflect changes Georgia Constitution. The U.S. Constitution in the values and customs of society. However, has not been amended easily. There have been there are examples of how laws reflect rapid- only 26 amendments in its history. One of these, ly changing values, such as those you may read prohibiting the sale of alcoholic beverages, was about in the media concerning technology. repealed. Point 3: In a democracy, people like you and If it is so difficult to change the U.S. Consti- me can work to get laws changed or added. One tution, how has it accommodated more than 200 way we do this is by lobbying our elected rep- years of change? In effect, it has done so because resentatives. its provisions have been interpreted and reinter- preted by court decisions. (This point is further discussed in chapter 3.) In any government, it is important that laws be adaptable to change. At the same time, a Statutes and Ordinances framework of principles is necessary to give Statutes (and ordinances) are changed in the laws consistency and continuity. Like a house, same way they are made (see figure 2-3). They laws must have a foundation. The U.S. Consti- can be amended or repealed (that is, canceled) tution serves as the framework for federal law, by new laws. and state constitutions underlie state law. In The founders of our government intended general, constitutions cannot easily be changed. for statutory law to be the most responsive to However, it is possible to make changes to the will of the people and to changes. That is constitutions through the use of amendments. why lawmakers at each level of government are

FIGURE 2-8 Amending Constitutions 1 2 3 GEORGIA Amendment is proposed Amendment is approved by Amendment is approved by in the General Assembly. a two-thirds vote in House majority of voters at next and Senate. general election. UNITED STATES Amendment may be pro- Amendment is approved by Amendment must be ap- posed by Congress a two-thirds vote in House proved by three-fourths of or and Senate. state legislatures or three- fourths of state conventions Two-thirds of state legislatures called to vote on it. may ask Congress to call a Constitutional to (State conventions have only propose an amendment. been called once.) (This procedure has never been used.)

18 FOUNDATIONS elected and not appointed. Elected representa- If no action resulted from a protest to the tives are expected to want to know the opinions state board, the principal could consult a law- of those they represent. How else can they repre- yer about court action. The court would not be sent them? Indeed, if they are not sensitive to the concerned about whether the principal or others will of the people, they may not be reelected. liked the . The court would consider How can you let your senator, councilmember, whether the regulation was valid. What if the reg- and other representatives know how you feel ulation discriminated against certain teachers? about the law? You can phone, write, or visit The court might then find it invalid. them. You can join with others who share your feelings to work for or against passage of a par- ticular law. When election time comes around, you can campaign, and—once you turn 18 and O nly the Facts are eligible to vote—you can vote for candidates 1. How do the procedures for amending who support your views. the U.S. and Georgia constitutions differ? 2. Why might statutory law be consid- Administrative Law ered more responsive than administra- Within the powers and limits set by constitutions tive law to people’s opinions? and statutory laws, agencies can set up rules as needed. They can also adapt them as situations T h i n k A b o u t change. 1. What happens when governments However, many people complain that agency pass laws that go against the will of laws are not very responsive to public opinion or many people? How do governments the needs of those they regulate. In fact, what can respond to resistance? a person do to get an agency rule changed? Some agencies have procedures that allow 2. To illustrate how changes in tech- public review of their regulations before they are nology have impacted lawmaking, list passed. Both the federal Environmental Protec- a few laws that regulate the use of tion Agency and state Environmental Protection technology. Division have such review procedures. Before 3. “The U.S. Constitution should be either adopts a regulation, it publishes the text amended to allow citizens to vote to allow interested citizens to comment on the directly on amendments.” Prepare argu- regulations. The agency may then make adjust- ments for or against the statement. ments as needed. What can a single person do to change an existing agency rule? Think about the following SUMMING UP situation: A school principal objects to a rule of the state board of education requiring all new Where do laws come from? This chapter has teachers to take extra courses for maintaining looked at how we, the people, are the basic source their certification. The principal feels it is unfair of authority for all our laws. The national and to the new teachers. What can she do? state constitutions, which form the framework She could disobey the rule. However, this of our laws, have been discussed, as have statute response would probably only lead to trouble making and ordinance making. Agencies are yet for her and others. She could present her argu- another source of law. The one source of law that ments against the requirement to the board. If has not yet been examined is the law established others felt the same way, they could join her in by courts within the judicial system. It is the sub- protesting the rule. ject of chapter 3.

Sources of Law 19