Codification & Constitutionalism: A GOVLEARN® Lesson
Law is an abstract concept. What defines the law? How do our governmental systems work together to decide what is illegal or legal, a right or a privilege, moral or immoral? In this blog post, I hope to define and analyze certain legal and governmental terms and concepts that have been unclear to many, and hopefully provide you with a more complete view of the United States legal system.
What is “judicial precedent”?
When a court makes a decision, it establishes a new judicial precedent. This establishes a principle or rule that must be followed by future court decisions. Judicial precedent does not affect congressional or presidential decisions, only the courts. If the Supreme Court determines a previous court decision unconstitutional, this judicial precedent can be undone. This can only be done by the Supreme Court. However, precedent tends to be restricted to higher courts and not smaller, local courts. Those courts do not publish or write opinions, therefore, they cannot set precedent.
What is “codification”?
Codification is the process of integrating a judicial ruling into legal rules and codes, and transforming judicial precedent into “the law”. For example, if the Supreme Court chooses to outlaw jaywalking, Congress could pass a law codifying this ruling, and banning jaywalking nationwide. Additionally, this new law would supersede whatever decision the Supreme Court makes, so if Congress disagrees with a Supreme Court decision, they could craft a law in opposition to this, protecting jaywalking. However, the Supreme Court could also deem this new law unconstitutional. A law supersedes a ruling, but the Supreme Court has the power to overturn a law–Congress does not have the power to overturn a ruling. Feel free to replace jaywalking with any potential law or issue of your choosing, to see how other examples might work.
What is the highest form of the law?
In the United States, the law of the land is the Constitution of the United States, and its 27 amendments (changes/additions). Judicial precedent is law for courts to follow in future cases, but it is not “law” for private citizens to follow or abide by. These laws are determined by federal and state legislatures. However, as previously stated, both Congress and the Supreme Court have the power to support or fight against the other’s decisions. The balance of power in the federal government makes sure that all three branches (executive/legislative/judicial) have equal power, and the ability to check each other’s power.