Constitutions & Statutes

• Author: Beau Steenken, Tina M. Brooks
• Pages: 24-54

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Chapter 2

Constitutions & Statutes

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. – John

Marshall, Marbury v. Madison, 5 U.S. 137, 180 (1803)

All those courts before mentioned are in use, and

exercised as Law at this day, concerning the Sheriffes

Law dayes and Leets, and the offices of High

Constables, pettie-Constables, and Tithingmen;

howbeit, with some further additions by Statute

laws… - Francis Bacon, The Elements of the C ommon

Laws of England

2.1 Learning Objectives for Chapter 2

In working through this chapter, students should strive to be able to:

• Compare the different stages in a statute’s life-cycle.

• Evaluate the properties of a code:

o code organization

o code annotations

• Use finding aids to find specific statutes in print:

o by citation

o by topic using the index

o by popular name

• Recognize the various types of document comprising a statute’s

legislative history and evaluate how useful each type would be for

determining legislative intent.

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2.2 Constitutions & Statutes

As discussed in Chapter 1, constitutions act as the highest source of law in

the United States legal system. No other law can be valid if it conflicts with

a constitutional provision. As such, finding applicable constitutional

sections takes on dire importance for legal researchers. Fortunately,

constitutions tend to be short. Furthermore, because of their importance,

most experienced lawyers will know whether or not a constitutional issue

will likely apply without needing to do an overly large amount of research.

Because of these factors, and because jurisdictions tend to publish their

constitutions in the same place as their statutes, we will cover constitutions

and statutes together.

Constitutionally valid statutes act as the second highest source of law in the

United States legal system. An applicable statute will control a given legal

problem over case-made legal rules. This has been the case in the Anglo

legal tradition since the late Middle Ages, as the quote from Francis Bacon

at the beginning of this chapter suggests. However, the full primacy of

statutes did not occur until the Tudor period in the Sixteenth Century.42 In

fact, at that time England underwent the Reformation and split from the

Roman Catholic Church by statute.43 As the development of statutory

authority occurred before the founding of the North American colonies,

statutes have always enjoyed primacy (subject to written constitutions, an

American innovation) in the U.S. legal system.

This is not to say that statutes have always taken the same form. American

political and legal institutions have evolved over time. However, we will not

cover the complete history of statutory forms since what matters to most

researchers is finding and understanding relevant statutes in their current

forms. To understand the different forms statutes currently take, however,

we must first turn our attention to the life-cycle of a statute.

42 For an account of how Henry VIII and his secretary Thomas Cromwell

modernized English political and legal institutions, see generally G. R. ELTON, THE

TUDOR REVOLUTION IN GOVERNMENT; ADMINISTRATIVE CHANGES IN THE

REIGN OF HENRY VIII (1953).

43 Ecclesiastical Appeals Act, 1532, 24 Henry 8, c. 12 (Eng.).