Chapter 2

I would like to echo this statement from Stephen Elias: “CAUTION Sovereign Native American tribes have their own courts and laws. These essentially function outside the system we describe here, and are beyond the scope of this book.” Legal Research: How to Find & Understand the Law, 19th ed. (Nolo, 2021), 6.

“Marquette Law School Supreme Court Survey,” Marquette University Law School Poll: A Comprehensive Look at the Wisconsin Vote. “The survey was conducted Sept. 3–13, 2019, interviewing 1,423 adults nationwide, with a margin of error of +/-3.6 percentage points. Interviews were conducted by the National Opinion Research Center (NORC) using its AmeriSpeak Panel, a national probability sample, with interviews conducted online.” “New Nationwide Marquette Law School Poll Finds Confidence in U.S. Supreme Court Overall, Though More Pronounced Among Conservatives,” Marquette University News Center, October 21, 2019.

As an aid to memorizing, see “The Preamble” from Schoolhouse Rock! available on YouTube (see the links page at CivilRealm.com ). Note that ‘of the United States’ is omitted in the lyrics. Lynn Ahrens, vocalist, composer, and writer, “The Preamble,” Schoolhouse Rock!: Special 30th Anniversary Edition, directed by Tom Warburton (1975; Burbank, CA: Buena Vista Home Entertainment, 2002), DVD.

Although I cannot endorse everything on this site, the following review of court rulings is enlightening: “Fifth Amendment—Right Against Self-Incrimination,” Annenberg Classroom.

“The principle of double jeopardy—which does not allow a defendant to be tried twice for the same charge—does not apply between the federal and state government. If, for example, the state brings a murder charge and does not get a conviction, it is possible for the federal government in some cases to file charges against the defendant if the act is also illegal under federal law.” “Introduction to the Federal Court System,” U.S. Department of Justice.

See “I’m Just a Bill,” from Schoolhouse Rock! available on YouTube (see the links page at CivilReam.com ). Jack Sheldon, vocalist, “I’m Just a Bill,” by David Frishberg, Schoolhouse Rock!: Special 30th Anniversary Edition, directed by Tom Warburton (1976, Burbank, CA: Buena Vista Home Entertainment, 2002), DVD.

“It will be of little avail to the people . . . if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” Madison, Hamilton, and Jay, The Federalist Papers, no. 62, 368.

Lee Drutman, The Business of America is Lobbying: How Corporations Became Politicized and Politics Became More Corporate (New York: Oxford University Press, 2015).

USA.gov. "Branches of Government." Last modified May 12, 2023.

“The Executive Branch,” The White House.

William R. Sanford and Carl R. Green, Basic Principles of American Government (New York: Amsco School Publications, 1986), 153.

Daniel Judah Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987), xii.“There have been three critical federal experiments in the history of humanity to date. The Israelite tribal federation described in the Bible was the first . . . the establishment of a polity of tribes maintaining their liberties within the framework of a common constitution and law . . . The second was the Swiss Confederation. Seven hundred years ago it preserved liberty in medieval Europe. Later it fostered the principal liberating stream of the Protestant Reformation and survived to create a garden spot in the world, self-governed by free people. The third was the United States of America” (xii).Elazar again: “Recurring expressions of the covenant or federal model are found in ancient Israel, whose people started out as rebels against the Pharaonic model; among the medieval rebels against the Holy Roman Empire; in the Reformation era among rebels against the Catholic hierarchy; among the early modern republicans who rebelled against either hierarchical or oligarchic regimes; and in authentic modern federal systems. Frontiersmen generally—people who have gone out to settle new areas where there were no established patterns of governance in which to fit and who, therefore have had to compact with one another to create governing institutions—are to be found among the most active covenanters and builders of federal institutions beyond that original covenant” (4–5).

“The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law. For example, if a First Amendment freedom of speech case was decided by the highest court of a state (usually the state supreme court), the case could be appealed to the federal Supreme Court. However, if that same case were decided entirely on a state law similar to the First Amendment, the Supreme Court of the United States would not be able to consider the case.” “Introduction to the Federal Court System,” U.S. Department of Justice.

“Sometimes, the jurisdiction of state courts will overlap with that of federal courts, meaning that some cases can be brought in both courts. The plaintiff has the initial choice of bringing the case in state or federal court. However, if the plaintiff chooses state court, the defendant may sometimes choose to ‘remove’ to federal court.Cases that are entirely based on state law may be brought in federal court under the court’s ‘diversity jurisdiction.’ Diversity jurisdiction allows a plaintiff of one state to file a lawsuit in federal court when the defendant is located in a different state. The defendant can also seek to ‘remove’ from state court for the same reason. To bring a state law claim in federal court, all of the plaintiffs must be located in different states than all of the defendants, and the ‘amount in controversy’ must be more than $75,000. (Note: the rules for diversity jurisdiction are much more complicated than explained here.)” “Introduction to the Federal Court System,” U.S. Department of Justice. Criminal cases may not be brought under diversity jurisdiction. States may only bring criminal prosecutions in state courts, and the federal government may only bring criminal prosecutions in federal court.

Madison, Hamilton, and Jay, The Federalist Papers, no. 46, 297.

Many times a case has both federal and state law, so the lawsuit can be in either federal or state court. “Introduction to the Federal Court System,” U.S. Department of Justice.

U.S. Department of Justice. "Introduction to the Federal Court System." Accessed August 27, 2023.

U.S. Const. art. III, § 2. The Supreme Court hears original trials for all cases affecting ambassadors and other public ministers and consuls, all cases of admiralty and maritime jurisdiction, controversies in which the U.S. is a party, and controversies between two or more states, or between a state and citizens of another state, or between citizens of different states. “The Judicial Branch,” The White House.

Supreme Court of the United States. "The Court and Constitutional Interpretation.".

For a list of Supreme Court decisions overruled by subsequent decisions, see Constitution Annotated, “Table of Supreme Court Decisions Overruled by Subsequent Decisions.”

“How Laws Are Made: The Administrative Agencies,” Alexander Campbell King Law Library, University of Georgia School of Law.

A few of FDR’s original agencies are still in existence today. Debbie Hadley, “7 New Deal Programs That Still Exist Today,” ThoughtCo, updated September 2 , 2024.

For an extensive explanation of these rulings, see “Delegation of Legislative Power,” Justia.

U.S. Environmental Protection Agency. "Summary of the Administrative Procedure Act." Last modified August 17, 2023.

U.S. National Archives and Records Administration. "Federal Register Tutorial." Accessed August 28, 2023.

The 2021 Code of Federal Regulations contains 245 volumes and 188,343 pages and is approximately four times the size of the 44,000-page United States Code of Laws. “Code of Federal Regulations,” U.S. National Archives and Records Administration, accessed August 28, 2023. See also Susan E. Dudley, “Milestones in the Evolution of the Administrative State,” Daedalus, Summer 2021.

“The administrative state represents a new and pervasive form of rule, and a perversion of constitutional self-government. It has deep theoretical roots that were overlooked for a long time, roots inimical to the Constitution, thereby providing a lesson in the importance of understanding the principles of the Constitution. A chief feature of the administrative state is its relentless centralization, but with a reciprocal effect: its mandates, regulations, distorting funding mechanisms, and elitist professionalism have corrupted our political culture all the way back down to local government. It is the chief reason why Americans increasingly have contempt for government.” Steven F. Hayward, “The Threat to Liberty: The administrative state and the end of constitutional government,” Claremont Review of Books, Winter 2016/17.

Eric Katz, “Supreme Court ends judicial deference to federal agency expertise,” Government Executive, June 28, 2024.

Nicholas Mosvick, “How the Supreme Court Created Agency Deference,” Constitution Daily (blog), National Constitution Center, June 25, 2021.

Maeve P. Carey, “An Overview of Federal Regulations and the Rulemaking Process,” Congressional Research Service.

“The 1780 Constitution of the Commonwealth of Massachusetts, drafted by John Adams, is the world’s oldest functioning written constitution. It served as a model for the United States Constitution, which was written in 1787 and became effective in 1789.” “John Adams & the Massachusetts Constitution,” Massachusetts Court System.

“State Constitutions,” USLegal.com.

“State Constitutions,” USLegal.com.

The information for Figure 2.5 is taken from Columbia Law Review, et al, The Bluebook: A Uniform System of Citation, 21st ed. (Cambridge, MA: Harvard Law Review Association, 2020), T1.3, 242–294. The information for Figure 2.6 on the following page is from “Listing by jurisdiction,” Legal Information Institute, Cornell Law School.

National Association of Secretaries of State, “Administrative Rules—United States of America,” Administrative Codes and Registers (ACR).

Nestor M. Davidson, “Local Constitutions,” Texas Law Review 99, no. 5 (April 29, 2021).

“Introduction,” Constitution of the United States, United States Senate.