This essay will briefly discuss the creation laws in the US. A special attention is given to the common law heritage and US court system as sources of laws. An opinion is also given on what should and should not be taken into account when the laws are being formed.
Laws are created to “maintain a well regulated society” (Bakken Para. 1).
In the process of creating the law there are some specific considerations which have to be taken care of: “a need to have the consent of the people, a system of checks and balances, and a public policy flexibility suited to the problems of time and place” (Bakken Para. 1). It reported that in the 17th and 18th centuries representatives were sent to colonial nations to create rules which could help to govern the people. Laws governing the running of trains were created through gatherings. Upon the discovery of gold in California a gathering was formed to create local mining district rules. Still in the 21st century neighbours in California gather “to make rule changes, within a recorded declaration of covenants, conditions, and restrictions, on what property alterations are permissible for those living within a housing tract” (Bakken Para. 1). The origin of the US law has some English roots.
The British in America put into practice their homeland laws after slight adjustments so as to serve the US better (Beatty & Samuelson, 2006). It is recorded that the English colonists left the idea that the people were supreme and that it is only by their consent that the government governed over them. This knowledge of people being superior to the government led to the creation of internal checks and balances that could help to prevent government from overstepping the mandate given to them by the people and abusing their rights (Criminal Laws, 2009). At the present time criminal laws are created by the constitution. The legislative bodies also play part in the creation of criminal laws. The US constitution has created and empowered the congress to create laws as long as the laws created do not violate the constitution. It is worth noting that a federal statute applies for all the US states; however state statutes only apply in particular states where they were created. Case law or common law is a result of a decision made from a court ruling.
A case law in the US sets the basis upon which a future case can be ruled and thus acts as law upon which similar cases can be ruled. It is worth noting that for a case to be ruled on the basis of another case it has to be shown that they have similar circumstances beyond any doubt (Criminal Laws, 2009). The constitution is supreme and should be considered when laws are being created (Hayward, 2000). Any law that goes against the constitution should be disbanded. I believe that laws created should uphold human dignity and if there is any proposal that will degrade human dignity it should not be allowed to become law.
The constitution empowers self governance to the states through the state law systems.
The federal court system takes precedence where issues touching on the entire nation are in question. Any state statute that conflicts federal statute can be nullified by the federal court system on ground of being termed unconstitutional. The federal court system has a criminal jurisdiction through the Federal Interstate Commerce Clause and thus taking over “governance of interstate business issues such as telephone, television, trucking, U.S. mail, and air travel” (Criminal 2011, Para. 1). The following are also under the jurisdiction of the federal court systems “national security, the military, the Post Office, Federal Taxes, and Federal benefit entitlement programs” (Criminal 2011, Para.
1). Some crimes considered under state jurisdiction may turn over to be federal if they pass over the state line for instance if a person has sex with a minor who is from a different state then such a crime falls under the jurisdiction of the federal court system. Another example is graffiti which is considered under the jurisdiction of the state court system but when graffiti is on the walls of structures which are under the jurisdiction of the federal court system for instance the post office then it becomes a federal crime (Criminal, 2011).
The process of law making has a long history with deep roots in the English law brought to the US by the English colonists. The English laws were slightly altered to fit the new environment in the US. People are supreme and they give the consent to be governed to the government. The constitution is the supreme document upon which all laws are based.
Care has to be taken to create internal check systems to avoid a government from abusing the rights of the people being governed.
Bakken, G. (n.d). The Creation of Law in a Democratic Society. Democracy Papers. Retrieved from http://www.
ait.org.tw/infousa/zhtw/DOCS/Demopaper/dmpaper5.html Beatty, J & Samuelson, S. (2006).
Business Law and the Legal Environment. New York, NY: Cengage Learning. Criminal. (2011). The Difference Between Federal and State Crimes. Criminal Law.
Retrieved from http://criminal-law.freeadvice.com/criminal-law/federal_state_crime_difference.htm Criminal Laws. (2009). The Creation of Criminal Laws in the United States. Money Instructor.
Retrieved from http://www.moneyinstructor.com/doc/criminallaw.asp Hayward, W. (2000). How the West was Lost: theft and usurpation of state’s property rights.
New York, NY: Cengage Learning.