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What is the Difference Between Common Law and Case Law?

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  • Written By: Alexis W.
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  • Last Modified Date: 10 May 2019
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Common law and case law have essentially the same meaning in many legal systems, including that of the United States. The body of common law is made up of various case law from different court systems throughout the country. This case law is legally enforceable unless a higher court overrules it or the legislature creates a law that supersedes it.

In the United States, the law is comprised of the Constitution, statutes, and case law. The Constitution, both at the federal and state levels, is considered the "supreme law of the land." It created the separation of powers and vested certain authority in the legislative branch and certain authority in the courts.

The federal and state government are each permitted to make laws on the areas that the Constitution delegated appropriate to them. These laws are called bills or statutes and are published in code books. As long as these government-made laws do not violate Constitutional rights or parameters, the laws are valid.

Statutes and the Constitution, however, are all subject to interpretation as to their meaning. Furthermore, these types of law cannot possibly address every potential legal situation or question that arises. This is where common law โ€” or case law โ€” comes into play.

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Case law is law made by judges that interprets or refines statutes and constitutions. Case law, in other words, applies general laws to specific cases, thereby refining the definition of the laws in the process. If no specific statute or Constitutional rule is on point, judges must also determine which related laws and rules they believe the law to be based upon.

Once a judge makes case law, or interprets an existing law, that case law and interpretation is binding on all courts at the same level or lower within the jurisdiction. The case law is binding under the doctrine of stare decisis, which is derived from a Latin phrase that means "stand by and adhere to decisions and not disturb what is settled."

Lawyers and individuals can turn to case law to determine how a law will apply, and can use that case law to govern their behavior. All courts within the jurisdiction thus must apply that case law. Only a court at the same level, or a higher court, can overrule existing precedent or case law.

Under the common law system, only case law within the jurisdiction is binding. This means that a California judge does not have to listen to what a New York judge says about the law. A California judge must, however, listen to what other California judges say about the law, unless they are a higher court and can overrule the existing common law rule.

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anon1000814
Post 3

Case law/common law violates Article I ยง 1 of the Constitution. Nowhere in that document does it give the courts the right to legislate from the bench. They stole it in Marbury v. Madison (1803). See Georgetown University Law Professor Susan L. Bloch's peer reviewed article called The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court.

Jefferson, Madison, Jackson, Lincoln and others were against it. Here's a quote from the latter:

"The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically

resigned their Government into the hands of that eminent tribunal." โ€” Abraham Lincoln

It's a bad idea because legislating from the bench is not only unconstitutional, it allows a simple majority of Supreme Court Justices to override 435 congress people, 100 senators, the president (who usually signs bills into law) and the people who elect the aforementioned into office.

The Supreme Court of the United States used this unconstitutional power to hold that corporations are people too (essentially lifting campaign finance spending limits for corporations so they can drown out the voices of regular people). In addition to abusing a power they don't constitutionally possess (though John Marshall lied and said otherwise), they also use the power of judicial review in case/common law selectively.

When judges or justices want to enforce something not in the constitution they refer to it as a "holding". An example of this was the SCOTUS' holding in UNITED STATES v. EICHMAN (1989) where they decided to consider flag burning speech protected from state and federal interference even though there were only seven definitions for the word speech in 1787, six of which were based on speaking orally and one was reserved for writing. There was nothing in our vocabulary at the time to consider flag burning or armbands being worn on shirts as protected speech (written or verbal).

In other words, given the specification of the definition of the word at the time, it would have been a legislative function to expand the meaning of the word "speech" to include other things we'd like to role into its meaning. That is to say, it would have had to have been a legislative function of the general assemblies and the people throughout the several states passing a constitutional amendment for this holding to have been constitutional and not a simple majority of justice hearing a case). The SCOTUS was merely meant to be the highest court of the land, but it was not empowered to do anything beyond what the constitution explicitly states.

Previous to this, the court forgot in Tinker v. Des Moines Independent Community School District (1969) that the First Amendment also only pertains to the Congress and not the states, and that the 14th Amendment doesn't allow the court to declare laws as interchangeable between the several states and the federal government. Section 1 of that amendment states the following:

"...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The First Amendment restricts CONGRESS from passing laws that abridge freedom of speech among other things; it makes no mention, however, of the states. In other words, it does not prohibit them from making such laws. But the 10th Amendment, however, explicitly states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The First Amendment does not grant the Congress the right to abridge freedom of speech, but it also does not prohibit states from having such power, so the states are literally allowed to abridge freedom of speech if it is consistent with their individual state constitutions or if the people allow them to make it so by amending their state constitutions.

Why would anyone want to abridge the right to freedom of speech and the press? Well, for one, this makes yelling fire (when there isn't one) to cause a panic in a crowded theater illegal and constitutional. It also gives the states a right to address the agenda of the mainstream media.

I'm not saying that states should (or shouldn't) abridge certain speech, or freedom of the press (that goes beyond the scope of this article), but when we break the rules in ways that seem to make sense on the surface, it opens up other rule breaking that is clearly unconstitutional. In other words, we shouldn't be so eager to throw the baby out with the bathwater.

In fact, the SCOTUS breaks the rules anyway, even if it means acting in opposition to the violation I just wrote about. For example, the Court was more than happy to create an unconstitutional holding to expand the First Amendment by apply it to the states (without passing a constitutional amendment), but in another case, they treated an opinion that should have been a holding as dicta in the SCOTUS case District of Columbia v. Heller (2008).

Antonin Scalia gave his opinion in that case that both the right to keep and bear arms were rights held by the people (and not just militias), which prohibited the City of Washington from continuing to ban the possession of certain firearms (in a particular way inside homes which was pertinent to the case (i.e. the right to "keep" arms).

However, while Scalia "held" the right to "keep" arms (enforcing the law), the fact that he applied the notion dicta to "bearing" arms is alarming (i.e. an opinion that it is not binding). Think about that. The SCOTUS was willing to state abridging the freedom of speech was outside the jurisdiction of states when it clearly was not (violating the constitution), but when it comes to a constitutional right that is protected at both the state and federal level (the right to bear arms), the courts takes purposeful steps to interpret half of Scalia's opinion dicta.

Remember, the Second Amendment states the following:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The "right" (written in the singular) is of the people to "keep and bear arms"; as such, it is one right with two components and not two separate rights merely mention in one amendment. See the difference. This would have been explicitly obvious to the Court.

Moreover, it would be one thing to take two dissimilar or unrelated opinions in a case and separate them (one becoming binding and the other not), but it's a whole other kettle of fish when the rights are intrinsically connected. In other words, there is nothing in the Second Amendment separating the two or making one more important than the other. Put another way, you can't make a reasonable argument that the people who ratified the amendment meant the right to keep arms was legally different or any better or more protected than the right to "bear" arms (the right is to "keep and bear arms").

For example, if the Court wanted to rule that a written note passed at a meeting was protected under the First Amendment, but it hypothetically also said that would go for pornographic picture, under current case law or common law, his or her opinion about the note would be binding (held) but the opinion about a hypothetical photograph would be dicta (a non-binding opinion). I can almost see that making sense, but they literally stretched their own rule to the point of absurdity by separating one right guaranteed by the Second Amendment into two separate rights addressed in the same amendment.

The reason this is important is that nine states that currently prohibit concealed carry are in violation of the 14th Amendment; but by treating the right to "bear" arms as dicta and not the equivalent of a holding (in this case, keeping arms), now a second case dealing with the same amendment (and same right) must make its way to the Supreme Court for them to protect that aspect of the Second Amendment as well. Remember, this isn't like some amendments which deal with different issues in one bill (e.g. like the 14th Amendment), this is talking about the right to keep and bear arms as one right, in one sentence, in one amendment. That's a big difference for the citizens of the United States. It's the difference whether a person has the right to keep and bear arms in all states. Isn't this a 14th Amendment issue?

Is it any surprise that when Pertua v. San Diego County came before the courts soon after Gorsuch was appointed to the SCOTUS, that 3 of the 5 Republican justices making up the majority of the court declined to hear the case? Gorsuch and Thomas claimed to have voted for it (though these votes are done in private to the point they even kick their personal aids out). Peruta would have done for "bearing" arms what Heller did for "keeping" them. This was a ripe and potentially landmark case of particular interest to the American people. There was no reason to not hear the case, and no reason was given for turning the case down.

Our legal system is a farce, and without writing a treatise here, I will simply say that the points made above or just a few of many that support the idea that our justice system is extremely corrupt. As it pertains to this article, the first two paragraphs are clearly in error, as is our legal system, because it completely ignores Article I Section 1 which states:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

It does not say "most", or "some", or "the majority" of legislative powers, it says "all". More specifically, it states all legislative powers herein granted. This means blatantly or implied. There is absolutely no basis then for the courts to have legislative prerogatives in courts. If the Constitution is ambiguous about something, then it is up to the Congress and the people to decide what to do. That may merely mean passing a law, or it could mean passing an amendment to the constitution, but it certainly does not mean that the Supreme Court, or lower courts in general, have the right to fill in the blanks with a legislative prerogative, and there is not a Supreme Court Justice alive, or who has ever lived, that could possibly believe that nonsense in my opinion. It's corruption, plain and simple, because these judicial uses of legislative authority can be used in all sort of ways from dividing the country to getting powerful criminals off the hook.

sheilarc
Post 2

What is the difference between being a citizen of the USA or a people of the USA?

EchoRoll
Post 1
A good example of how common law can be interpreted differently is common law couples versus actual marriages. I once lived in a state that allowed unmarried couples to have property rights similar to married couples. The neighboring state would not recognize those rights.

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