Who Makes the Laws In the United States?

The answer to the question of who makes the laws in the United States varies depending on which law you are referring to. There are two major types of laws in the US: common law and statutory law. There are also two different possible levels of government who can make laws: state law and federal law.

Understanding who makes the laws in the United States requires a brief understanding of US history. When the U.S. declared independence from England, they were wary of a big central government. As such, the constitution created some important protections. The main protections included in the Constitution that affect who makes the laws in the United States are:

• the separation of powers clause
• the concept of enumerated powers
• the system of checks and balances put in place

These three constitutional provisions explain why law is made on both the federal and state level. As far as why law is broken down into statutory or common law, the answer to that comes from the fact that we based our legal system on the English legal system. The English legal system was a common law system, unlike France, for example, which was a civil law system.

So, what does all this mean? What is separation of powers and enumerated powers and checks and balances and common law, and how do all these legal terms relate to how laws actually get made? Read on to find out.

Enumerated Powers

The Tenth Amendment of the US Constitution reads:

"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."

This means that the federal government can't just make laws about whatever they want. They can only make laws about things that the Constitution tells them they can make laws about. On all other matters, states are allowed to make their own laws.

Much of the power of the federal government to make laws stems from the "commerce clause" which gives the federal government the power to regulate anything having to do with "interstate" commerce or commerce across state lines. It is through this clause that the federal government -including Congress and the President- are able to regulate things such as product safety and are able to impose civil rights legislation such as Title VII of the Civil Rights Act of 1964.

Various other federal laws are also made using grants of authority in the Constitution. For example, the 16th Amendment gives the federal government a right to impose an income tax.

However, if the Constitution doesn't tell the federal government that it is OK for them to make a law about a given situation, the federal government can't make a law - only the state can.

Thus, this concept of enumerated powers explains why you have to listen to federal law on bankruptcy or taxation or taxes, but why you have to look into your local government's rules to find out about property laws, divorce laws, custody laws, and other matters that really don't affect anyone outside of that state.

Checks and Balances

The system of checks and balances also affects how the law is made in the US. There are three main branches of the government:

• The executive - the President
• The legislative - the Congress and Senate
• The judicial - the court system

Under this system, no one branch of government can just make laws without the guidance of the other. The President, for example, has to get the votes and approval from the Congress and Senate to pass a bill or law. The President can also veto a law that the legislative branch tries to pass. Finally, if a law is passed and someone sues to challenge whether that law is constitutional, the Supreme Court gets to take a look and make sure the law doesn't tread on constitutional rights.

Common Law

So, the system of checks and balances and the concept of enumerated powers explains why both the federal and state governments make law, and how the three branches of government participate. What about the judiciary though, when do they get a chance to make law?

The courts make law called case law. They make law when they rule on a given case. For example, if a plaintiff sues and says that someone violated an anti-discrimination law passed by a legislature, the court gets to interpret that anti-discrimination law. Their interpretation essentially becomes a part of that law and is binding on all lower courts within the jurisdiction.

As all of the judges and all of the courts hear many different cases, all of their interpretations begin to create the body of case law. The principle of stare decisis dictates that once a judge rules a certain way, that case law is precedent and thus people can count on it, use it to govern their behavior, and all other courts at the same level or lower within the jurisdiction have to follow it.

There are checks and balances here too--- if the legislature doesn't like the way a court interpreted something or doesn't like a "rule" a court created in case law, the legislature can then pass a new law changing the rules (provided they get the support from the president and the legislative branch).

Following the Law

Clearly, there are a lot of things that go into knowing about how laws are made and who makes them. Generally, you should know that you need to follow state law and federal law, and you need to follow law that comes from statutes passed by legislature and cases passed by courts.