U.S. Common Law

Lesson Plan - Get It!

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U.S. Court System

Common law is the amalgam of the various court decisions that have ever been decided. Over the 200+ year history of the United States, court cases about almost everything have been decided.

While this concept of common law is what forms the basis for the judicial system in the United Kingdom, it plays a much more specific role in the United States.

In each case that is decided, the judge or judges issue an opinion that justifies the reasoning used in the decision. These opinions are then only utilized in current court cases when the constitutionality of a law or action comes into question.

A major example of this would be the court case Loving v. Virginia. In this 1967 case, an interracial couple wished to marry; however, their state made it illegal for them to do so. The couple subsequently sued the State of Virginia for violating their freedoms as American citizens.

Loving v. Virginia Opposition

The major argument against their right to marry was that a court has no grounds to say what is and isn't marriage because the Constitution says nothing about what constitutes the union of two people.

Many people felt this issue should have been left up to the individual states.

Loving v. Virginia Majority

The Supreme Court eventually ruled in favor of the Loving couple using common law to justify their reasoning.

Both sides had their own opinion of the 14th Amendment's section 1, which says the following.

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. 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 opposition believed this Amendment, passed just after the Civil War, was strictly talking about the rights of formerly enslaved people. They did not think it should be extended beyond that.

The majority believed what current Supreme Court Justice Neil Gorsuch stated was his belief in this 2017 video.

Gorsuch argues that the personal opinions of the original amendment writers do not inform how the law should be interpreted.

The 1967 justices deciding this case utilized a piece of common law to bolster their claim that the 14th Amendment guaranteed all people the right to marry without racial prejudice.

As you watch the video below, try to determine how Brown v. Board of Education was used as common law to justify the Loving v. Virginia decision to permit interracial marriage.

• Doesn't the Brown v. Board of Education reasoning make support for the Loving v. Virginia decision much more constitutionally sound?

This common law practice enables trends to move forward because each case can build on a past one.

• What would the court system look like without the use of common law?

If every case that relied on the 14th Amendment to expand individual rights was independently decided rather than based on common law, the opinion of individual justices could play a much more significant role in the decision-making process.

Common law allows federal law to be enforced much more uniformly than otherwise.

Despite the strength of common law, however, it can still be struck down.

For example, the Supreme Court ruled in the 1896 case Plessy v. Ferguson that separate but equal was permitted under the 14th Amendment. It took more than five decades for this to be overturned by Brown v. Board of Education.

This is why the Brown decision was so monumental. It did not rely on any common law, simply the new interpretations of the current Supreme Court justices.

A judicial system based around common law can respond to change and embrace a trend toward equality.

Move on to the Got It? section to review how this system functions.