U.S. Common Law

Contributor: Nathan Murphy. Lesson ID: 13626

Common Law is the legal considerations judges make that are not in the form of codified laws. The past decisions of other courts play an immense role in the judicial process to this day.


History, United States

learning style
Auditory, Visual
personality style
Grade Level
High School (9-12)
Lesson Type
Dig Deeper

Lesson Plan - Get It!

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  • Did you know that the United Kingdom does not have a Constitution like the United States or other democratic nations do?

This is because their various court cases are seen as laws in and of themselves, and they do not see the point in organizing their laws into a single document when they have over 800 years of common law holding their legal system together.

When America's Founding Fathers were creating a judicial system, they relied heavily on this principle.

  • What is common law, then, if it is not codified and put down on paper?

U.S. Court System

US Supreme Court

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 pertaining to 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 their state of Virginia for violating their freedoms as American citizens.

Mildred Jeter and Richard Loving

Image by the New York Times, via Wikimedia Commons, is available under fair use.

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 on what constitutes the union of two people.

Because of this, many people felt this type of 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 Section 1 (Constitution Center), which says:

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 former slaves. They did not think it should be extended beyond that.

The majority believed what current Supreme Court Justice Neil Gorsuch believes about the 14th Amendment as shown in the Gorsuch Praises Equal Protection, 14th Amendment from AP Archive:

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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 in order 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 in order to justify the Loving v. Virginia decision to permit interracial marriage.

Brown v. Board of Education in PBS' The Supreme Court from Herve Cantero:

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

This practice of common law enables trends to move forward because each case can build off of 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 it otherwise would.

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.

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