Levels of Law

In the United States, we have two basic categories of law: normal statutory law and Constitutional law.  Constitutional law is shorter than normal law, speaks to broader principles, and is harder to change.

I think this is a broadly good thing.  It allows people to have some understanding of what their government is doing, to understand the principles it works on, without trying to digest thousands and thousands of pages of detail-oriented lawyerly language.

Indeed, it’s so much of a good thing that couldn’t we do more with it?

What if we had three levels of law, or more?

At the apex would continue to be Constitutional law.  At the nadir would be common statutory law.  And in between we would have one or more levels of law that bridged the gap: more detailed than Constitutional law, less detailed than statutory law.  Easier to change than Constitutional law, more difficult to change than statutory law.  Inferior levels of law would be invalidated by the courts if they contradicted superior levels of the law.  So if we had three levels: statutory, Superior, and Constitutional, then statutory law would be invalidated if it contradicted Superior or Constitutional law, while Superior law would be invalidated if it contradicted Constitutional law.

This is a tool that would allow more control over our legal system.  The incredible detail of statutory law has a point, but it makes statutory law almost impossible for people who have not made painstaking, detailed study of the law to understand.  Which is a problem.  What if, on subjects like, say, copyright, we had not the sentence or two about it that’s in the Constitution, but maybe two pages worth of Superior law, that fleshed out our principles on the issue of copyright and its role in society, what its limitations are, without enshrining such verbage in the Constitution?  Someone who wanted to have a lay understanding of copyright could read two pages and get the general principles.  Congresspeople might actually be able to read Superior law, when obviously they can not possibly read the statutory law that they regularly enact.  We could debate it on its merits, and not rely on summaries of summaries.

This tiered system could be put into place with a Constitutional Amendment.  We could require, say, 60% or 55% or whatever majorities in both Houses of Congress to enact new Superior law.


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