Intelligence Law School - Course 1: Lesson 3.1.2 The Supreme Law of the Land [HTML-Only]

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3.1 Introduction to Constitutional Law

3.1.2 The Supreme Law of the Land

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3.1.2 The Supreme Law of the Land

As I mentioned in Lesson 2, the Constitution is the supreme law of the land.[1]

It will therefore be the first source of primary legal authority we’re going to discuss in detail.

Constitutional law is simply the law that’s derived from the U.S. Constitution.

It refers to

1)      The text of the Constitution itself; and

2)     The holdings in any binding judicial decisions interpreting that text.


There is no law higher than constitutional law.

Any statute, administrative regulation, or government action that conflicts with constitutional law will be unconstitutional by definition.

All governmental actors are bound by constitutional law.

This includes the President, Congress, the Courts, and all government employees.

If Jack Bauer were real, even he would be bound by constitutional law.[2]  


Every government employee must obey the Constitution and respect the constitutional rights of American citizens because the Constitution is the supreme law of the United States.

And if that’s not enough of a reason by itself, then government employees have to adhere to constitutional law because if they don’t they might get sued.[3]

The Civil Rights Act[4] and a case called Bivens[5] each create a cause of action that allow individuals to sue state and federal officials in federal court for violating their constitutional or statutory rights guaranteed by federal law.

I’ll talk more about civil rights actions a little later.

For now, just know that constitutional and statutory laws are not just Kumbaya.

There can be serious penalties for government employees who choose to ignore any rights secured by federal law.[6]



[1] U.S. Const., art. VI, § 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").

[2] See generally United States v. Lee, 106 U.S. 196, 220 (1882) (“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.”).

[3] See Butz v. Economou, 438 U.S. 478, 505-506 (1978) (“The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees. The broad authority possessed by these officials enables them to direct their subordinates to undertake a wide range of projects—including some which may infringe such important personal interests as liberty, property, and free speech. It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen’s house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees. Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law: ‘No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.’ United States v. Lee, 106 U.S. at 220.’”).

[4] 42 U.S.C. § 1983 (“Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”).

[5] See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

[6] For example, in February of 2010, this Civil Rights Act was used to file a federal class action lawsuit against a suburban Philadelphia school district that spied on its students at home by remotely activating webcams in laptop computers it issued to all 1800 students in the Lower Merion School District. Administrators were able to take photos of teenaged students undressing in their bedrooms, record their IP address to pinpoint their location, and snap screenshots if the student decided to view spicy material online. The School District quickly settled the case, agreeing to pay a reported $610,000 to avoid taking the case to trial—where I’m sure they would have gotten hammered. 42 U.S.C. § 1983 was the statute that provided the cause of action necessary to bring the suit in federal court. See Douglas Stanglin, School District Accused of Spying on Kids via Laptop Webcams, USA Today, Feb. 18, 2010.


© 2012 David Alan Jordan. All rights reserved.