Where Does the Law Come From?

The Supreme Court has failed to do what its English predecessors did for centuries: create remedies for wrongs. But in the states, courts have started living up to their ancient responsibilities.

José Oliva is a victim of parliamentary supremacy—and federal security guards.

In February 2016, Oliva—a then-70-year-old Vietnam veteran and former law enforcement officer—made a routine visit to his veterans’ hospital in El Paso, Texas for a dentist appointment. The guards asked him for his identification after he had already placed it in a security scanner bin. Not liking Oliva’s explanation for where the ID was, the guards tackled him, permanently damaging his shoulder. Oliva later sued the officers over this unprovoked attack, arguing it violated his rights under the Fourth Amendment to the U.S. Constitution.

This lawsuit should have been run-of-the-mill as civil rights actions go. Agents assaulted a man who had done nothing wrong and posed no threat. Even so, the Fifth Circuit Court of Appeals—the federal appellate court that covers Texas—determined that Oliva couldn’t file a lawsuit against the guards for constitutional violations because Congress hadn’t explicitly allowed for one. This was in keeping with an increasingly restrictive view of civil rights actions from the Supreme Court.

Further west, however, parliamentary supremacy isn’t standing in the way of Stephen Lara. That’s because of another doctrine—federalism. Lara, also a veteran, made an all-too-common mistake: he drove with cash. Suspicious of banks, Lara had several years of savings in his backpack, along with receipts demonstrating it was all legit. Traveling from Texas to see his daughters in California, the Nevada Highway Patrol pulled him over outside of Reno. With no evidence of anything illegal connected to the cash other than a drug dog sniffing it, the police seized all of his money. (Drug dogs are notoriously overinclusive in their alerts, as Radley Balko has explained.)

Lara got the cash back, but only after his wild story hit the media and he filed a lawsuit. That money, however, wasn’t everything that was due to him. Deprived of his savings for six months, his life was thrown into turmoil. So he pressed forward with claims for damages for the police violating his Fourth Amendment rights—like José Oliva tried to do—but also for his parallel search and seizure rights under the Nevada Constitution. And in December 2022, in a different case on the same issue, the Nevada Supreme Court ruled that state constitutional claims can be brought against state officials for damages even though, just like Congress, the Nevada legislature has never explicitly allowed them.

Nevada was not alone. Just months earlier, Michigan’s supreme court did the same thing in a case involving violations of the Michigan Constitution’s due process clause. A few other state courts have done the same in recent years, bucking the “parliamentarians” in Washington, D.C.

Oliva’s and Lara’s stories—both of whom are represented by my colleagues at the Institute for Justice—put in sharp contrast what happens when American courts have, and do not have, a Parliament-centric view of the law and the Constitution.

The divide concerns whether “The Law” is just what the legislature or Congress says it is, and whether the courts have a role in opening up the courthouse doors.

Law Without a Lawmaker

There’s a still-unresolved ambiguity at the heart of the American legal and constitutional system: the question of where “law” comes from. In reality, there’s more than one source, each of which is great for what it is but needs to be kept in its place. Unfortunately, they’re frequently confused.

One source is simply the past. We call this the common law. One of America’s greatest inheritances from England, this is the “uncodified” set of legally enforceable rules of conduct. Rip a hole in your neighbor’s garage while riding your lawn mower? The rules for whether you’re liable are likely not found in a statute but in judicial opinions which, in turn, cite older judicial opinions. And even those opinions are not “the law.” They are evidence of “the law.”

So where does “the law” itself come from?

From those same opinions and the actions of all of us over time.

Common law rules certainly change over the years, but they change gradually (or at least this is how it is supposed to be) and not because judges purposely “make” the law. Instead, law changes because judges apply legal rules to specific facts before them. Rules then evolve, especially as technology, practices, and mores change in society. To steal from Adam Ferguson’s famous quip about social phenomena, the common law is “the result of human action, but not the execution of any human design.”

Now, the rules that apply to your lawnmower accident might make their way into your state’s statute books, but that’s either because your legislature has “codified” them, or because the legislature has changed the rules of conduct. If the legislature doesn’t do anything, it’s not like there’s no “law.” Legislatures and even state constitutions sometimes say things like, “the common law of England as it existed at statehood is our law,” but no court is going to say we’d live in literal anarchy if that piece of clarification didn’t exist.

This view of “the law” is not peculiar to England. In past ages it was pretty universal—just not always articulated the same way. For example, in the Middle Ages Western Europeans rediscovered (for themselves, that is) the Justinian Code. Compiled on the eponymous emperor’s orders in Constantinople in the sixth century A.D., it was a mix of existing actual statutes that the Roman state had previously adopted plus new laws. When northern Italian jurists and scholars engaged with it centuries later, however, for all practical purposes the “Roman state” as it existed then had no legal authority over them. Even so, judges gladly used the “new” code to inform them on what “the law” was.

What these medieval jurists did would be akin to a judge in Wisconsin finding a copy of the Napoleonic Code in a University of Wisconsin archive and applying it to disputes before her. Wisconsin litigants would say those laws were never adopted by the people of the state or any other governing authority. But that wasn’t how these medieval jurists thought. Law was just “out there,” to some extent. A judge’s job was to discover it and—importantly to José Oliva’s and Stephen Lara’s cases—find a way to enforce it.

Parliamentary Say-So

Another source of law in modern America comes from the other side of the nation’s legal and constitutional heritage: Parliament.

The common law was one form of English law, Parliament’s dictates another. Parliament could override and augment the common law. When coupled with the Crown (a complicated relationship we won’t explore here), “the King in Parliament” was the sovereign.

These divergent sources of law sat comfortably in the hands of England’s judges. Courts applied both and, importantly, crafted how you got into court in the first place. Today lawyers call these “causes of action.” It’s all well and good for my neighbor to have a law—of the common or parliamentary variety—that says I have to pay for smashing up his garage. But it doesn’t help him much if he can’t get into court to enforce it. But in the English system this generally wasn’t a problem. The judges just crafted causes of action as a part of enforcing “the law.”

They did that for common law matters, but they did it for Parliament’s statutes as well. In fact, as Wake Forest University’s Miles Foy once detailed, for centuries English courts routinely created “implied causes of action” when Parliament created legal duties but didn’t spell out how to get into court to enforce them.

A New Sovereign

Before, during, and after the American Revolution, the Founders took the common law and other features of the English legal system and seeded them into American institutions. They obviously didn’t seed “the King in Parliament.” They did, however, adopt the idea of the legislature as a lawmaker. But ultimate, sovereign, lawmaking power lay in a new place: “the people.” And this “people” was not the same as the legislature. The people’s power is expressed when they adopt a constitution, a “higher law” to the mere statutes of legislatures.

Much of this looked the same, but the people’s “higher law” was a new twist with major ramifications. Decoupling sovereignty from the legislature plus adding a higher law above the legislature inextricably led to judicial review, the power of courts to declare the legislature’s law unconstitutional. And it also led to the question at the heart of Oliva’s and Lara’s cases: How is this higher law enforced when a servant of the state violates it and damages a citizen?

From the common law side of the heritage there’s an easy answer. In common law cases, judges by-and-large still have their traditional causes of action. They can even make new ones where need be. For example, the tort of negligence is a common law cause of action your neighbor could use against you to fix his garage. Now nearly ubiquitous, it actually is younger than the Constitution.

Thus, from a common law point of view, to enforce the sovereign’s higher law, such as provisions of the Bill of Rights, a court should simply analogize to existing causes of action. A court recognizing a ”constitutional tort” in Oliva’s case would effectuate “the law” just like a court recognizing a tort of negligence.

Given that this is what English courts used to do for statutes, it should also be true on the other side of America’s dual heritage, the parliamentary supremacy side. Unfortunately, things have grown more complicated since the time of the Founders. As Miles Foy details in his article, at some point in the 19th century, judges in both the United States and in England became less sure of their ability to create causes of action for statutes. Although creating implied causes of action for statutes still happened, it came with doubts. There was a brief revival at the U.S. Supreme Court in the 1960s, but it didn’t last. Today, the very idea faces overwhelming hostility in the courts.

Right or wrong, that is the current view when it comes to statutes. And it does have an argument behind it that makes some sense: If the legislature has made “the law,” it stands to reason the legislature should make the remedy as well. The legislature giveth the protections of the statute so only the legislature can giveth the additional a cause of action and remedy. Again, that was not the case in previous ages, but that logic is there.

That’s statutes. What about the Constitution?

The Supreme Court has increasingly said that if Congress hasn’t explicitly created a cause of action for a violation of the Constitution, then, just like a statute, there is no cause of action available. But this fails to come to grips with the difference between a statute—which was an act of the sovereign under the English system but is not in America—and the American concept of a “higher law.” You might as well say that only the people, through a constitutional amendment, can create a cause of action to enforce the Constitution—something nobody believes. Therefore, if the Constitution doesn’t specify who makes causes of action—the courts or the legislature—who does?

Who Causes the Cause of Action?

Answers to the question of how to enforce the “higher law,” especially when damages are involved, have been pretty incomplete over American history. There’s a few reasons for this, but essentially for a long time the answer wasn’t likely to come up, and when it did it was often in situations where Congress actually had spoken. But as José Oliva’s story demonstrates, that isn’t always the case.

Often the violation of a constitutional right will also be a standard tort, such as trespass or battery. Indeed, many older cases on these questions are trespass suits where a property owner sues an agent of the law for coming onto his land or into his home. The agent would argue that he had proper authority to be there, and the court would ask questions such as whether the agent was acting pursuant to a statute and whether that statute and/or the agent’s actions were constitutional. If the defense failed the property owner could then win damages.

Here the Constitution is involved, but the cause of action isn’t about the Constitution itself. The victim doesn’t really care about the distinction. Constitutional violations became more of an issue over time, though, for a couple of reasons.

One was that constitutional violations came to the fore that didn’t simply mirror common law duties. For example, after the First Amendment was given life in the early 20th century, you could sue the government for squelching your speech. That might have an economic component—such as a loss of business due to no advertising—but most likely it just doesn’t have a traditional tort analog. Yet, it’s still a big deal for which you deserve to be made whole. Imagine you hold a rally to protest police tactics and the police disperse it because they disagree with the message. That’s a constitutional tort if there ever was one.

A second reason was that suing officials became increasingly harder as immunities of various stripes took hold. Qualified immunity is currently the most famous of these, but it’s not at all the only one. Take Stephen Lara’s story. What the police did to him was parallel to the common law torts of false imprisonment and conversion (for detaining him and taking his money). But in most states these actions are incredibly hard to bring and win against a police officer, so most litigants opt for making a constitutional case out of it.

For victims of state officials, that avenue was opened by the Reconstruction Congress in 1871. The “Ku Klux Klan Act,” today known as “Section 1983,” allowed for a private right of action against “any person” who violates federal rights “under color of law,” although it lay mostly dormant until the Supreme Court revived it in 1961. It was a parliamentary solution: Congress passed a law explicitly allowing for lawsuits when a state official violates your rights. We can argue about whether Congress needed to, but because it did the Supreme Court now never has to consider creating a cause of action when state officials violate federal constitutional rights.

That still leaves suits against federal agents for violations of the U.S. Constitution. Congress hasn’t adopted a Section 1983 for the feds. And neither did “the people” when they adopted or amended the Constitution.

Do the courts have the power to craft such a cause of action as common law judges did for breaches of common law duties? Or even if they don’t, does the Constitution nevertheless imply such a cause of action as a necessary implication of the sovereign recognizing certain rights? Or is the crafting of a cause of action left to Congress, as such a “law” cannot exist until the legislature (think Parliament) creates it?

Higher Law in the States

Quite inexactly and somewhat inarticulately, the Supreme Court for a time in the 1970s said that the Constitution does imply at least some—namely three—of these causes of action.

The first was the one José Oliva tried to use, concerning the Fourth Amendment, in the case Bivens v. Six Unknown Federal Narcotics Agents. The others were, somewhat randomly, sex discrimination and deliberate indifference to medical needs in prison. But the court slowly pivoted to a much more parliamentary inclination, drawing a line in the sand at any new causes of action and undermining the existing ones. Some justices outright said Bivens was completely wrong and should be overturned, arguing that only Congress can create causes of action for damages whether that be regarding an act of Congress or the Constitution itself.

The court’s justification for this turn has been quite unsatisfactory. It says over and over again that only Congress can “make” law. Yet, in a constitutional context, Congress has not “made” anything, only the people have—indeed, the people made Congress! Why is there a presumption that the matter should fall to Congress at all?

Further, Article III of the Constitution says federal courts have the “judicial power.” That has meant since time immemorial the power to recognize remedies for violations of “the law.” Some of the justices have defended this by saying federal courts are not “common law courts” and therefore don’t have the power to make causes of action, like in the case of negligence. But the history of English courts creating causes of action for statutes belies this excuse.

This is parliamentary supremacy even beyond the actual “Parliament”—at least the one that existed when the Constitution was adopted.

Federalism for the Win

This recent parliamentary retrenchment is where José Oliva found himself when he sued those hospital guards. Taking the cue from the Supreme Court, the judges in his case said he had no implied cause of action, even though what happened to him was in principle no different from the narcotics agents who assaulted Mr. Bivens.

Just because the U.S. Supreme Court says one thing, though, doesn’t mean state supreme courts need to say the same under their own state constitutions. Under the American federalist system, states largely have the same separation of powers and the notions of sovereignty as the U.S. government. Thus, the same questions arise at the state level: If a state official violates the state constitution, can a victim sue them in state court if the legislature hasn’t explicitly provided for that cause of action? And, again, some states have said “yes.”

The reasoning in the states differ, but the bottom line is generally that once the people have recognized constitutional rights, those same people cannot be dependent on an inferior body—the legislature—to allow for the vindication of those rights. Higher law means higher law, and because common law courts—which state courts are—have traditionally had the power to create remedies without Parliament’s say-so, they can recognize a cause of action for violations of state constitutional rights. Further, Nevada’s ruling was additionally powerful because it rejected the doctrine of qualified immunity, making it much more likely that victims such as Stephen Lara can be made whole than even via Section 1983.

These state courts have therefore leaned into their common law roots and merged the higher law with traditional causes of action to produce what we today call “implied” causes of action. At a time when federal constitutional rights often aren’t vindicated even when Congress has spoken, this allows American constitutional federalism to give a leg up to liberty. And to people like Stephen Lara. One hopes that in time the federal courts will come to the same conclusion for those like José Oliva.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice. Twitter: IJSanders.