This image is a representation of the One Law Doctrine and how it controls the overlapping of state and federal laws. Use this as a visual guide to help you make sense of this vital subject.
What is the One Law Doctrine?
The One Law Doctrine is the American concept that each state has only one code of laws under which it operates and that code of laws incorporates the federal constitution and federal law as if that federal law were written directly into the state’s formal code of laws.
This concepts expresses the larger concept of federalism where the same physical territory is simultaneously governed by two or more sovereigns such as in America where the federal and state governments simultaneously exercise sovereignty over the same state geography and people. The people of each state are simultaneously governed by state and federal law and are protected by both the state and the federal constitutions working together in a specifically designed way.
While we often discuss state and federal laws as different things, this is only in the context of discussing different hierarchies of the one code of law and how these hierarchies operate both together and apart. For instance we often discuss federal law as a separate entity because in many ways federal law appears to operate in isolation from state law but it actually always acts in concert with state law.
In the American system, when federal law exists in a given area of law, that federal law is supreme over all state laws that may contradict or alter the federal law. When we seek state court resolution of federal questions of law, the state court is restricted to applying only federal law to the resolution of federal questions. This is because state legislatures have zero authority to alter, change, or override federal law; meaning that state statutes cannot meaningfully alter federal law and cannot be used to resolve the federal question.
The reverse is only true where there is no controlling federal law. There are many areas of state law that are the unique responsibility of state law, such as establishing property rights. Generally, only state law may establish a right to property, but once established, federal law determines when and how that property right may be denied.
Federal authority is limited to only those powers that are specifically granted to it in the federal constitution. All other rights and powers reside with the states and with the people. There are some areas of state law, provided it stays within constitutional limits, that are unique to state law and cannot be overridden by any element of federal law other than the federal constitution. While there are many areas of law over which the federal government has no authority to regulate, this concept does not apply to the federal constitution.
While the federal constitution is considered federal law, it is really much more than that. The federal constitution is the people’s law for the government and it was voted on by the people through a constitutional convention, not by the state governments. It expresses the direct will of the American people for how thier governments should function and sets limits beyond which those governments may not go. The Bill of Rights and the 14 Amendment express the people’s direct command that government, both state and federal, shall NOT exceed these boundaries.
When can state law operate independently from the federal constitution?
State law can never operate independently from the federal constitution, is the simple answer. The 14th Amendment holds that no state action of any kind by any state official can go beyond federal due process and equal protection limitations. Any state law which claims to exist beyond federal constitutional limitations simply is NOT binding law and cannot be legitimately enforced by any government at any level in this country.
The federal constitution itself holds that where the federal constitution grants the federal government authority to operate, that authority is the supreme authority of the people, directly granted. Where federal law or a federal constitutional provision applies, state law is always limited by that federal law. Limitations on state action by the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause are universal in their application to the exercise of state power of every kind whether it be legislative, executive, or judicial in nature. Sadly, many state judges are profoundly ignorant of this basic American law.
While there are many areas of law that are uniquely the domain of state law, the state only has authority over its own laws to the extent permitted by the federal constitution. This was not always the case, but the Fourteenth Amendment changed that and applies the federal constitution to limit state law; meaning state law cannot operate or even legitimately exist where it conflicts with the federal constitution.
Prior to the enactment of the Fourteenth Amendment, states were not generally limited by the terms of the federal constitution except as specifically established in that constitution. Now, with the ratification of the fourteenth amendment, our federal constitution, the direct will of the people, limits every government in this country and commands them NOT to exceed federal constitutional limits.
State governments still chafe at this restriction and regularly fight against its limitations on their power especially in traditional domains of state law such as domestic relations law or as it is more frequently called today, family law. However, the Fourteenth Amendment was ratified in 1868 under constitutional rules that the American people established through the constitutional convention of 1787. The Fourteenth Amendment is a supreme act of the people that imposes direct limitations on state governments and state governments have no lawful option other than to submit to this overriding authority over their sovereignty. To be clear, states and the federal government have zero sovereignty in their own right. In this country the people are sovereign and their government acts by the people’s leave. Its sovereignty extends no further than what the people permit.
What are examples of state constitutions submitting to the federal constitution?
Many state constitutions directly recognize this superior federal authority as, for example, in Article 1, Section 1 of the Texas Constitution which reads as follows:
Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.
In this initial clause of the Texas Bill of Rights, written in words that reflect the fiercely proud and independent nature of the Texas People, the State recognizes federal supremacy by articulating that the State’s sovereignty is “subject only to the Constitution of the United States.”
Does Family Law operate outside the federal constitution?
NO! Neither Family Law nor Domestic Relations Law can legitimately exist or operate outside of federal constitutional limitations on the exercise of state power. The fourteenth amendment limits ALL state power in every form and context that it may be expressed.
The United States Constitution established by the people of the United States declares itself, in the Supremacy Clause of Article VI, to be the supreme law of the land expressly overriding all contradictory state asserted authority by ending with this phrase, “anything in the Constitution or laws of any State to the contrary notwithstanding.” That “anything” undeniably includes domestic relations and family law.
What is the text of the Supremacy Clause?
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, anything in the Constitution or laws of any State to the contrary notwithstanding.
This clause makes federal law “supreme within its sphere of action.” With the ratification of the Fourteenth Amendment state action is directly limited under the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause, the federal constitution’s “sphere of action” was extended by these clauses to place absolute limits on the exercise of state authority in any form. State judges have zero immunity from the effects of these clauses.
In many ways, this action represents the profound success of the federal constitution in creating an American People from what was previously a collection of people aligned to their individual states. The Civil War and technilogical changes of that era fundamentally altered people’s general perception of their political allegiance.
No longer did people see themselves as citizens of their state and also part of a loose federal alliance. From the Civil War forward people began to see themselves as Americans, citizens of the United States first and foremost. The people expressed this idea in the Fourteenth Amendment by telling their state governments that from this point forward, there is only one single unifying code of law, while states may retain their individuality to a significant degree, where the core principles of the United States Constitution apply, there is only one nation, one law, and one voice of the people.
The Fourteenth Amendment represents the birth of our nation as a nation by memorializing in writing the profound and universal acceptance of the principles expressed in the United States Constitution as an expression of the will of the American People as one people against every form of government.
The People of these United States have declared that domestic relations law, family law, and every other aspect of state law is now subordinate to American Law in terms of the privileges and immunity of its citizens and those citizen’s profound respect for the principles of due process of law and equal application of the law. Even into the 21st century, state governments fiercely resist this loss of absolute sovereign control over their own affairs, but in America, it is NOT government that is sovereign but the people who are sovereign and when the people place limits on their governments, those governments must submit or become invalid.
What did Chief Justice Marshall say about the Supremacy Clause?
In probably the most famous of all Supreme Court cases, Chief Justice Marshall writing for the Court described the Supremacy Clause and its effect on state governments in the following way:
If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, this constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land, and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. -Marbury v. Madison
What does it mean that family law is the unique province of state law?
Family law is the unique province of state law because the federal government has only those powers granted to it in the federal constitution, all other powers being withheld by the people for the states or for the people. The people withheld the authority to regulate domestic relations from the federal government and reserved it to the power of state governments. However, the people did NOT grant the states unlimited power to regulate thier personal close family associations. That power to regulate close family associations is directly limited by the First Amendment thorugh the effects of the Fourteenth Amendment and directly limited in terms of the “Liberty” interest protected by the Fourteenth Amendment.
Other than in regulating federal territories, federal law provides no authority to grant divorces, child custody, or alimony. Neither can federal courts hear direct appeals regarding the exercise of this authority in their regular course of business. There is no source of authority that would permit congress to pass laws regulating these subjects other than the direct power granted to congress by the Fourteenth Amendment to regulate and punish violations of civil rights.
Federal courts have direct authority to adjudicate civil rights violations committed under authority of any feamily law code. The problems in this area are technical, having to do with Ex Parte Young, federalism, and comity. These technical limitations can be overcome but it is no easy task. We have been working diligently for over a decade developing a method to overcome these technical limitations and we believe we can now prevail in a federal civil rights suit but we need parents who are willing and able to take this path.
How do I counter my judge who claims family law is uniquely the province of state law?
In resisting the universal limitations of the Fourteenth Amendment, many family law judges will improperly apply the concept expressed in In Re Burrus to claim that they have absolute sovereignty over family law without federal constitutional limitation but they are wrong and they know it. They are just corrupt enough to force you to prove it though and you can with our help.
What is In Re Burrus and how does it effect my family law suit?
In Re Burrus is a Supreme Court opinion from 1890 that expresses the concept that the federal government cannot generall regulate divorce, child custody, or alimony directly. In re Burrus, 136 US 586, 594 (Supreme Court 1890), that “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States” to claim that they have absolute sovereignty over family law but they are wrong and they know it.
The larger quote from “In Re Burrus” is:
In the case before us there was no pretence that the child was restrained of its liberty, or that the grandfather withheld it from the possession and control of the father, under or by virtue of any authority of the United States, or that his possession of the child was in violation of the Constitution or any law or treaty of the United States. The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. As to the right to the control and possession of this child, as it is contested by its father and its grandfather, it is one in regard to which neither the Congress of the United States nor any authority of the United States has any special jurisdiction. Whether the one or the other is entitled to the possession does not depend upon any act of Congress, or any treaty of the United States or its Constitution
Many state judges will apply In Re Burrus to claim that the federal courts have no jurisdiction over family law matters but they are wrong for two specific reasons 1) Burrus addresses a very narrow question of law regarding only the jurisdiction to issue writs of habeas corpus against state court and 2) the Supreme Court has since declared that Burrus does NOT deprive the federal courts of this jurisdiction.
Any time you cite a case or are challenged with a case citation it is important to “Shepardize” the case for the precise issue the case is being cited to support.
What is Shepardizing?
Shepardizing a case refers to searching for subsequent cases that may refute, alter, or limit the meaning or the holding of the case you are citing.
How has family law in state courts been limited by caselaw?
In Shepardizing “In Re Burrus,” you will find that the Supreme Court limits the holding of “In Re Burrus” to the scope of habeas corpus only. The Court discusses instances where federal courts grant divorces and hear divorce appeals from federal territories and from the District of Columbia or DC. The Court clarifies that the limitation is NOT a general jurisdictional limitation and that the jurisdiction discussed in In Re Burrus applies only in the habeas corpus context.
Is there proof federal courts have jurisdiction in domestic relations?
The proof of this can be seen in Egle v. Egle, 715 F. 2d 999 (5th Circuit 1983) which is an appeal to a federal circuit court of a divorce decree that was issued by a federal district court in the Panama territorial district. If the federal courts had no jurisdiction over divorce and child custody then the district court could not have issued the divorce decree and child custody order and the Fifth Circuit could not have heard the appeal and could not have ruled that the father had a constitutional interest in preserving his relationship with his children.
In Ankenbrandt v. Richards, 504 US 689 (Supreme Court 1992), the Court provides a lengthy discussion of “In Re Burrus” and another case, Barber v. Barber, 62 US 582 (Supreme Court 1859) dealing with the same subject. The Court held that there is NO constitutional jurisdictional limitation preventing federal courts from addressing domestic relations or family law matters. The “jurisdictional” limitation is statutory only and goes only to the issuing of divorce decrees, child custody decrees, and alimony decrees, it does NOT in any way limit the federal courts from reviewing the constitutionality of those decrees. Further, this interpretation is one of respecting the authority of state courts, not one of absolute denial of jurisdiction.
How do I convince my attorney that the judge is limited by the constitution?
You counter your judge by objecting in the record and stating that the Judge is misapplying the precedent of In Re Burrus and is not recognizing the limitations the Court has applied to the holding in “In Re Burrus” through later holdings. It is an error in law and thus an abuse of discretion under federal law for the state court to imply from “In Re Burrus” that the state court is not fully limited by the Fourteenth Amendment’s mandates on state action.
Further, there is directly controlling precedent from the Supreme Court applying constitutional limitations on the “best interest of the child” determination made by a state child custody modification court where the Supreme Court directly holds that family law courts are directly limited by the Fourteenth Amendment. (this case law is available to our Gold Members) This case provides absolute controlling authority which your child custody court may NOT lawfully ignore.
When you use this precedent properly your child custody court either properly submits to federal controlling authority, or you prove in the record that your child custody court and chld custody judge are corrupt, biased, and acting as direct agents of the state legislature in a war against the federal constitution. (the Supreme Court uses the term war in relation to state officials who refuse to honor thier oaths.)
How can I apply these concepts as a political activist fighting for changes to state laws?
Over the years we have helpd a great many people and organziations become much more effective by framing thier activism in constitutional terms as well as providing strategic and tactical guidance to their activism efforts.
We have mirrored what women did in fighting for equality where they created an amendment to the constitution as a central organizing theme for a national movement. This amendment went through the amendment process and came within two state votes of being ratified. However, this proposed amendment still served its purpose as an organizing and galvinating national force, and women now have general legal equality with men through changes imposed by multiple federal court wins regarding this equal protection even without the ammendment becoming law.
The Parental Rights Amendment
We have created a parental rights amendment that has real teeth and that will make a real difference when ratified. There is anothe competing amendment out there, but they submit to the tyranny of the state deciding best interest. We absolutely do NOT submit to this tyranny and our amendment holds that the state cannot apply the best interest of the child policy unless the state has proven a parent to be unfit in a seperate and constitutionally adequate trial.
You can read the text of our parental rights amendment here. We also published a book titled Protecting Parent Child Bonds: The 28th Amendment that provides detailed explanation of the amendment’s terms. Activists can easily use this very inexpensive book as a way to tell legislators precisely which changes we want in child custody and family law. While this parental righta amendment is intended for the federal constitution, there is nothing at all preventing your state from adding it to their constitution. The process for amending state constitutions is much easier than the process for amending the federal constitution. Parental rights activists, mother’s rights activists, and father’s rights activists should all be united towards amending their State’s constitution with the terms found in our parental rights amendment.
An Open Letter to the American Judiciary
We have also written an open letter to the American Judiciary calling them out on their unconstitutional and illegal practices. The thing about the courts is that the only power they have is in their credibility and the respect we the people afford the courts. Exposing truths that undermine the credibility of the courts is the primary means by which the courts are subject to political correction. The courts either self correct or they implode and become ineffective. These are their only options under concentrated and unrelenting political pressure to do the right thing.
Today, you can reference this open letter through this link and share with your representitives, your judge, and those who you seek to influence. This open letter is the is the initial wedge that we can use to crack open the unlawful family court practices and force the judiciary to follow the law properly.
You can use this letter in its entirety in printed form so long as you include this link. This letter is intended to be widely shared, provided you include the link, so that we can create unified political pressure against the corrupt judiciary. The link is vital because not all judges are corrupt. Many are willing to change their ways if shown how. The link connects them with the proof of the unlawfulness of current practices and provides real world solutions that these judges can apply today in their courtrooms. If you want your judge to change they way they are treating you, you first need to get their attention, then you need to show them there are practical solutions that protect your rights and that protect the judges from attack by the corrupt judges. The open letter provides the wake-up call that gets their attention, the link provides them the solutions and protections.