We are about to switch into the section I have called "Your Constitution is Under Attack". I intend to give you several real life events that have occurred within this year which have involved government action which has been unconstitutional, yet has gone unchallenged. I do not intend to present anything that is not supported by actual court documents. This implies that I will be presenting to you a fairly detailed trail of events. My thought is that it will be helpful to you if I first go over the judicial framework on which this country works. There are two separate, though intertwined legal systems in our country, state and federal. Each state has its own distinct system including its own set of laws, its own constitution, and its own courts. A state court can generally hear any case concerning its own citizens.
Unlike the state courts, the federal courts are limited to cases involving federal law, cases in which the Federal government is a party, cases between states, and cases in which the parties are from different states. Cases where the parties are from different states can be brought in a state court, but the defendant has the right to remove the case to federal court if he so desires.
In both systems, access to the court is not free. There are both court fees and attorney's fees. Generally, the court itself will waive fees for indigents, but everyone is on their own regarding attorney's fees. If you are suing an insurance company, you can generally get an attorney to take your case on a contingency, but otherwise you are on the hook yourself. If you win, the court may award you attorneys fees to be paid by the other party, but if you lose your attorney fees just increased your total loss. This risk is a significant damper for people going to court.
In both systems, there are local courts, appellate courts, and a supreme court. The vast majority of cases start at the local court. The appellate court only gets involved if one of the parties believes the verdict returned at the local court is wrong, and he or she will get a better verdict at the appeal court. In those cases, the party will have to again weigh the probability of winning against the cost of the trial. If a party is still not satisfied with the appellate verdict, he can appeal again to the supreme court, assuming he is willing to make yet another gamble on the cost.
One thing that should be abundantly obvious is that rich people have the advantage. It is also true that there a number of non-profits who do nothing but help the average Joe with legal fees on Constitutional matters. Trump is flooding the legal system, which in turn means that expert legal assistance is hard to come by.
All courts follow three references for deciding a case. Constitution, Laws, and Precedent. All courts are required to consider BOTH federal law, and the relevent state law in every case. In state courts, there is a potential third level of appeal. If a case in state court goes all the way to that states supreme court, and the case is determined based on the federal law, or the federal constitution, it can be appealed to the U. S. Supreme Court, though that court does not have to accept the appeal.
Precedent is a very important part of the scheme by which courts make a decision. Succinctly, what it means is the decisions of previous courts at the appellate, or supreme court level, when dealing with a similar fact pattern. The courts make a great effort to return consistent verdicts over both time and space. They manage this by investing a great deal of time and effort into researching previous cases for ones that are similar to what is in front of them. A decision at the U. S. Supreme Court level is binding on all courts nationwide. Overtime, we end up with a body of law, much of which was never passed as law by any legislature. It is court written law.