CONSTITUTIONAL LAW
The written text of the state and federal constitutions. The body of judicial precedent that has gradually developed through a process in which courts interpret, apply, and explain the meaning of particular constitutional provisions and principles during a legal proceeding. Executive, legislative, and judicial actions that conform with the norms prescribed by a constitutional provision.
The text of the U.S. Constitution is marked
by four characteristics: a delegation of power, in
which the duties and prerogatives of the executive,
legislative, and judicial branches are delineated
by express constitutional provisions; a
SEPARATION OF POWERS, in which the responsibilities
of government are divided and shared
among the coordinate branches; a reservation of
power, in which the sovereignty of the federal
government is qualified by the sovereignty
reserved to the state governments; and a limitation
of power, in which the prerogatives of the
three branches of government are restricted by
constitutionally enumerated individual rights,
UNENUMERATED RIGHTS derived from sources
outside the text of the Constitution, and other
constraints inherent in a democratic system
where the ultimate source of authority for government
action is the consent of the people.
In deciding their cases, courts look to these
constitutional provisions and principles for
guidance. Once a court has interpreted a constitutional
provision in a certain fashion, it
becomes a precedent. Under the doctrine of
STARE DECISIS, the judicial branch is required to
adhere to existing precedent in all future cases
presenting analogous factual and legal circumstances,
unless it has a compelling reason for
deviating from the precedent or overruling it.
A state or federal law is said to be constitutional
when it is consistent with the text of a
constitutional provision and any relevant judicial
interpretations. A law that is inconsistent
with either the written text or judicial interpretation
of a constitutional provision is unconstitutional.
The Constitution
The U.S. Constitution is the highest law in
the land and the foundation on which all U.S.
law has been built. By establishing a structure for
the federal government and preserving certain
areas of sovereignty for the states, the Constitution
has created a system of government that has
allowed every area of civil, criminal, and ADMINISTRATIVE
LAW to evolve with the needs of society.
The federal Constitution became binding on
the U.S. people in 1788 when New Hampshire,
pursuant to Article VII, became the ninth state
to vote for ratification.
The federal Constitution comprises seven
articles and 26 amendments. Articles I, II, and
III set forth the basic structure of the U.S. government.
Article I defines congressional lawmaking
powers, Article II sets forth the presidential
executive powers, and Article III establishes
federal judicial powers. The first ten
amendments to the U.S. Constitution, known
as the BILL OF RIGHTS, enumerate certain individual
liberties that must be protected against
government infringement. The rest of the Constitution
contains miscellaneous other provisions,
many of which are intended to maintain a
federalist system of government in which the
federal Constitution is the supreme law of the
land and the federal government shares sovereignty
with the states.
Article I: The Lawmaking Power Article I of
the Constitution allocates the lawmaking power
to Congress. Section 1 provides that “[a]ll legislative
Powers herein granted shall be vested in
a CONGRESS OF THE UNITED STATES, which shall
consist of a Senate and a House of Representatives.”
Article I also requires that candidates running
for the House of Representatives be elected
directly by the residents of each state. Originally,
Article I endowed the state legislatures with the
power to choose members of the Senate. However,
the SEVENTEENTH AMENDMENT now
requires all senators to be elected directly by the
people of their home state.
Section 8 enumerates specific lawmaking
powers that Congress may exercise. These
include the power to declare war; raise and support
armies; provide and maintain a navy; regulate
commerce; borrow and coin money;
establish and collect taxes; pay debts; establish
uniform laws for immigration, naturalization,
and BANKRUPTCY; and provide for the common
defense and GENERAL WELFARE of the United
States. Both the Senate and the House must
approve all bills before they are submitted to the
president. If the president vetoes a bill, Section 7
authorizes Congress to override the VETO by a
two-thirds vote in both houses. Because Congress
is a public body, this article requires the House
and Senate to record and publish its proceedings,
including the votes made by any of its members.
Section 8 also grants Congress the power to
pass all laws that are “necessary and proper” to
the performance of its legislative function. In
MCCULLOCH V. MARYLAND, 17 U.S. (4 Wheat.)
316, 4 L. Ed. 579 (1819), the Supreme Court
broadly interpreted the NECESSARY AND PROPER
CLAUSE to grant Congress the implied powers to
enact all laws that are useful, convenient, or
essential to fulfilling its lawmaking and fiscal
responsibilities. THOMAS JEFFERSON had earlier argued that the Necessary and Proper Clause
authorized Congress only to enact measures that
are indispensable to the implementation of the
enumerated powers.
Congress frequently relies on its authority to
regulate commerce as a justification for the legislation
it enacts. Section 8 gives Congress the
“power to regulate commerce among the several
states.” In GIBBONS V. OGDEN, 22 U.S. (9 Wheat.)
1, 6 L. Ed. 23 (1824), the Supreme Court ruled
that congressional power to regulate commerce
is plenary (complete in itself) and extends to all
interstate commerce (commercial activity that
concerns more than one state). The Court said
that intrastate commerce (commercial activity
that is conducted exclusively within one state) is
beyond the reach of this congressional power.
Congressional commerce power reached its
zenith in Wickard v. Filburn, 317 U.S. 111, 63 S.
Ct. 82, 87 L. Ed. 122 (1942), where the Supreme
Court ruled that Congress has authority to regulate
a family farm that produces and consumes
its own wheat. The Court said that “even if [a
farm’s] activity be local, and though it may not
be regarded as commerce, it may still . . . be
reached by Congress, if it exerts a substantial
economic effect on interstate commerce . . . irrespective
of whether such effect [is] direct or
indirect.”
This seemingly unfettered power was later
limited, in United States v. Lopez, 514 U.S. 549,
115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), where
the Supreme Court ruled that mere possession
of a gun at or near a school does not substantially
affect interstate commerce and may not be
regulated at the federal level. Although the interstate
commerce power has been given an expansive
reading in modern times, the Court said in
Lopez, the scope of congressional authority in
this area
must be considered in light of our dual system
of [state and federal] government and
may not be extended so as to embrace effects
upon interstate commerce so indirect and
remote that to embrace them, in view of our
complex society, would effectually obliterate
the distinction between what is national and
what is local and create a completely centralized
government.
Article I of the Constitution not only delegates
specific powers to Congress, it also forbids
Congress to take certain action. Section 9, for
example, prohibits Congress from passing bills
of attainder and EX POST FACTO LAWS. (A bill of
attainder is a legislative act that imposes punishment
on a party without the benefit of a judicial
proceeding. An ex post facto law makes criminal
or punishes conduct that was not illegal at the
time it occurred.) Section 9 further prohibits
Congress from suspending HABEAS CORPUS (a
citizen’s right to protection against illegal
imprisonment) except as may be necessary to
preserve national security in time of rebellion or
invasion. Although the Constitution delegated
this power to Congress, President ABRAHAM
LINCOLN suspended habeas corpus during the
Civil War without congressional assent. Article I
also restricts the power of state legislatures, such
as the power to make treaties, alliances, and confederations,
are also prohibited by Article I.
Article II: The Executive Power Congressional
power is not absolute. The Framers of the
Constitution were familiar with the abuses of
absolute power. In the century preceding the
American Revolution, Parliament acquired
unlimited sovereignty. This arrangement
replaced an earlier system of government in
which the English monarchy ruled with a tyrannical
scepter. In the United States, the Framers
sought to create a system of checks and balances
in which the executive and legislative branches
would share power with each other and with the
judiciary. In this light, many of the powers delegated
to the president must be viewed in conjunction
with the powers delegated to the
coordinate branches of government.
Article II provides that “[t]he executive
Power shall be vested in a President of the
United States . . . [who] shall hold . . . Office during
the Term of four Years . . . together with the
Vice President.” The ELECTORAL COLLEGE,
which provides the method by which the president
and vice president are elected, derives its
constitutional authority from Article II as well as
from the Twelfth and Twenty-third Amendments.
The TWENTY-SECOND AMENDMENT limits
the president to two terms in office, and the
Twentieth and Twenty-fifth Amendments set
forth the order of succession for presidents who
are unable to begin their term or continue in
office.
Article II, Section 2, makes the president the
commander in chief of the armed forces. Yet
only Congress has the power to declare war.
Between these two powers lies a gray area in
which presidents have exercised the prerogative
to commit U.S. troops to foreign military excursions
without congressional approval. The U.S.
involvement in the VIETNAM WAR resulted from one such exercise of power. In response to these
executive maneuvers, Congress passed the War
Powers Resolution (Pub. L.No. 93-148 [ codified
at 50 U.S.C.A. §§ 1541 et seq.]), which restricts
the president’s authority to involve the United
States in foreign hostilities for more than 60 days
without the approval of Congress.
The president also shares power with Congress
in other areas under Article II. Section 2
authorizes the president to make treaties with
foreign governments, but only with the advice
and consent of the Senate. The president must
also seek senatorial approval when appointing
ambassadors; federal judges, including Supreme
Court justices; and other public ministers.
Section 4 states that the president may be
removed from office only through IMPEACHMENT
for “Treason, Bribery, or other High
Crimes and Misdemeanors.” The House is
responsible for drafting ARTICLES OF IMPEACHMENT
(accusations of misconduct), and the Senate
is responsible for holding an impeachment
trial. A two-thirds vote in the Senate is required
for conviction.
The United States revisited the issue of what
constitutes a High Crime and Misdemeanor during
the impeachment proceedings against President
WILLIAM JEFFERSON CLINTON. In 1998 the
U.S.House of Representatives approved two articles
of impeachment against President Clinton,
accusing the president of having committed the
crimes of perjury and OBSTRUCTION OF JUSTICE
to conceal his relationship with a White-House
intern named Monica Lewinsky. The impeachment
trial was then held before the Senate from
January 7, 1999, through February 12, 1999.
Clinton supporters generally opposed
impeachment on grounds that concealing a private,
extramarital affair should not constitute an
impeachable high crime or misdemeanor. Clinton
detractors generally supported impeachment
on grounds that perjury and obstruction
of justice are felony-level offenses that render a
chief executive who is guilty of such offenses
incompetent to discharge the duties of his office.
Clinton supporters contended that past presidents
had concealed their extramarital affairs
without it rising to the level of an impeachable
offense, while Clinton detractors countered by
arguing that the president was not being
impeached for having an extramarital affair but
for committing crimes to conceal it.
Scholars debated the merits of the Clinton
impeachment proceedings as well. However,
constitutional historians on both sides of the
debate generally agreed that the phrase High
Crimes and Misdemeanors had no settled usage
at the time the Constitution was ratified by the
states, except that the Founding Fathers rejected
proposals that would have allowed for impeachment
in cases of maladministration, malpractice,
or neglect of duty. The Founding Fathers favored
a chief executive who was subject to constitutional
checks and balances, but not one who was
weak and easy to remove by political opponents.
In the end, the Senate voted to acquit President
Clinton. Neither article of impeachment was
supported by even a majority of votes, far short
of the 67 votes required to convict.
Although the president participates in the
lawmaking process by preparing budgets for
congressional review, recommending legislation
on certain subjects, and signing and vetoing bills
passed by both houses, no formal lawmaking
powers are specifically delegated to the EXECUTIVE
BRANCH. The president nonetheless “legislates”
by issuing executive orders, decrees, and
proclamations. No express provision of the
Constitution delineates the parameters of this
executive lawmaking power. However, in
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343
U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the
Supreme Court set forth some guidelines.
Known as the Steel Seizure case, Youngstown
examined the issue of whether the president of
the United States could order the government
seizure of steel mills that were crippled by a
labor strike during the KOREAN WAR. In holding
the EXECUTIVE ORDER unconstitutional, the
Supreme Court ruled that “the President’s power
to see that the laws are faithfully executed refutes
the idea that [the president] is to be a lawmaker.”
Justice ROBERT H. JACKSON, in a concurring
opinion, set forth an analysis by which the
Supreme Court has subsequently evaluated the
constitutionality of presidential action. Jackson
opined that PRESIDENTIAL POWERS are not
fixed, but fluctuate according to “their disjunction
or conjunction with those of Congress.”
When the president acts pursuant to congressional
authorization, the action carries maximum
authority. When the executive acts
contrary to congressional will, presidential powers
are at their lowest ebb. Between these positions,
when a president faces an issue on which
Congress is silent, the executive acts in “a zone of
twilight in which [the president] and Congress
may have concurrent authority, or in which the distribution is uncertain.” In such instances,
Jackson reasoned, courts must balance the interests
of the parties and of society to determine if
a particular executive action has violated the
separation of powers.
Another area that has stirred debate over the
appropriate separation of powers involves the
delegation of legislative, executive, and judicial
authority to federal administrative bodies. Since
the mid-1930s, the United States has seen an
enormous growth in the administrative state.
Administrative agencies have been created to
establish, evaluate, and apply rules and policies
over a diverse area of law, including taxes, SECURITIES,
transportation, antitrust, the environment,
and employment relations. Federal
administrative bodies are created by statute, and
Congress has the authority to prescribe the qualifications
for administrative officials who are
appointed by the president, courts of law, and
heads of government departments.
The NATIONAL LABOR RELATIONS BOARD
(NLRB) demonstrates the overlapping powers
that may be exercised by an administrative body.
The NLRB is empowered by statute to issue regulations
that govern union activities. Such regulations
are virtually indistinguishable from
legislative enactments and are considered no less
authoritative. The NLRB also adjudicates disputes
between unions and employers, with an
administrative law judge presiding over such
cases. Finally, the NLRB is endowed with the
power to make prosecutorial decisions, a power
traditionally exercised by the executive branch.
Although successful challenges have been lodged
against the delegation of certain powers to federal
administrative bodies, by and large, the
Supreme Court has permitted administrative
officials and agencies to play all three government
roles.
Article III: The Judicial Power Article III
provides that “[t]he judicial Power of the United
States, shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from
time to time ordain and establish.” Pursuant to
this constitutional authorization, Congress has
created a federal judicial system comprising a
lower tier of federal trial courts, known as the
U.S. district courts, and an intermediate tier of
federal appellate courts, known as the U.S.
COURTS OF APPEALS. At least one federal district
court is located in each of the 50 states.
The federal appellate courts consist of 11
numbered circuit courts plus the Court of
Appeals for the District of Columbia and the
Court of Appeals for the Federal Circuit. Each
federal appellate court has jurisdiction over a
certain geographic area and may only hear
appeals from federal district courts within that
jurisdiction. Specialized courts of appeals have
been created to hear appeals concerning such
disputes as international trade (the court of
International Trade) and military matters (the
Court of Military Appeals). Parties aggrieved by
a decision made by any of these federal appellate
courts may appeal their case to the Supreme
Court, which has the ultimate judicial power.
Cases that originate in state court and present a
federal question may also be appealed to the U.S.
Supreme Court.
The Supreme Court is not required to hear
every case that is appealed to it; instead, the
Court has broad discretion to accept or decline
cases that are appealed by a lower court. Only
four justices need to vote in favor of hearing an
appeal before a writ of certiorari will be granted.
Certiorari is a device that allows the Supreme
Court to call up the records of a lower court and
review them in order to identify important legal
questions that need to be resolved. Granting
“cert” has no bearing on the Court’s subsequent
resolution of a case. The Court is asked to review
about 5,000 cases a year and grants certiorari in
less than 250 of them.
Federal courts do not have jurisdiction to
hear every kind of lawsuit.Article III lists certain
types of cases that may be heard by the federal
judiciary, including cases arising under the Constitution;
under treaties with foreign nations;
and under federal laws passed by Congress, the
executive, or an administrative body. Federal
courts also have jurisdiction to hear lawsuits
between two or more states, between citizens of
different states, and between a citizen or government
of one state and a citizen or government of
a foreign country.
The Supreme Court has original jurisdiction
over cases involving ambassadors and other
public ministers as well as cases in which a state
government is a party. Original jurisdiction
gives a court the power to hear a lawsuit from
the beginning, rather than on appeal. This grant
of original jurisdiction does not preclude Congress
from giving original jurisdiction to other
courts over the same matters. In fact, Congress
has granted concurrent original jurisdiction to
the federal district courts for all controversies
except those between state governments.
Nowhere in Article III, or elsewhere in the
Constitution, is the power of the federal judiciary
defined. Historically, the role of English and
U.S. courts was to interpret and apply the laws
passed by the other two branches of government.
At the close of the eighteenth century, it
was unclear whether that role included the prerogative
of JUDICIAL REVIEW, which is the
authority of state and federal courts to review
and invalidate laws passed by legislatures that
violate a constitutional provision or principle.
In MARBURY V. MADISON, 5 U.S. (1 Cranch)
137, 2 L. Ed. 60 (1803), the U.S. Supreme Court
clarified this AMBIGUITY by pronouncing that it
“is emphatically the duty of the judicial department
to say what the law is. Those who apply the
rule to particular cases, must of necessity
expound and interpret the rule. If two laws conflict
with each other, the court must decide on
the operation of each.” Because the federal Constitution
is the supreme law of the land, the
Court reasoned, any laws that violate the Constitution
must be declared void. It was the
essence of judicial duty, the Court intimated, for
judges to evaluate the constitutionality of a particular
act, because judges are not elected and
are therefore independent from the political
considerations that may have motivated the
popular branches of government to enact that
law. The Court reasoned that the executive and
legislative branches could not be impartial
arbiters of their own laws.
The Bill of Rights
When the U.S. Constitution was ratified by
the states in 1789, it contained no bill of rights.
During the last days of the Constitutional Convention,
one of the delegates proposed that a bill
of rights be included, but this proposal was
voted down by every state.Many Framers of the
Constitution believed that there was no need for
a bill of rights because the powers of Congress
and of the president were explicitly enumerated
and limited, and no provision of the Constitution
authorized any branch of government to
invade the personal liberties of U.S. citizens.
Other Framers were concerned that any list
of rights would be hopelessly incomplete and
that the government would deny any liberties
left unmentioned. This concern was ultimately
expressed by the NINTH AMENDMENT to the U.S.
Constitution, which provides that “[t]he enumeration
in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.” The Ninth Amendment
was later relied on by the Supreme Court
to recognize the unenumerated right of married
adults to use BIRTH CONTROL (GRISWOLD V.
CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14
L. Ed. 2d 510 [1965]).
By 1791, the need for a bill of rights was
viewed in a different light. The residents of the
states soon realized that government by the will
of the majority not only achieved democracy, it
sometimes achieved majoritarian tyranny. The
system of checks and balances created by the
original Constitution was insufficient to avoid
the pitfalls of absolute power endemic to the
English form of government that the American
colonists had overthrown. A bill of rights was
needed to serve as a bulwark between individual
liberty and ARBITRARY government power.
As with each of the 26 amendments to the
Constitution, the Bill of Rights was proposed by a
two-thirds majority in both houses of Congress
and ratified by three-fourths of the states as
required by Article V. The Bill of Rights, which
comprises the first ten amendments to the Constitution,
contains both procedural and substantive
protections. In some instances, these protections
guarantee the right to do, say, or believe something
without government interference. In other
instances, these protections guarantee the right to
refrain from doing, saying, or believing something
without government coercion.
The first three amendments provide substantive
protections. The FIRST AMENDMENT
guarantees FREEDOM OF SPEECH, press, religion,
assembly, and petition. The Free Speech Clause
protects “thoughts that we hate” (United States v.
Schwimmer, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed.
889 [1929] [Holmes J., dissenting]). Such
thoughts can be expressed verbally, as in a
racially derogatory remark, or in writing, as in a
Marxist-Leninist pamphlet denouncing the U.S.
government, and still receive First Amendment
protection. The First Amendment also protects
certain symbolic expression, such as burning the
U.S. flag in protest over government policy
(TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct.
2533, 105 L. Ed. 2d 342 [1989]). The Supreme
Court has ruled that no political speech may be
curtailed by the government unless it presents a
CLEAR AND PRESENT DANGER of imminent lawless
action (Brandenburg v. Ohio, 395 U.S. 444,
89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]).
The Free Press Clause prohibits the government
from censoring news stories in the print and electronic media merely because the content
is critical of the government. However, the
Founding Fathers did not agree on the definition
of censorship.
A majority of the Founding Fathers adhered
to the English COMMON LAW view articulated in
the eighteenth century by SIR WILLIAM BLACKSTONE,
who equated a free press with the doctrine
of no PRIOR RESTRAINT. This doctrine
provides that a publication cannot be suppressed
by the government before it is released to the
public.Nor can publication of something be conditioned
upon judicial approval before its release.
While the English common law prohibited
prior restraint, it permitted prosecution for
libelous and seditious material after publication.
Thus, the law protected vituperative political
publications only insofar as the author was prepared
to serve time in jail or pay a fine for
offending the sensibilities of the wrong person.
A minority of Founding Fathers adhered to the
view articulated by JAMES MADISON, who said that
The security of the freedom of the press
requires that it should be exempt, not only
from previous restraint of the executive, as in
Great Britain; but from legislative restraint
also; and this exemption, not only from the
previous inspection of licensers, but from the
subsequent penalty of laws.
Madison was concerned that authors would be
deterred from writing articles assailing governmental
activity if the government was permitted
to prosecute them following release of their
works to the public.
In NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct
625, 75 L. Ed. 2d 1357 (1931), the Supreme
Court incorporated the doctrine of no prior
restraint in First Amendment JURISPRUDENCE,
when it ruled that under the Free Press Clause
there is a constitutional presumption against
prior restraint which may not be overcome
unless the government can demonstrate that
CENSORSHIP is necessary to prevent a clear and
present danger of a national security breach. In
NEW YORK TIMES V. UNITED STATES, 403 U.S.
713 92 S.Ct 2140, 29 L. Ed.2d 822 (1971) the
Court applied this presumption against the
United States JUSTICE DEPARTMENT which had
sought an INJUNCTION to prevent the publication
of classified material revealing the secrecy
and deception behind American involvement in
the Vietnam War. If this classified material, also
known as the Pentagon Papers, had threatened
American troops by disclosing their location or
movement, the Court said, publication would
not have been permitted.
The Supreme Court’s interpretation of the
Free Press Clause has also gone a long way
toward adopting Madison’s sentiments against
subsequent punishments for publishers of materials
criticizing public officials. In a series of
cases the Supreme Court has held that the First
Amendment protects media outlets from being
held liable in civil court for money damages
merely because a published story contains an
inaccuracy or falsehood about a public official.
The Supreme Court has ruled that the media are
immune from LIBEL actions brought by public
officials unless the plaintiff can demonstrate
that a particular story was printed or aired with
knowledge that it was false or in reckless disregard
of its veracity, a principle that has become
known as the “actual-malice” standard (NEW
YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct.
710, 11 L. Ed. 2d 686 [1964]). Finally, the media
cannot be punished with civil or criminal sanctions
for publishing pornographic material
unless that material rises to the level of OBSCENITY
(MILLER V. CALIFORNIA, 413 U.S. 15, 93 S.
Ct. 2607, 37 L. Ed. 2d 419 [1973]).
The First Amendment contains two religion
clauses. One guarantees the free exercise of religion.
In most instances, the Free Exercise Clause
prohibits the government from compelling a
person to act contrary to his or her religious
beliefs. For example, in Wisconsin v. Yoder, 406
U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972),
the Supreme Court held that a state cannot
compel Amish parents to send their children to
school past the eighth grade when doing so
would violate their religious faith. However, in
Reynolds v. United States, 8 U.S. 145, 25 L. Ed.
244 (1879), the Supreme Court refused to
exempt Mormons from a federal law against
bigamy, reasoning that POLYGAMY was more a
religious practice than a religious belief.
The other religion clause in the First
Amendment prohibits the government from
establishing religion. The Framers drafted the
Establishment Clause to prevent the federal government
from passing legislation that would
create an official national church in the United
States as Great Britain had done with the Anglican
Church in England. Since the early 1970s,
the Supreme Court has applied the Establishment
Clause more broadly to strike down certain
forms of government assistance to religion,
such as financial aid. Such assistance will be invalidated unless the government demonstrates
that it has a secular purpose with a primary
effect that neither advances nor inhibits religion
nor fosters excessive entanglement between government
and religion (Lemon v. Kurtzman, 403
U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 [1971]).
The Second and Third Amendments also
provide substantive protections. The SECOND
AMENDMENT acknowledges that a “well regulated
Militia” is “necessary to the security of a
free State,” and guarantees “the right of the people
to keep and to bear Arms.” The right to bear
arms is not absolute. It restricts only federal laws
regulating the use and possession of firearms
and has no applicability to state governments
(Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29
L. Ed. 615 [1886]). In addition, Congress may
prohibit the possession or use of a firearm that
lacks any reasonable relationship to the preservation
or efficiency of a well-regulated militia
(United States v. Miller, 307 U.S. 174, 59 S. Ct.
816, 83 L. Ed. 1206 [1939]). Federal courts have
interpreted the term militia to include only military
groups that are organized by the state governments,
such as the NATIONAL GUARD, and to
exclude private military groups that are not
associated with the government, such as the
Kansas POSSE COMITATUS (United States v.
Oakes, 564 F.2d 384 [10th Cir. 1977]).
The THIRD AMENDMENT, which is an outgrowth
of the American Revolution, prohibits
the government from compelling homeowners
to house soldiers without their consent.
Although the Supreme Court has never decided
a case that directly involved the forced quartering
of soldiers, the Court of Appeals for the Second
Circuit ruled that the Third Amendment’s
protections apply to the National Guard (Engblom
v. Carey, 724 F.2d 28 [2d Cir. 1982]).
The Fourth, Fifth, Sixth, Seventh, and Eighth
Amendments contain a mixture of procedural
and substantive rights. Most of the procedural
rights pertain to CRIMINAL LAW. As such, these
rights offer protection against unconstitutional
actions taken by government bodies and officials,
such as law enforcement agencies and agents.
These rights do not offer protection against action
taken by private citizens unaffiliated with the government.
For example, the FOURTH AMENDMENT
prohibits the government from performing
unreasonable SEARCHES AND SEIZURES and from
issuing warrants on less than PROBABLE CAUSE.
The procedural requirements of the Fourth
Amendment protect homes, papers, and other
personal belongings in which an individual can
demonstrate a “reasonable expectation of privacy”
(Katz v. United States, 389 U.S. 347, 88 S. Ct. 507,
19 L. Ed. 2d 576 [1967]).
The FIFTH AMENDMENT offers procedural
safeguards to criminal defendants and suspects.
It provides that no person shall be held to answer
for a capital or infamous offense unless first
indicted by a GRAND JURY. The Fifth Amendment
further safeguards defendants from being
“twice put in jeopardy of life or limb” for the
“same offence.” It also prohibits the government
from compelling someone to incriminate himself
or herself. The right to be apprised of many
of these procedural protections during custodial
police interrogations, through what are known
as Miranda warnings, is derived from the Fifth
Amendment (MIRANDA V. ARIZONA, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).
The SIXTH AMENDMENT provides a panoply
of procedural protections for criminal defendants.
Under the Sixth Amendment, defendants
are entitled to notice of any criminal accusations
against them. The Sixth Amendment guarantees
the right to a jury trial for all crimes more serious
than a petty offense. The Sixth Amendment guarantees
the right to be represented by an attorney
during a criminal proceeding and entitles indigent
defendants to a state-appointed lawyer when
they are charged with a misdemeanor or more
serious offense (GIDEON V. WAINWRIGHT, 372
U.S. 355, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). A
defendant’s right to a speedy and public trial in
which she or he can cross-examine adverse witnesses
and subpoena favorable witnesses is also
protected by the Sixth Amendment.
The protections offered by the EIGHTH
AMENDMENT are more substantive. This amendment
forbids the government from inflicting a
punishment that is “cruel and unusual.” The
Eighth Amendment also prohibits the government
from setting bail in an excessive amount
and from imposing a fine that is disproportionate
to the seriousness of the crime. Under the
CRUEL AND UNUSUAL PUNISHMENTS CLAUSE,
the Supreme Court has ruled that it is not necessarily
unconstitutional for the government to
execute a mentally retarded person (Penry v.
Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L.
Ed. 2d 256 [1989]) or a juvenile above the age of
15 (Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct.
2969, 106 L. Ed. 2d 306 [1989]).
Some of the protections offered by the Bill of
Rights apply to civil proceedings. For example, the SEVENTH AMENDMENT guarantees the right
to a jury trial in civil “Suits at common law.” In
condemnation proceedings, the Fifth Amendment
recognizes the power of EMINENT
DOMAIN, by which the government may appropriate
a piece of property owned by a private
citizen and convert it to a public use. Concomitantly,
the Fifth Amendment guarantees the
right to “just compensation” for private
landowners when the government exercises its
power of eminent domain.
Due Process Clauses
Of all the liberties protected by the Bill of
Rights, none has been a greater source of constitutional
litigation than DUE PROCESS. The Fifth
Amendment provides that no person shall be
deprived of “life, liberty, or property, without
due process of law.” The Supreme Court has
interpreted this provision to regulate actions
taken by only the federal government, not the
state governments (BARRON V. BALTIMORE, 32
U.S. [7 Pet.] 243, 8 L. Ed. 672 [1833]).
Broadly speaking, the Due Process Clause of
the Fifth Amendment guarantees litigants the
right to be informed of any legal action being
taken against them, and the opportunity to be
heard during a fair proceeding in which they
may assert relevant claims and defenses. Specifically,
many procedural protections have been
recognized by the Supreme Court as essential to
the concept of due process. For example, in
criminal cases, the Due Process Clause requires
that the prosecution prove its case BEYOND A
REASONABLE DOUBT before a conviction may be
obtained. In civil cases, the Due Process Clause
prohibits a court in one state from asserting
jurisdiction over a resident in another state
unless that resident has sufficient contacts with
the jurisdiction in which that court sits.
The FOURTEENTH AMENDMENT also contains
a Due Process Clause. Whereas the Due
Process Clause of the Fifth Amendment regulates
only the federal government, the Due
Process Clause of the Fourteenth Amendment
regulates actions taken by state governments.
During the twentieth century, the Supreme
Court interpreted the Due Process Clause of the
Fourteenth Amendment to make most of the
liberties enumerated in the Bill of Rights applicable
to the states.
Through a series of decisions, the Supreme
Court has ruled that certain liberties guaranteed
in the Bill of Rights are too fundamental
to be denied protection by the state governments.
Only the right to bear arms, the right to
be indicted by a grand jury, the right to a jury
trial in civil cases, the right against excessive
bail and fines, and the right against involuntary
quartering of soldiers have not been made
applicable to the states. Because these constitutional
guarantees remain inapplicable to state
governments, the Supreme Court is said to
have selectively incorporated the Bill of Rights
into the Due Process Clause of the Fourteenth
Amendment.
The Supreme Court has interpreted the Due
Process Clauses to have a substantive content in
addition to their procedural content. Procedurally,
due process prescribes the manner in
which the government may deprive persons of
their life, liberty, or property. In short, the procedural
guarantees of due process entitle litigants
to fair process.
Substantively, the Due Process Clauses of the
Fifth and Fourteenth Amendments protect persons
from legislation infringing on certain individual
rights. Such individual rights may be
expressly enumerated in a constitutional provision,
as are the liberties that are enumerated in
the Bill of Rights and have been incorporated
into the Due Process Clause of the Fourteenth
Amendment. Since DRED SCOTT V. SANDFORD,
60 U.S. (19 How.) 393, 15 L. Ed. 691 [1856]),
where the Supreme Court recognized a slave
owner’s property interest in his slaves, the Due
Process Clauses have been interpreted to protect
other liberties that are not expressly enumerated
in any provision of the federal Constitution.
These unenumerated rights have been
derived from Supreme Court precedent, common
law, history, and moral philosophy. Such
rights, the Court said, “represent the very
essence of ordered liberty” and embody “principles
of justice so rooted in the traditions and
conscience of our people as to be ranked fundamental”
(Palko v. Connecticut, 302 U.S. 319, 58 S.
Ct. 149, 82 L. Ed. 288 [1937]). Since the mid-
1960s, the Supreme Court has relied on the concept
of SUBSTANTIVE DUE PROCESS to establish a
general right to privacy that protects a woman’s
decision to terminate her pregnancy under certain
circumstances (ROE V. WADE, 410 U.S. 113,
93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).
Equal Protection Clause
The EQUAL PROTECTION CLAUSE of the
Fourteenth Amendment has been another bountiful source of litigation. Ratified during
the aftermath of the Civil War along with the
THIRTEENTH AMENDMENT, which outlawed
SLAVERY, and the FIFTEENTH AMENDMENT,
which protected the right to vote from discriminatory
infringement, the Fourteenth Amendment
was designed to promote racial equality.
Until the middle of the twentieth century,
the Supreme Court interpreted the Equal Protection
Clause to permit state-implemented
racial SEGREGATION. Then, in BROWN V. BOARD
OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L.
Ed. 873 (1954), the Supreme Court declared that
the institution of segregation is inherently
unequal. Almost immediately after issuing the
Brown decision, the Court began striking down
state-implemented racial segregation at a host of
public accommodations, including golf courses,
beaches, and public schools. Pursuant to the
Fourteenth Amendment, Congress has passed a
number of CIVIL RIGHTS statutes that protect
African Americans and other racial groups from
discrimination in the private sector. Title VII of
the Civil Rights Act of 1964 (Pub. L. No. 88-352
[42 U.S.C.A. § 2000e et seq.]), for example, prohibits
RACIAL DISCRIMINATION in private
employment.
Persons of any race, creed, or ethnic origin
may bring a claim against a state government for
discriminating against them in violation of the
Fourteenth Amendment. The Supreme Court
has also relied on the Equal Protection Clause to
invalidate state laws that discriminate on the
basis of gender, state residency, and national citizenship,
among other legislative classifications.
In 1996 the U.S. Supreme Court struck down a
Colorado constitutional amendment that discriminated
against homosexuals, because it
served no rational purpose (ROMER V. EVANS,
517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855
[1996]). The CIVIL RIGHTS ACT of 1871 (17 Stat.
13 [42 U.S.C.A. § 1983]) authorizes individuals
to enforce the provisions of the Fourteenth
Amendment against state governments.
Members of other minority groups, such as
persons who are elderly or disabled, are protected
from discrimination in both the public
and private sectors by federal laws that Congress
has passed pursuant to its constitutionally delegated
powers. The Americans with Disabilities
Act (Pub. L.No. 101-336 [ codified at 42 U.S.C.A.
§§ 12111 et seq.]) and the Age Discrimination in
Employment Act (Pub. L. No. 90-202 [ codified
at 29 U.S.C.A. § 621 et seq.]) are two such laws.
Supremacy Clause
The SUPREMACY CLAUSE in Article VI makes
the Constitution, federal laws, and treaties “the
supreme Law of the Land.”Under this clause, state
courts may not interpret the Bill of Rights, or any
other constitutional provision, differently than
does the Supreme Court. States may not provide
less protection for individual liberties than is provided
under the federal Constitution. However,
state courts do retain the power to afford their residents
greater protection for certain liberties
established by their own state constitution than is
afforded by the federal Constitution (Prune Yard
Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct.
2035, 64 L. Ed. 2d 741 [1980]).
Other Constitutional Provisions
The Nineteenth, Twenty-fourth, and
Twenty-sixth Amendments provide that the
right to vote shall not be denied to a U.S. citizen
on account of gender, age (so long as the citizen
is at least eighteen years old), or the failure to
pay a poll tax. The TWENTY-FIRST AMENDMENT
repeals the EIGHTEENTH AMENDMENT, which
banned the manufacture, sale, and transportation
of intoxicating liquors, otherwise known as
PROHIBITION. The SIXTEENTH AMENDMENT
establishes the congressional power to lay and
collect income taxes.
The Tenth and Eleventh Amendments
attempt to preserve the federalist system created
by the Constitution, whereby the state and federal
governments share sovereignty and jurisdiction.
Recognizing the threat presented by an
omnipotent federal government, the TENTH
AMENDMENT reserves to the states all powers not
delegated to the federal government. The text of
the ELEVENTH AMENDMENT restricts federal
courts from hearing lawsuits against state governments
brought by the residents of another
state or the citizens of a foreign country. The
Supreme Court has also interpreted the
Eleventh Amendment to restrict federal courts
from hearing lawsuits instituted by residents of
the state being sued and lawsuits initiated by the
governments of foreign countries.
FURTHER READINGS
Hall, Kermit L. 2002. Oxford Companion to American Law.
New York: Oxford Univ. Press.
Posner, Richard A. 1999. An Affair of the State. Cambridge,
Mass.: Harvard Univ. Press.
CROSS-REFERENCES
Abortion; Administrative Law and Procedure; Age Discrimination;
Commerce Clause; Congress of the United States; Constitution of the United States; Criminal Procedure; Custodial
Interrogation; Disability Discrimination; Double
Jeopardy; Federal Budget; Federalism; Freedom of the Press;
Gay and Lesbian Rights; Incorporation Doctrine; Right to
Counsel; Sex Discrimination; Speedy Trial.
