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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 out-growth 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.

constitutional law

the law that determines the relationship of the citizen to the state and that controls the operation of the various branches of the state. Some examples are now discussed.

In the UK there is no single fundamental document in which the constitutional law can be found. The law is found in certain important Acts of Parliament (like the Acts of Union), in the law and custom of Parliament and in conventions. The supreme law-making body is the Queen in Parliament. The House of Lords is not a constitutional court and cannot generally strike down legislation. Membership of the European Communities has affected the constitutional law of the UK considerably. The European Court of Justice may overrule UK court decisions, even those of the House of Lords. European legislation must either take effect or be given effect. In a separate development European Human Rights law must be applied by the state. There is a devolved SCOTTISH PARLIAMENT and a NATIONAL ASSEMBLY FOR WALES. See ACT OF PARLIAMENT, CABINET, CONVENTIONS, HOUSE OF COMMONS, HOUSE OF LORDS, PRIVY COUNCIL, HUMAN RIGHTS.

In the USA, the Constitution, ratified by 13 states in 1788, is the heart of the American legal system. In seven articles and 26 amendments it lays down the political and legal structure of the federal government. The first ten amendments are known as the Bill of Rights. Changes are seldom effected, but the Supreme Court creatively interprets the intention of the first founding fathers of the Constitution. Each state has its own constitutional documents. The federal government is delegated specific powers involving regulating interstate trade, taxation and war treaties. Congress enacts laws. The executive function lies with the President of the USA. The Constitution provides the checks and balances to allow the three divisions of government to cooperate.

In Australia, the Commonwealth of Australia Constitution Act 1900 is an Act of the imperial UK Parliament. It can be amended only by a referendum procedure. The states themselves have constitutions also derived from the UK and antedating the federal constitution. Much more radical independence from the UK came with the Australia Act of 1986, which removed the right of appeal to the Privy Council. The Parliament consists of the Queen, Senate and a House of Representatives. Executive power is in the hands of the Queen, exercisable by the Governor General. Judicial power is in the hands of the High Court of Australia, headed by a Chief Justice. There is a division of powers between the states and the federal government, which, as in the USA, has been a source of much jurisdictional legislation and controversy. Many important powers are held concurrently. UK law no longer applies to Australia - indeed, no longer can apply; state parliaments can repeal any previous imperial legislation.

The Canadian Constitution has three major written parts: the Constitution Acts of 1867 (formerly the British North America Act) and 1982 and the Charter of Rights and Freedoms. By implication, the 1867 Act was held to imply the freedoms of the British Constitution. Executive authority in federal Canada resides in the Crown in the form of the Governor General, in the provinces in the Lieutenant Governors. Under conventions of the constitution, their powers are exercised only after consultation. The UK enacted the Canada Act 1982, which set up a new constitution and one that bound Quebec, despite its having rejected the package.

In New Zealand the main constitutional provision is the Constitution Act of 1852, which gave responsible government to the Crown colony; also important is the New Zealand Constitution Amendment Act 1947. Dominion status was granted in 1907. The Parliament of New Zealand can, like the UK Parliament, alter any previous laws, including all or any of the provisions of the Constitution Act. Parliaments are summoned and dissolved by proclamation of the Governor General - in dissolutions he acts on the advice of the Prime Minister - and a session lasts three years. It is a unicameral parliament. The government is led by a Prime Minister who has a cabinet and an administration - the Executive Council, including the non-cabinet ministers. The council is legally government and includes the Governor General.

In Ireland, under the Constitution of the Republic, the head of state is directly elected by the people and may hold office for up to two seven-year terms. The President, on the nomination of DAIL EIREANN, appoints the TAOISEACH, or Prime Minister, and, with the approval of the Taoiseach, the other members of the government. The Dail is summoned and dissolved by the President on the advice of the Taoiseach, and it is the President who must sign legislation before it can become law. The President may, after consultation with the Council of State, refer the bill to the Supreme Court for a decision on whether it is repugnant to the Constitution. The President's Commission exercises the functions of the President should that person be unable to do so through absence from the state, incapacity, resignation, removal or death. It comprises the Chief Justice, the Chairman of Dail Eireann and the Chairman of SEANAD EIREANN.

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