Generally, constitutional law is the foundation of all law in a specific jurisdiction. It establishes governmental authority and power, as well as limitations and grants of rights. The Constitution of the United States established a system of government and serves as the primary source of law. While each individual state has its own constitution, "Constitutional law" generally refers to such law of the federal government.
What is United States Constitutional law?
Drafted in 1787 and adopted the following year, the United States Constitution establishes three branches of federal government, its relationship to and between states, and sets forth the rights possessed by the people.
The Bill of Rights, along with the other Amendments, enumerates rights possessed by the people. For example, the First Amendment protects the right to free speech, press, association and religion. Rights not enumerated are also safeguarded, as the Tenth Amendment provides that all rights not given to the federal government are reserved to the individual states and people.
Articles I, II, and III outline the powers of the federal legislative, executive, and judicial branches, respectively. Along with other portions of the document, these articles create a system of checks and balances among the various branches of government. While some powers are explicitly granted to a distinct branch, such as the power of Congress to regulate interstate commerce (Article I, § 8), other powers are shared by branches, such as the power over the military. Authority over the military arguably belongs to the President as Commander-in-Chief (Article II, § 2); however, Congress has the power to raise and fund the armed forces (Article I, § 8).
Article IV governs the relationship of states to one another, addresses the creation of new states, and establishes a republican form of government. Article V contains the procedure for amending the Constitution. Article VI addresses debts, establishes the Constitution as the highest law (known as the Supremacy Clause) and mandates that officers of all branches of government, federal and state, take an oath to uphold the Constitution. Article VII sets forth the requirements for ratification of the Constitution.
Who interprets the Constitution?
The Supreme Court is the self-proclaimed final arbiter on disputes involving a Constitutional issue. In Marbury v. Madison, (5 U.S. 137, 1803), the Supreme Court inferred this power and has played a critical role in interpreting the Constitution throughout the nation's history. Supreme Court decisions are binding on the parties. Moreover, Supreme Court decisions are part of the body of Constitutional law, and are, therefore, also binding on all other branches—federal and state—of government, and the people (Art. VI).
How do courts interpret the Constitution?
The Constitution is relatively short and its vague and sometimes antiquated language invites varying interpretations. Competing theories have evolved on the appropriate method to use to interpret the meaning of the Constitution. Examples of these diverse methods include "originalists" who maintain the text must be read literally, while "purposivists" seek to discern and achieve the intent of the law on grounds that the Constitution was intended to be a "living document," adaptable to changing society. In vague areas, courts have referred to principles of English common law, on grounds its application was, in some circumstances, intended by the Framers.
Can I take a case to the US Supreme Court? The US Supreme Court does not automatically hear any case on appeal. Someone who wants to appeal a case to the Supreme Court must petition for a writ of certiorari. The Supreme Court has discretion to decide whether to hear the case, and it rejects most of these petitions.
What is strict scrutiny? Strict scrutiny is the most demanding standard of review for judging the constitutionality of a law. It requires the government to prove that the law is necessary to further a compelling government interest. The law must be narrowly tailored and use the least restrictive means to further this interest.
When can the government regulate speech? In general, the government can regulate speech through content-neutral restrictions, but content-based restrictions likely will violate the First Amendment. The government has greater discretion to regulate speech in certain settings where it has a special authority, such as public schools and government workplaces.
What are the limits on abortion restrictions? Abortion restrictions must not impose an undue burden on the ability of a woman to pursue an abortion. Determining whether a law meets this standard is highly fact-specific, but informed consent and waiting periods before abortions are generally not considered undue burdens, while requiring a married woman to notify her husband is an undue burden.
Why do same-sex couples have a constitutional right to marry? Same-sex couples have a constitutional right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. According to the Supreme Court in Obergefell v. Hodges, the right to marriage is a fundamental right, and the authors of the Constitution could not have foreseen how liberty interests have developed over time.
Religious Freedom Under the Constitution The First Amendment prevents the government from endorsing a certain religion, becoming entangled in religious activities, and prohibiting the free exercise of religious beliefs or practices.
Gun Rights Under the Constitution The prevailing view is that the Second Amendment supports an individual right to bear arms, but the government still can regulate gun possession in certain situations or for certain groups.
LGBTQ+ Rights Under the Constitution A series of constitutional cases decided by the Supreme Court have greatly expanded LGBTQ+ rights, culminating with a decision finding that the Fourteenth Amendment mandates marriage equality.
The Death Penalty Under the Constitution The Eighth Amendment does not prohibit the death penalty as cruel and unusual punishment, but it must be proportionate to the crime, and sentencing procedures must be individualized.