Constitutional Law FAQs

The US Supreme Court does not automatically hear any case on appeal. Its appellate jurisdiction generally extends to cases that involve federal law or the Constitution. 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 the overwhelming majority of these petitions.

The Constitution does not explicitly provide a right to privacy in its text. However, the Supreme Court has inferred an implied right to privacy from several provisions in the Bill of Rights. These include the right to assembly and protections against searches and seizures. The right to privacy has helped shield individual freedoms in several controversial areas, such as abortion and same-sex relationships.

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. Laws generally do not pass this standard of review. It is often applied in equal protection cases involving classifications based on certain protected traits, such as race, national origin, alienage (lack of citizenship), and religion. A lesser standard of review applies to certain other classifications, such as gender.

Rational basis review is the least demanding standard of review for judging the constitutionality of a law. Under this standard, a law will be considered constitutional if it is rationally related to a legitimate government interest. In contrast to more intensive standards of review, the challenger rather than the government has the burden of proof. However, the Supreme Court sometimes has applied an enhanced version of rational basis review to laws involving certain mildly suspect classifications, such as LGBTQ+ individuals and people with mental disabilities.

In general, the government can regulate speech through content-neutral restrictions, but content-based restrictions likely will violate the First Amendment. A speaker may be liable for the content of their speech in certain situations, however, such as obscenity, child pornography, criminal threats, defamation, and certain personal insults that incite violence. Content-neutral restrictions often control the time, place, and manner of the speech or activity. Some content-neutral restrictions may not be constitutional if they are overly broad. The government has greater discretion to regulate speech in certain settings where it has a special authority, such as public schools and government workplaces.

Public schools generally cannot hold prayers under the Establishment Clause of the First Amendment, even if they are initiated by students at school events. Nor can public schools hold similar events, such as Bible readings or moments of silence for meditation. However, if a school allows student groups or non-school entities to use its property, those groups or entities can conduct religious activities on school property, including prayers.

A criminal sentence violates the Eighth Amendment if it is cruel or unusual according to evolving standards of decency in the community. A punishment also must be proportionate to the crime. This requires a court to consider the seriousness of the crime and the sentence, as well as how the jurisdiction generally punishes crimes and how other jurisdictions punish the same crime. Sentencing procedures in death penalty cases must be individualized, and juries must consider the specific circumstances of the case and the defendant.

While the Second Amendment provides an individual right to own a gun, this right is not absolute. The government can prevent citizens from owning weapons that have no possible law-abiding purpose, such as sawed-off shotguns. Laws also can ban certain groups of people from owning firearms, including juveniles, convicted felons, and people with mental illnesses. Furthermore, the government can restrict the locations where people can bring weapons and impose certain requirements for concealed carry permits.

Abortion restrictions must meet the undue burden standard. The Supreme Court developed this standard to limit the impact of Roe v. Wade, which had imposed a strict scrutiny standard for abortion regulations. The undue burden standard prevents a state from imposing 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.

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. Considering the importance of marriage, moreover, same-sex couples would face a significant burden on their equality if they were denied access to this institution.