Keith Mack
The US Constitution is the nation's fundamental law, outlining the core values of its people. It includes the Bill of Rights, which encompasses the first ten amendments, including freedom of speech, the right to a fair trial, and freedom from certain types of discrimination. The Constitution is interpreted by the courts, which also ensure that laws passed by Congress do not conflict with it. Constitutional law involves the rights and powers of the branches of government, with states also having their own constitutions, which include federal rights and may establish additional rights.
| Characteristics | Values |
|---|---|
| Amendments | First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth |
| Bill of Rights | Freedom of religion, speech, equal treatment, due process of law, freedom from cruel and unusual punishment, right to bear arms, right to a fair trial, freedom from certain types of discrimination, right against self-incrimination, right to counsel, right against double jeopardy |
| Branches of Government | Legislative, Executive, Judicial |
| Procedural Law | Arrest, search and seizure, police interrogation, bail, pre-trial release, discovery, plea bargaining, guilty pleas, trial, sentencing, habeas corpus |
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What You'll Learn
The Bill of Rights
The first three articles of the Bill of Rights, which were not ratified, are known as the Congressional Apportionment Amendment, the Congressional Compensation Amendment, and the State Apportionment Amendment. The ratified Articles 3–12 constitute the first ten amendments of the Constitution. The first amendment prohibits Congress from making laws that establish a religion or restrict the free exercise thereof, abridge the freedom of speech or the freedom of the press, or infringe on the right of people to assemble and petition the government for a redress of grievances. The second amendment states that a well-regulated militia is necessary for the security of a free state, and that the right of the people to keep and bear arms shall not be infringed. The third amendment prohibits the quartering of soldiers in civilian homes without the owner's consent, except in cases prescribed by law.
The fourth amendment protects citizens' right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and requires warrants to be issued upon probable cause. The ninth amendment states that the enumeration of certain rights in the Constitution does not deny or disparage other rights retained by the people. The tenth amendment reserves to the states or the people any powers not delegated to the United States by the Constitution or prohibited to the states.
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Freedom of speech
The Supreme Court has interpreted the First Amendment to include expressive conduct and verbal communication, encompassing written words, symbolic actions, and even the freedom not to speak. For example, the Court has held that flag burning in protest, students wearing armbands to protest a war, and refusing to salute the American flag are all forms of protected speech. These cases, respectively, are Texas v. Johnson, Tinker v. Des Moines, and West Virginia Board of Education v. Barnette.
While free speech is a fundamental right, it is not absolute. The Supreme Court has recognised situations where the government may regulate or restrict speech to preserve public safety or in cases of incitement. For instance, in Cox v. New Hampshire, the Court allowed restrictions on the time, place, and manner of speech to maintain public order. Similarly, the Court held that incitement, or directly advocating for imminent lawless action, is not protected speech under the First Amendment.
Despite these exceptions, content-based restrictions on speech are generally viewed as unconstitutional. Courts apply a strict scrutiny standard to analyse the constitutionality of such restrictions. The Supreme Court has emphasised that content-based laws seeking to regulate protected speech are "presumptively unconstitutional" as they hinder the unfettered exchange of ideas in a democracy. As such, organisations like the American Civil Liberties Union (ACLU) actively work to defend individuals' free speech rights, even in cases of offensive or unpopular speech, to ensure that constitutional rights are preserved for everyone.
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Right to a fair trial
The right to a fair trial is a fundamental right guaranteed by the US Constitution. This right includes the right to a defence counsel who can provide effective assistance. In recent years, the US Supreme Court has ruled that defence attorneys must consider neuroscience when developing their cases to provide effective assistance. However, the standard for determining what constitutes effective assistance is still evolving, and there are differing opinions on how to define it.
The Sixth Amendment also plays a role in protecting the rights needed to have a fair trial. For example, the right to a speedy trial is determined by what is fair and reasonable under the specific circumstances of each case. This means that an accused person must be brought to trial in accordance with the Constitution and statutes or be discharged.
The right to self-representation is another aspect of a fair trial. A defendant may choose to waive their right to counsel and represent themselves, but this waiver must be made voluntarily, knowingly, and intelligently. In the case of State v. Gunther, it was ruled that having had the advice of counsel throughout the prosecution indicates that the defendant's waiver of counsel was knowing and voluntary.
The Nebraska State Constitution Article I-11 also provides specific protections for a fair trial. This includes the right to a trial by a jury of the county or district where the crime was committed, and the right to not be compelled to be a witness against oneself. Additionally, an order of the court excluding spectators from the courtroom has been ruled as a violation of the right to a fair trial.
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Freedom from discrimination
One notable case that illustrates freedom from discrimination is Reed v. Reed, where the US Supreme Court ruled that an Idaho law giving men preference in administering wills violated the Fourteenth Amendment's equal protection clause. The Court recognised that women are entitled to equal protection, marking a crucial step towards gender equality. However, it is important to note that the Court did not extend the same level of legal protection against sex discrimination as it had in cases of racial discrimination.
Another example is Craig v. Boren, where the Supreme Court struck down an Oklahoma law that allowed women aged 18-20 to drink beer but denied the same right to young men. The Court held that discrimination based on sex required intermediate scrutiny and that states could not freely discriminate based on gender. This decision provided meaningful protection against gender discrimination, even if it fell short of the level of protection afforded in race discrimination cases.
The Supreme Court has also addressed discrimination in education. In Brown v. Board of Education (1954), the Court relied on the Equal Protection Clause to dismantle racial segregation in schools. The Court found that separate educational facilities for blacks and whites lacked "substantial equality in educational opportunities," violating the Equal Protection Clause. Additionally, in Regents of the University of California v. Bakke, the Court ruled that imposing a quota for minority applicants at a public university was unconstitutional.
Furthermore, the Equal Access Act, upheld by the Supreme Court in Westside Community Schools v. Mergens, prohibits schools from discriminating against student groups based on their religious, philosophical, or political viewpoints. This Act ensures that students are free from discrimination and can express their beliefs without fear of reprisal.
While the Fourteenth Amendment and the Equal Protection Clause have been instrumental in combating discrimination, it is worth noting that the interpretation and application of these provisions have evolved over time. Initially, the Supreme Court primarily interpreted the Fourteenth Amendment in the context of corporate rights rather than the rights of African Americans. However, over time, the Court has increasingly recognised the importance of freedom from discrimination, leading to landmark decisions that have shaped American society.
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Right to bear arms
The Second Amendment of the United States Constitution, which became law on December 15, 1791, protects the right to bear arms: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The text of the Second Amendment protects the right to "bear Arms," but the meaning of this phrase has been interpreted differently over time.
The majority and dissenting justices in District of Columbia v. Heller disagreed over how the phrase "bear Arms" should be understood. Justice Scalia, writing for the majority, interpreted the phrase broadly to include protection for the carrying of firearms outside of military service. In contrast, Justice Stevens, writing for the dissenting justices, interpreted the phrase narrowly to protect only the carrying of firearms in connection with military service. This interpretation is supported by the use of the phrase "bear arms" in dozens of contemporary texts, which refers to a military context.
State constitutions also play a significant role in defining the right to bear arms. Virtually every state in the country has explicit protection of the right to keep and bear arms in its constitution, with variations in the scope and context of these rights. Some states have granted their legislatures the power to limit the right to bear arms or prohibit the carrying of concealed weapons. Since the 1970s, rights to bear arms have been added or modified in state constitutions through constitutional amendments, with some expanding the purposes for which weapons can be owned and eliminating legislative power to regulate this right.
The Supreme Court's decisions in Heller and McDonald, as well as the 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, have made it less likely for litigants to raise state constitutional challenges, as federal courts are increasingly striking down gun control measures. However, state courts have historically played a significant role in interpreting and upholding the right to bear arms, with some striking down restrictions on firearms possession.
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Frequently asked questions
Constitutional Law refers to rights outlined in federal and state constitutions.
The Bill of Rights is comprised of the first 10 amendments to the U.S. Constitution. It includes rights such as freedom of speech, the right to a fair trial, and the right to be free from certain types of discrimination.
The U.S. Constitution is the nation's fundamental law. It outlines the core values of the people and serves as the basis for interpreting laws passed by Congress.
According to Alexander Hamilton in The Federalist #78, the Constitution takes precedence over any statute, and the intention of the people comes before that of their agents.
Yes, states can have their own constitutions, which typically include most, if not all, of the rights guaranteed under the U.S. Constitution. State constitutions may also outline additional rights, as long as they do not infringe upon any federal rights.
