Anaya Nolan
The US Constitution is the highest law in the country, but there are many laws that are not included in it. These laws are called statutory laws and are passed by the United States Congress. While the Constitution establishes the Supreme Court, Chief Justice, and other Justices, it does not define the makeup of the Supreme Court. The Constitution also does not mention a right to privacy, a minimum age, or residency requirements for judges. Executive Orders, which modify how an executive branch department or agency does its job, are also not mentioned in the Constitution. Additionally, the term Electoral College is absent from the Constitution, and while the concept of immigration is implied, the word itself is not used. Finally, there are state or local laws that are preempted by federal law and are thus void, not because they violate the Constitution, but because they conflict with a federal statute or treaty.
| Characteristics | Values |
|---|---|
| Executive Orders | Not mentioned in the Constitution, but they have been used by presidents to modify existing laws or change how an executive branch department functions. |
| Districts | Not mentioned in the Constitution, but the United States Code acknowledges districting and leaves the specifics to the states. |
| Electoral College | The concept of a presidential elector is in the Constitution, but the group is not referred to as "The Electoral College." |
| Freedom of Speech | Often restricted in workplaces, for example, employers can restrict employees from speaking about politics, religion, or legal issues. |
| Presumption of Innocence | Not explicitly mentioned in the Constitution but considered common law and embodied in several provisions, such as the right to remain silent and the right to a jury. |
| Universal Application of Laws | The Constitution does not state that laws apply universally to all citizens. There are exceptions and distinctions made, such as in the case of Native Americans possessing eagle feathers or police officers directing traffic. |
| State Laws | Some state laws have been held unconstitutional or preempted by federal law due to conflict with a federal statute, treaty, or the Supremacy Clause. |
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What You'll Learn
Executive orders
The Constitution does not explicitly state that laws apply universally to all citizens. There are several examples of laws that do not apply equally to all citizens. For instance, it is illegal to possess eagle feathers, unless you are a Native American using them for tribal customs. It is illegal to own controlled substances, unless you have a prescription. It is illegal to shoot someone, except in self-defence. Laws with exceptions are common.
The legislative branch also has the Speech and Debate Clause, which states that members of Congress:
> "...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
The Constitution also established a slave state, differentiating between slaves and free citizens. The Fourteenth Amendment aimed to remove this distinction, but the Jim Crow laws side-stepped this. It was only with the Civil Rights movement that true change was enacted.
Other things not mentioned in the Constitution include the term "Electoral College". While the concept of the presidential elector is in the Constitution, the group of people are not collectively referred to as "The Electoral College".
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Freedom of speech in the workplace
While the First Amendment guarantees freedom of speech, this right is limited in the workplace. The First Amendment does not constrain private actors, so private-sector workers cannot rely on the Constitution to protect their freedom of speech at work.
In the United States, "at-will" employment means that employers have the right to fire employees for any reason, or no reason at all. This includes firing workers for something they said or wrote, even outside of work. For example, employees have been fired for criticising their company on social media, for having a bumper sticker supporting a political candidate opposed by their boss, or for supporting a political rival of their boss on social media.
However, this right to fire employees is not absolute. If an employer's restriction on employee speech only affects a certain group, it may be a form of illegal discrimination. For example, if an employer has a rule against wearing Nike apparel in support of Colin Kaepernick, but only workers of a particular race are affected by this policy, the employer could be engaging in unlawful discrimination. Additionally, some states have laws barring employers from taking adverse employment actions against employees based on their political speech outside of work. For example, in California, employers cannot discriminate against employees based on their political activities or affiliations.
Furthermore, judges have recognised that employees have a right to free speech in certain situations. In the case of Novosel v. Nationwide Insurance Co., the U.S. Court of Appeals for the Third Circuit agreed that the plaintiff had a claim for wrongful discharge when he was fired for refusing to participate in his employer's lobbying activities. The court recognised the importance of the political and associational freedoms of the federal and state Constitutions. However, this decision has been criticised as a minority approach, as most wrongful termination cases require employees to point to a well-established public policy that was violated by their discharge.
Overall, while freedom of speech in the workplace is not explicitly protected by the Constitution, there are some legal protections in place to safeguard employees' right to free speech.
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Presumption of innocence
While the phrase "presumption of innocence" is not explicitly mentioned in the US Constitution, it is widely regarded as a fundamental right derived from the Fifth, Sixth, and Fourteenth Amendments. The Fifth Amendment's due process clause, in conjunction with the Fourteenth Amendment, guarantees that individuals cannot be deprived of their freedom or property without proper procedures, including the presumption of innocence.
The presumption of innocence is a foundational legal principle that holds that every person accused of a crime is considered innocent until proven guilty. This principle is crucial in criminal justice systems, ensuring that the burden of proof rests with the prosecution. The prosecution must provide compelling evidence to a judge or jury, demonstrating guilt beyond a reasonable doubt. If they fail to meet this burden, the accused must be acquitted.
The concept of presumption of innocence is not just limited to the US legal system. It is recognised in various international declarations and conventions. For example, Article 11 of the Universal Declaration of Human Rights states that everyone charged with a penal offence has the right to be presumed innocent until proven guilty in a public trial. Similarly, Article 14, paragraph 2 of the International Covenant on Civil and Political Rights affirms the right to be presumed innocent until proven guilty according to law.
In some countries, the presumption of innocence is explicitly enshrined in their constitutions. For instance, in France, Article 9 of the Declaration of the Rights of Man and of the Citizen of 1789, which holds constitutional weight, asserts that any person is presumed innocent until declared guilty. Similarly, the Constitution of the Islamic Republic of Iran states in Article 37 that "innocence is to be presumed, and no one is to be held guilty of a charge unless his or her guilt has been established by a competent court". These examples demonstrate how the presumption of innocence is recognised and protected at both the international and national levels.
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Universal applicability of laws
The US Constitution is the highest law of the land and is set apart from other laws. However, it does not contain universal laws that apply to all citizens. There are several examples of laws that do not apply universally, with some laws applying differently depending on the individual or group.
For instance, the Speech and Debate Clause in the Constitution protects members of Congress from arrest in certain situations and grants them immunity for their speeches and debates in either House. This privilege does not extend to all citizens. Similarly, it is illegal to possess eagle feathers, but this law does not apply to Native Americans who use them for tribal customs. The Constitution also establishes different rules for soldiers and police officers, who are permitted to perform actions that would be considered criminal for civilians, such as directing traffic.
Additionally, the concept of "executive privilege" is derived from the Constitution and allows for certain laws or privileges to apply only to specific individuals or groups. For example, it may be illegal for someone to stand in the middle of an intersection, but a police officer directing traffic is exempt from this restriction. Furthermore, the Constitution does not explicitly state that it is a "free country", leaving room for laws and restrictions that may not apply universally.
While the Fourteenth Amendment aimed to remove distinctions between citizens, the Jim Crow laws served as a workaround, demonstrating that laws have been enacted differently for different groups throughout history. The Constitution outlines the functions and limitations of the government but does not prohibit the creation of laws that apply differently to various individuals or groups.
In conclusion, the US Constitution does not guarantee universal applicability of laws. Instead, it provides a framework for the legislative process and outlines the roles of different branches of government. The specific laws and their applicability are determined through various legal mechanisms, including statutory law, case law, regulatory law, and executive orders. These laws can be further influenced by common law precedents and constitutional amendments, contributing to a complex legal landscape where universal applicability of laws is not always achievable or desired.
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Gerrymandering
The Supreme Court of the United States has addressed the issue of gerrymandering in several cases. In 1986, the Court ruled in Davis v. Bandemer that partisan gerrymandering violated the Equal Protection Clause and was a justiciable matter. However, the Court could not agree on a clear constitutional standard to evaluate legal claims of partisan gerrymandering. In 1995, the Supreme Court, in a 5-4 decision in Miller v. Johnson, affirmed that racial gerrymandering violated constitutional rights and upheld decisions against redistricting based on race. Similarly, in Baker v. Carr (1963) and its subsequent case, Wesberry v. Sanders, the Court decided that Georgia's congressional district mappings violated the Constitution by not adhering to the principle of "one man, one vote."
Despite these rulings, the Supreme Court has struggled to curb gerrymandering effectively. In Rucho v. Common Cause (2019), the Court stated that questions of gerrymandering represented a nonjusticiable political question, and federal courts had no authority to intervene. This ruling was reaffirmed in 2021, when Chief Justice John Roberts wrote, "The Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly." This decision effectively left the resolution of partisan gerrymandering cases to state courts under their respective constitutions and laws.
The impact of gerrymandering on minority voting rights is also a significant concern. Racial gerrymandering aims to maximize or minimize the impact of racial minority votes, often resulting in the reconstruction of districts that limit minority voters. The Supreme Court's 2013 decision in Shelby County v. Holder, along with technological advancements and the influence of dark money, have further contributed to the potential dilution of minority voting power.
To address these issues, several states have passed ballot measures mandating non-partisan commissions for the redistricting cycle. Additionally, the Freedom to Vote Act, a significant piece of federal democracy reform legislation, aims to enhance transparency, strengthen protections for minority communities, ban partisan gerrymandering in congressional redistricting, and improve voters' ability to challenge gerrymandered maps in court.
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Frequently asked questions
These are called statutory laws.
Executive Orders, which modify how an executive branch department or agency does its job, are not mentioned in the Constitution.
No, it only mentions that there will be a Supreme Court, a Chief Justice, and other Justices, but it does not specify how many of each there should be.
No, but Supreme Court decisions over the years have established that the right to privacy is a basic human right and is protected by the 9th Amendment.
No, but the Supreme Court has ruled that the Congressional power to regulate naturalization includes the power to regulate immigration.
