• James Notaris

    CPA, ESQ, Legal Editor

  • Tyler Dikun

    Executive Editor

    In Brief:

  • The Constitution is one of the most important legal documents in the history of humankind.

  • Constitutional law lays out the framework of all federal, state, and local legislation.

  • Some of the most famous court cases have shaped legal precedent for decades including Brown v. Board of Ed. and Roe v. Wade.

  • Judicial review refers to the Supreme Court's right to examine the actions of both the Executive and Legislative branch for legality.

Do you know your rights? Over 250 years ago in an unbearably hot government building, the founding fathers labored over a single piece of parchment. This singular federal document, debated on by a council of esteemed legislators, would go on to become the United States Constitution, one of the most important and revolutionary documents in world history. On that September day in 1787, U.S. constitutional law was born.

The Constitution Deconstructed

The Constitution is organized into three parts. The first part, the Preamble, describes the purpose of the document and the Federal Government. The second part, the seven Articles, establishes how the Government is structured and how the Constitution can be altered. The third part, the Amendments, lists changes to the Constitution; the first 10 are called the Bill of Rights. The Founding Fathers believed the new government should be based on three principles:

  • There are certain unalienable rights that all people share
  • The separation of government into three branches
  • The right of the people to self-govern

These three principles fell in line with the zeitgeist spreading through Europe and its colonies around the 17th and 18th centuries that led to several revolutions including in the U.S, France, and Haiti. With the help of our friends John Locke and Baron de Montesquieu, the commoners of the world realized they need not pay umbrage to a pompous figure head while the average person struggled for daily food rations and a place to sleep.

 The first three articles lay out the powers and duties of the executive, legislative, and judicial branches. Article four explains the duties of each state while article five details that the Constitution can only be changed by adding an amendment. Article six added that any debt obligations before the country existed needed to be upheld, and the seventh article lists how many states are needed to ratify the Constitution.

 The Constitution has currently been amended 27 times, a number that will certainly go up as the decades pass. The first 10 are known as the Bill of Rights, the ones you probably hear the most about on prime-time news. These include freedom of religion, speech, press, the right to bear arms, the right to due process, freedom against search and seizure, and the right to an impartial jury. The seminal amendments that nearly every citizen will recognize are the 13th Amendment that abolished slavery, the 18th Amendment that prohibited alcohol, and the 19th Amendment that allowed women the right to vote.

You can learn more about the 27 amendments below:

What Is Constitutional Law?

Constitutional law may sound like an intimidating subject, but every American with a middle school education can likely recall some of its tenants. When you think about constitutional law, you likely recall the importance of the separation of powers, checks and balances, freedom of religion, speech, and press. If the Constitution is the foundation, constitutional laws are those elements that can be found inside.

Every aspect of federal and state governments is enforced by the Constitution. The relationship between each branch of government is clearly outlined as well as certain powers that the government can possess including tax collection, raising and maintaining a military, and building infrastructure.

Most constitutional legal issues involve the Bill of Rights (the first 10 Amendments). When someone believes their freedom of speech has been suppressed, they have experienced some form of discrimination, or they maybe did not have access to a fair trial, this is a matter of constitutional law. Furthermore, when a president is charged with articles of impeachment, this is yet another example of constitutional law, as members of the government believe the president has acted unconstitutionally. 

There are many famous constitutional legal examples that shaped the United States. Two landmark cases are listed and described below.

Brown vs. Board of Education (1954)

When the Brown family of Topeka, Kansas was barred from enrolling their daughter in a school close to home because of the color of her skin, the family filed a class action lawsuit in federal court. On the basis that their rights had been violated, the family took their case to the Supreme Court after the U.S. District Court for the District of Kansas ruled that the further school was “separate but equal”, a precedent established during the famous Plessy vs. Ferguson case of 1896.

In 1954, the Supreme Court declared that the “separate but equal” clause was unconstitutional for American public schools and educational facilities. The verdict paved the way for the integration of public schools and is considered a major victory for the Civil Rights Movement.

Roe vs. Wade (1973)

When Norma McCorvey of Dallas, Texas learned she was pregnant with her third child, the 21 year-old believed it best to have an abortion. According to Texas law, an abortion could only be performed to save the life of the mother. As such, McCorvey attempted to obtain an illegal abortion only to learn that the facility had been closed down by police. The mother of two retained the service of constitutional lawyers Linda Coffee and Sarah Weddington on the basis that her right to her own body and privacy had been infringed upon. 

On June 17, 1970, a three-judge panel of the District Court, consisting of Northern District of Texas Judges Sarah T. Hughes, William McLaughlin Taylor Jr. and Fifth Circuit Court of Appeals Judge Irving Loeb Goldberg, unanimously declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment.

The case reached the Supreme Court in 1970 on appeal. The Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. It struck down many U.S. state and federal abortion laws, and prompted an ongoing national debate in the United States about whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role of religious and moral views in the political sphere should be.

How Does the Supreme Court Decide on Matters of Constitutional Law?

From an outside perspective, the Supreme Court may possess a disproportionate amount of power relative to the other branches of government. What is there to prevent the Supreme Court from legalizing mandatory Sunday church service for all citizens, or dictating to Congress how much it can spend on the military? In order to keep from becoming a tyrannical branch, members of the Supreme Court must base their legal interpretations on the Constitution rather than their own beliefs. 

Some scholars believe that the Supreme Court must abide by a strict interpretation of the Constitution (originalists) while others believe it is important to have a fluid interpretation and look beyond the thinking of the founding fathers (interpretivists). Originalists like Supreme Court Justice Antonin Scalia believe that when one abides by a strict interpretation of the Constitution, a justice’s own beliefs and viewpoints cannot muddle the actual intent of the Constitution. When taking a more liberal viewpoint of the Constitution, Justice Scalia argued that political, economic, and philosophical beliefs can taint the interpretation of the Constitution. 

Interpretivists argue that we cannot comprehend exactly what the framers were thinking or the world they lived in. The interpretation of the Constitution must adapt to current societal norms. For example, the First Amendment only guarantees freedom of speech and press because, at the time it was written, the framers only had access to those two forms of communications. Where would invasive robocalls or pornography lie within that amendment?

supreme court justices

Why Is The Supreme Court Allowed to Interpret the Constitution in the First Place?

According to Article III of the Constitution, “The 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.” Under this article, the Supreme is declared the highest court in the land or “supreme”,  but that still does not mean the Supreme Court has the authority to review constitutional law cases. This power comes from the most important facet of the Supreme Court… judicial review. 

In matters of judicial review, actions of the executive and legislative branches are subject to review. If the Supreme Court deems that certain laws or actions are unconstitutional, they are swiftly invalidated.  As such, judicial review is a very important countermeasure against the legislative and executive branches. Without judicial review, the legislative branch would have no restriction on the laws it writes and the executive branch could dictate blatantly illegal executive orders without the fear of retribution. 

The power of judicial review was established in the landmark decision of Marbury v. Madison, the first Supreme Court decision to rule an act of Congress as unconstitutional. Chief Justice John Marshall explained his ruling at the time, “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.”

What Powers Does the Constitution Give to the Federal Government?

The Constitution entrusts the Federal Government with three main powers:

Delegated Powers

These are bestowed upon the federal government in Article I, Section 8 of the Constitution. They include the power to coin money, regulate commerce, declare war, raise and maintain armed forces, and establish a Post Office. In total, the Constitution bestows 27 powers to the federal government.

Implied Powers

These powers are not specifically stated in the Constitution, but are inferred from Article I, Section 8. Implied powers give Congress the right “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and other powers vested in the government of the United States.” Because implied powers are not explicit, the courts must often decide what constitutes an implied power.

Inherent Powers

Similar to implied powers, inherent powers are not specifically delineated in the Constitution. They are needed due to the existence of the national government. For instance, the United States has the power to acquire territory by exploration and/or occupancy, primarily because most governments in general claim the right to do so.

What Powers Does the Constitution Give to State Governments?

The power of state governments is outlined in the 10th Amendment. “The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.” 

The powers of each state government are known as reserved powers. These include regulating trade within a state, establishing local government, and conducting elections. Occasionally the powers of federal and state governments overlap.

For example, both may levy taxes, create and enforce laws, and accrue debt. The federal government cannot enact laws that interfere with each state’s ability to enact its own laws. Additionally, states cannot coin their own money or levy taxes on imports and exports. 

utah state house

Now You Know Why Constitutional Law is So Important

Simply put, constitutional law is the cornerstone on which the U.S. was founded. The rights and privileges that free citizens enjoy are due in totality to the Constitution. Constitutional law ensures that each branch of the government shares equal power, a tyrannical leader can never dictate policy, and Americans of all races, creed, and religion have the right to life, liberty, and the pursuit of happiness.

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