A Few Things We Should All Know
Don’t be intimidated when you read about a case that involves constitutional law. Yes, constitutional law can be very complex, but the basic principles aren’t.
Cases involving the United States Constitution and books written about them can take up half a library. This article is intended to be a brief primer for the layperson to understand the basic concepts about constitutional law that we read about in the newspapers every day.
Here are some basic things that any citizen should know about the Constitution:
· The United States Constitution is the basis for our entire system of law. It adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania and was ratified the following year.
· The original unamended Constitution is only 4,345 words in length. It is the oldest and shortest written constitution of any major government in the world.
Judicial Review - A Basic Doctrine
The case of Marbury v. Madison established the principle of judicial review; that is, the principle that courts can determine whether a law is constitutional. The Supreme Court of the United States Supreme Court has the final say. The case involved a simple matter. Marbury was appointed to the office of Justice of the Peace by President John Adams, but his actual written commission was not delivered. He petitioned the Supreme Court to order Madison, the Secretary of State, to deliver the document, pursuant to the Judiciary Act of 1789. The court refused, holding that the act was unconstitutional because it gave the Supreme Court jurisdiction that was not provided for in the Constitution. This was the first time that the Supreme Court held a congressional act unconstitutional, and gave birth to the doctrine of judicial review.
· When judges are faced with a constitutional question, they are bound by precedent, also known as stare decisis , which means simply that settled matters should not be disturbed. Courts make their decisions based on prior decisions, and they can vary from those decisions only if they can find a distinction between those earlier cases and the case before the court. The only other way the Supreme Court can go against prior decision is to reverse that earlier ruling. This was done in the case of Brown vs. Board of Education (1954), the school desegregation case. The Supreme Court reversed its ruling in Plessy v. Ferguson (1896) finding that the Plessy court’s holding of “separate but equal” violated the Equal Protection clause of the Fourteenth Amendment.
James Madison - Father of the Bill of Rights
The First Ten Amendments - The Bill of Rights
The first ten amendments to the Constitution are also known as the Bill of Rights. The bill of rights was passed by Congress September 25, 1789 and was ratified December 15, 1791.
The Second Amendment. Pick up a newspaper and chances are that you will see the Second Amendment referred to in an article on the first page. The amendment provides "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." Does it only involve militias? Is the right to bear arms absolute? The debate goes on.
· The Fourteenth Amendment guaranteed that the rights contained in the Constitution applied to the states as well as to the federal government. The Equal Protection Clause of the Fourteenth Amendment states: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."
The Due Process Clause of the Fifth and Fourteenth Amendments are basically identical. The Fifth Amendment states: “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” A cop can’t just grab you by the scruff of the neck and throw you in jail. He must read you your rights and advise you that you have the right to talk to an attorney. You will then be arraigned before a judge who will read the charge against you and ask how you wish to plead. This stuff is what due process is all about.·
Enumerated Powers - The Federal System
The power of the federal government is not unlimited. The framers granted to the federal government specific enumerated powers in Article 1, Section 8. The framers basically said "Okay Fed, here's what you can do," and in the Tenth Amendment they gave further emphasis to the federal system: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Interstate Commerce Clause has become one of the most important clauses in the Constitution, and one of the most controversial (Article 1, Section 8, Clause 3). This clause granted to congress, among other things, the right to “regulate Commerce…among the several states.” This clause has been used to expand the power of the federal government. In its decision on the Affordable Health Care Law on June 28,2012, the Supreme Court held that the individual mandate that forced people to purchase health insurance was unconstitutional under the commerce clause. However, the Court, with Chief Justice John Roberts as the swing vote, found that the law was constitutional under the first clause of the enumerated powers, "the power to lay and collect taxes." (Article 1, Section 8, Clause 1). This decision is controversial to say the least. Books, treatises and law review articles about this case will stretch years into the future, so no thorough analysis will be presented here. The most important thing to recognize, for the purpose of this article, is that the commerce clause has been restrained, and it does not mean that congress can do whatever it wants. Some will disagree with that last sentence.
Books on the Constitution
The Basic Test of Constitutionality
If a case is about a fundamental constitutional right and it involves a “suspect classification” such as race or national origin, the court will apply the test of “strict scrutiny.” This means that the law will be upheld only if it there was a “compelling state interest.” If a case does not involve a suspect classification leading to strict scrutiny, the court will question only whether the legislature had a mere “rational basis” for writing the law.
This article only covers a few of the basics. We should all be familiar with the United States Constitution and how it affects us. A number of organizations have published booklets that contain the Constitution as well as the Declaration of Independence. Some of them are: the Cato Institute, the Heritage Foundation, Hillsdale College and young America’s Foundation. The booklets fit right in your pocket or purse. It’s a good thing to carry around. A useful website that is great for Constitutional trivia buffs is www.constitutionfacts.com.
Russ Moran, the writer of this article, is also the author of the book Justice in America: How it Works - How it Fails.
Copyright © 2014 by Russell F. Moran - All Rights Reserved
© 2012 Russ Moran - The Write Stuff
Larry Allen Brown from Brattleboro Vermont on December 30, 2015:
I'm curious Russ; do you have a view on the concept of States Rights? If so, what is that view. If you think that it's a legitimate claim, where do you find that in the Constitution?
Larry Allen Brown from Brattleboro Vermont on December 30, 2015:
"I noticed that you haven't done any hubs on the recent attempt to repeal the 22nd Amendment."
???? Who's trying to repeal the 22nd amendment? That amendment is about term limits for the President.
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
Why would anybody want to repeal the 22nd?
Russ Moran - The Write Stuff (author) from Long Island, New York on January 28, 2013:
If we ever get close to the issue it will be a hub (book) unto itself. This hub is for what is already in the Constitution. Thanks for your input Ib.
ib radmasters from Southern California on January 28, 2013:
R F Moran
I noticed that you haven't done any hubs on the recent attempt to repeal the 22nd Amendment.
This would be a fascinating discussion because President Obama who as president has veto power over this repeal. The only fair way to repeal the 22nd is with another amendment, but that is not the only way as you know.
It might even be a seed for another book.
just a thought.
Russ Moran - The Write Stuff (author) from Long Island, New York on January 22, 2013:
Ib you got that right - ANYTHING
ib radmasters from Southern California on January 21, 2013:
I just looked it up,
WICKARD v. FILBURN, 317 U.S. 111 (1942)
317 U.S. 111
WICKARD, Secretary of Agriculture, et al.
Decided Nov. 9, 1942.
The wheat stabilization law was from 1940 and Filburn planted his wheat in 1941.
Filburn argued that since the excess wheat he produced was intended solely for home consumption, his wheat production could not be regulated through the Interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat, he would have had to buy wheat on the open market.
This kind of reasoning allows the court to use the commerce clause for any thing.
Russ Moran - The Write Stuff (author) from Long Island, New York on January 21, 2013:
Thanks for your comments ib. The case you refer to is Wickard v, Filburn, where, in 1932, a farmer planted some wheat on his property for his own consumption and was found in violation of a wheat price stabilization law. This is the grandaddy of "screw the commerce clause" cases. For further reading, in a book on law written for the layman, you may want to check out my book http://amzn.to/13WWpoo
ib radmasters from Southern California on January 20, 2013:
Russ, this hub looks like a great snapshot of the basics on the constitution.
There are some interesting things about the adjudication of the constitution, and especially on the Supreme Court that I hope to see in your future hubs.
For example, when two amendments conflict with an issue, what is the process to determine which one wins.
for instance, when a person refuses to self incriminate themselves by divulging all their incomes and their sources. So does the 16th Amendment override the protections of the 5th amendment?
The 16th amendment really just put the Federal Income Tax over the apportionment hurdle, and it doesn't mandate Income Taxes is just legalizes it.
Another issue is the Interstate Commerce Clause
It has allowed the Federal Government to expand its size and scope to the point where there is less need for the States.
I forget the landmark case, I think it was in Mass about 1942, where the Supreme Court eeked out a win for the Federal Government that a farmer that used I believe about 10 of his acres for him and his family as their personal food. The court held that by not buying food on the open market, it had an impact on Interstate Commerce.
Anyway, I look forward to you straightening out my opinions from reality.
Russ Moran - The Write Stuff (author) from Long Island, New York on January 20, 2013:
So true Deborah. I am in the habit of always carrying a pocket Constitution with me at all times. If a question comes up I don't have to rely on memory. Thanks for your comment.
Deborah Neyens from Iowa on January 20, 2013:
Great hub and a very useful reference. I loved studying constitutional law in law school. But it just amazes me how many people will toss about comments about what is in or not in the Constitution without ever having bothered to read it themselves.
Russ Moran - The Write Stuff (author) from Long Island, New York on December 31, 2012:
Thanks Skye, and bless you too. I'm glad I could help to simplify something that's assumed to be complex, when it really isn't in its basics.
skye2day from Rocky Mountains on December 28, 2012:
rfmoran another wow read. I have bookmarked your writing for reference. Thank you for writing this! Many of us need more clarity on the constitution and you have certainly done that in your writing. I am thrilled to have this info saved. Blessings Galore rfmoran. Skye
Keep going brother. God has you here for a purpose indeed!
Russ Moran - The Write Stuff (author) from Long Island, New York on December 17, 2012:
Thank you Joan. I'm glad that you found it useful.
Joan Whetzel on December 17, 2012:
This is a fabuoulous overview of the US Constitution. It puts the introductory material into summary easy to understand for those just beginning Constitutional study.
Russ Moran - The Write Stuff (author) from Long Island, New York on October 28, 2012:
Thanks for your visit and your comment.
Howard Schneider from Parsippany, New Jersey on October 27, 2012:
Excellent introduction and summary of what the United States Constitution is. Great Hub, RFMoran.
Russ Moran - The Write Stuff (author) from Long Island, New York on October 10, 2012:
Thank you Dennis.
Dennis AuBuchon from Ohio on October 09, 2012:
This is an awesome hub. I have voted up, tweeted, pinned and liked.
Russ Moran - The Write Stuff (author) from Long Island, New York on July 03, 2012:
Thanks Tamara. I updated it this morning to include the Affordable Health Care decision.
Tamara Wilhite from Fort Worth, Texas on July 02, 2012:
This should be required reading for many young people.
K Rajasekharan on April 18, 2012:
Great overview that teaches the viewer a lot in a few minutes.
Russ Moran - The Write Stuff (author) from Long Island, New York on April 17, 2012:
Thanks for you comment. My goodness we Hubbers have odd names. Russ Moran (that's me!)
Bahin Ameri from California on April 17, 2012:
Great overview of the constitution. Its nice to see a fellow attorney on Hubpages. Voted up!