Criminal Law in Context

The U.S. Constitution and State Constitutions protect rights (like free speech, due process, fair trial) and limit government power.

Introduction

Did you know that our United States Constitution is the supreme law of the land? Indeed, the Constitution carries more weight than any other law. To understand this powerful piece of law, it helps to know why it was made. When the Constitution was drafted, the American colonies had only recently won independence from Britain. During British rule, the colonies were oppressed by the British king. The American public had no say in the laws that governed their lives, nor a way to seek justice if they were harmed by the Crown. The founders sought to prevent this from ever happening again. They wanted power to be in the hands of “The People.” Today, the Constitution remains the source of protection for your rights and liberties. 

How The Constitution Is Applied

The Constitution sets the standard of what rights are guaranteed to everyone. The standard set by the Constitution is the minimum, so other laws cannot prescribe people less rights than the Constitution prescribes. This principle is called the constitutional floor. State and local laws can grant people more protection than the federal Constitution does, but never less. Essentially, other laws may build upon the constitutional floor. For example, the California State Constitution grants extra rights that aren’t in the Constitution, such as an explicit right to privacy.  

The Constitution also prohibits ex post facto laws. Ex post facto laws turn an act that was legal at the time it happened into a crime after it has already happened. For example, imagine if one day it is legal to purchase bubblegum. Sally purchases bubblegum. A week later, Congress passes a law banning bubblegum purchases, and Sally is arrested and prosecuted for her bubblegum purchase. Sally’s arrest and prosecution would be unconstitutional as ex post facto laws are not allowed. Similarly, the Constitution prohibits Congress from passing Bills of Attainder, or laws that punish without a trial. 

Role of the Courts

The courts ensure that constitutional protections are not violated through the process called judicial review. There are two ways that a law’s constitutionality can be challenged: 

1. The law is unconstitutional on its face.

   1. This means that the written substance of the law violates the Constitution.

      1. An example case is Reno v. ACLU, 521 U.S. 844 (1997). The Supreme Court held that parts of the 1996 Communications Decency Act were unconstitutional. Since these parts of the Act were unconstitutional on their own (without application to any particular case), they were unconstitutional on their face.

2. The law is unconstitutional as applied.

   1. This means that the law, when applied to the case, violates the Constitution.

      1. An example case is Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). In Birmingham, Alabama, a city ordinance required permits for parades and processions, and Reverend Fred Shuttlesworth was convicted for violating this ordinance while he led a peaceful civil rights march. On review, the Supreme Court held that the ordinance was unconstitutionally vague and restricted free speech. The judgment against Reverend Shuttlesworth was reversed.

In both of the above Supreme Court cases, the Court took issue with the vagueness or broadness of the respective law. Vagueness and broadness are constitutional red flags because they open up the opportunity for laws to be misinterpreted or interpreted inconsistently. A law is void for vagueness when its wording gives too much discretion to law enforcement, it is inconsistently applied, and it does not provide notice of what is considered criminal. A law is overbroad when it prohibits acts that are constitutionally protected (such as free speech).

Your Constitutional Rights

Now that you know how Constitutional rights are applied and protected, let’s consider what your rights actually are. The first ten amendments to the Constitution, called the Bill of Rights, list out the rights of the people. In addition to the Bill of Rights, several other important amendments have expanded and clarified the rights of the people and the powers of government.

Use the chart below to better understand your Constitutional rights, as recognized in the U.S. Constitution:

The Bill of Rights and Other Key Amendments

First Amendment	freedom of religion freedom of speech  freedom of the press  freedom of assembly the right to protest
Second Amendment	right to a well-regulated militia for national security right to have and carry firearms
Third Amendment	No one can be forced to keep soldiers in their home (during peace time). During war time, this is also not allowed, unless a law is passed requiring it.
Fourth Amendment	no unreasonable searches and seizures no warrants without probable cause warrants must say what will be searched and the persons or things to be seized
Fifth Amendment	no deprivation of life, liberty, or property, without due process of law no double jeopardy no obligation in any criminal case to be a witness against oneself private property cannot be taken for public use without just compensation
Sixth Amendment	right to a speedy and public trial right to an impartial jury right to be informed of the charge(s) right to cross examine with the witnesses against oneself right to gather witnesses in one’s favor right to counsel
Seventh Amendment	right to a civil jury trial
Eighth Amendment	no excessive bail or fines no cruel and unusual punishments
Ninth Amendment	the rights listed in the Constitution do not deny or reduce other rights
Tenth Amendment	the states have any powers that the Constitution did not give to the federal government
Eleventh Amendment	limits the ability of individuals to sue states in federal court
Twelfth Amendment	Revises the procedure for electing the President and Vice President (separate ballots).
Thirteenth Amendment	Abolishes slavery and involuntary servitude, except as punishment for a crime.
Fourteenth Amendment	grants citizenship to all persons born or naturalized in the U.S. guarantees equal protection under the law prohibits states from denying due process

The Fifth Amendment is also known as the due process clause. It is the reason a defendant is presumed innocent until proven guilty. The Eighth Amendment prevents a defendant from being punished disproportionately for their crime. However, some recent laws—such as federal mandatory minimums, or the California Three Strikes Law—could be interpreted as violations of the amendment. Death penalty laws have also been altered by the Supreme Court under the Eight Amendment. The Bill of Rights contains some, but not all, rights of defendants. Defendants also have procedural rights, such as the right to appeal. See Criminal Law and Criminal Procedure. 

Equal Protection of the Laws

The Fourteenth Amendment is a critical part of the Constitution. It contains the Equal Protection Clause. As its name suggests, the clause is the reason that all Constitutional rights are guaranteed equally, both at the federal and state levels. In fact, the Fourteenth Amendment specifically forbids states from denying due process and equal protection to anyone under their authority. Thanks to the Fourteenth Amendment, the Bill of Rights (originally written to apply to the federal level) now applies to the states, too. See Brown v. Board of Education, 347 U.S. 483 (1954); Gideon v. Wainwright, 372 U.S. 335 (1963); Gitlow v. New York, 268 U.S. 652 (1925); Loving v. Virginia, 388 U.S. 1 (1967); Mapp v. Ohio, 367 U.S. 643 (1961).

Limitations 

There are also limitations to the Bill of Rights. First Amendment (free speech) limitations prohibit the use of fighting words, incitement to riot, hate speech, and obscenity. An individual cannot use the First Amendment to create a clear and present danger, such as inciting a stampede of people. For example, Supreme Court Justice Holmes wrote in 1919, “you can't yell 'fire' in a crowded theater.” Second Amendment (gun rights) limitations include banning guns from convicted felons and mentally ill individuals. It is also illegal to possess a firearm near a school or government building. Some firearms limitations vary by state, too. To learn about California firearms law, visit the State Firearms (CA) Article on our website.

Conclusion

In sum, this article is a reminder that the Constitution, though centuries old, is still relevant to you today. The Constitution protects every individual (thanks to the Fourteenth Amendment), guaranteeing them rights and liberties that people living in other parts of the world may not have. There is also a system of judicial review in place to ensure protection of those rights and liberties. There are also many governmental checks and balances in place (see Federalism & The Branches of Government to learn more). Since the Constitution is the supreme law of the land, it sets a minimum standard (the constitutional floor) for other laws to follow. While this was an overview, there is always more to learn.