What Is Constitutional Law? Understanding the Basic Components
By Ashley Brooks on 05/13/2019
There’s nothing like a good legal drama to catch your attention. You love watching the law play out on TV shows, true crime podcasts and even in real life! If the legal system interests you, you’ve probably seen the term “constitutional law” thrown about without giving it much thought until now.
What is constitutional law? This legal specialty focuses on interpreting the Constitution as it applies to the U.S. government and legal disputes. Constitutional law is part history lesson, part legal drama—and it’s essential to understanding some of the biggest cases circling the courts these days.
We spoke with constitutional law experts to bring you the scoop on how this area of law works and why it’s so important to the nation’s legal system.
The foundation of our nation
The Constitution was written in 1787, forming the basis of the U.S. government and guaranteeing basic human rights for our citizens. It sounds like it should be simple to follow the rules laid out by the Founding Fathers, but the truth is that constitutional law can be quite complicated.
“As new economic and social problems arise, the Constitution does not provide a direct answer,” says Nora V. Demleitner, the Roy L. Steinheimer, Jr. Professor of Law at Washington and Lee University School of Law. “Also, its language is relatively sparse.”
The truth is that it’s not easy to decide how a document that’s hundreds of years old should be used to guide our government and legal system today. That’s where differing interpretations come in. Those in constitutional law use interpretations to determine how the Constitution should be applied to modern-day issues that weren’t on the Founding Fathers’ radar in the late 18th century.
Interpreting the Constitution
The interpretation of the Constitution is a heated topic in the legal world. “Constitutional scholars are usually grouped into two distinct categories: originalist and non-originalist,” says attorney Falen O. Cox, partner at Cox, Rodman & Middleton, LLC.
The originalists generally take a narrow approach to the Constitution, trying to interpret it as it would have been back in 1787. Non-originalists have a broader view, seeing the Constitution as “a living document,” Cox says. “They consider it to be more of a framework for governance as opposed to an all-encompassing document that explicitly addresses all relevant issues.” Of course, there are also shades of gray between these polarized views, with plenty of legal experts landing in the middle of the spectrum.
Regardless of how they interpret the Constitution, most legal professionals would agree that they’re just trying to do what’s best for the country. “One thing that originalists and non-originalists have in common is that they believe their way is right and in the best interest of the nation,” Cox says.
These are a few of the modern-day issues that are regularly debated in constitutional law.
The Fifth and Fourteenth Amendments both reference “due process of the law” as a right. In short, this means that people who are accused of a crime are allowed a legal trial before they are incarcerated or have their property removed. This legal terminology isn’t as simple as it seems. Controversies over due process are raging in relation to detaining immigrants and sexual assault cases.
Freedom of speech
U.S. citizens enjoy the right to say what they want, when they want—sort of. Courts ruled in 1919 that this right does not extend to speech that poses a “clear and present danger” to society. However, hate speech has been ruled as a protected form of speech as long as it does not include calls to act violently toward others.
Right to privacy
Privacy issues frequently make headlines, thanks to the routine collection of data that occurs every time we interact with technology. The amount of control citizens have over the data that’s collected and how it’s used is a constitutional issue the Founding Fathers never could have seen coming. Recent years have seen Supreme Court rulings on digital privacy rights, and there will surely be more cases related to privacy in the future.
Constitutional law: Affecting citizens every day
The implications of constitutional law stretch far beyond the courtroom. Differing interpretations can impact the daily lives of American citizens in ways you may not have guessed.
“The limits of the Constitution, and especially its Amendments, are tested in courtrooms throughout the country every day; most of us just don’t witness it,” Cox says. She shares the example of Fourth Amendment rights relating to unlawful search and seizure, which come up often in criminal court proceedings.
Rulings on the Fourth Amendment in criminal cases might seem like they only affect accused criminals. “However, what these cases and constitutional interpretations really do is tell us how far the government can go to learn information about its citizens,” Cox says. “Today it’s applicable to proving whether or not an accused broke the law. Tomorrow it could be applicable to proving whether or not a citizen supported a particular political candidate, or whether a citizen belongs to a certain club or organization.”
Most law is constitutional law
Our legal experts agree that there aren’t many lawyers who specialize in constitutional law. “Some lawyers, however, work on a greater share of constitutional issues than others,” says Demleitner. She shares that lawyers and paralegals working for activist organizations such as the ACLU are more likely to focus on purely constitutional issues, like freedom of speech.
“Many lawyers (and their paralegals) can encounter constitutional questions in their practice, though,” Demleitner adds. Legal professionals in many specialties can run into constitutional law in their everyday work, such as a real estate lawyer interpreting the government’s right to property through eminent domain, or a criminal lawyer working with search and seizure issues.
The Constitution is the basis for our entire legal system, so it’s not surprising that nearly all legal professionals will come in contact with constitutional law at some point in their careers.
Shaping the nation with constitutional law
What is constitutional law? This specialty touches on nearly every aspect of the U.S. legal system.
Now that you’ve heard some of the details of constitutional law, you might be wondering what other legal specialties are out there. Find out in our article “8 Types of Law You Might Encounter as a Paralegal.”