Understanding The Legality Of Defying The Constitution

The Constitution is a set of laws that restrict the powers of federal and state governments, outlining what they can and cannot do. It does not apply to individuals, but Congress can pass laws based on the Constitution that restrict the actions of individuals. A law or action that goes against the Constitution is deemed unconstitutional. While there is no punishment for violating the Constitution, there are consequences for breaking laws that are passed based on it. For example, a law that violates the Constitution can be challenged in court and struck down, as seen in cases where state laws were held to be unconstitutional due to conflicts with specific constitutional amendments or provisions.

Explore related products

An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know

$26 $34.95

The Constitution of the United States of America: The Declaration of Independence, The Bill of Rights

$9.99 $9.99

Constitutional Law: [Connected eBook with Study Center] (Aspen Casebook)

$238.79 $359

Constitutional Law: Principles and Polices (Aspen Treatise)

$97.38 $126.95

Constitutional Law For Dummies

$18 $29.99

The Constitution of the United States and The Declaration of Independence

$1.99 $6.95

The difference between illegal and unconstitutional

The Constitution is a limit on the powers of federal and state governments, restricting what they can do. It is not a set of laws restricting individuals, although Congress can pass laws that restrict individuals based on the Constitution.

An illegal act is one that goes against the law. Laws are passed by legislatures, such as Congress for federal laws and state legislatures for state laws. These laws apply to everyone.

Something is unconstitutional if it goes against the Constitution. The Constitution is not a law in itself but a framework for how the government should function and the laws that are allowed or not allowed. It can be changed through an amendment process that requires a large amount of the population to agree.

Constitutional violations are not generally crimes. If a constitutional violation is suspected, the remedy is to go to court, and if the court agrees, it will order the violation to stop. For example, if a town passes a law that restricts free speech, a citizen can sue the town for violating their First Amendment right to free speech. If the court agrees, it can strike down the law as unconstitutional and prohibit the town from enforcing it.

To summarise, an illegal act goes against written law, whereas an unconstitutional act goes against the framework set out by the Constitution. While laws can be passed by legislatures, the Constitution can only be changed through an amendment process that requires broad agreement.

The First Amendment and freedom of speech

The Constitution is a limit on the powers of the federal and state governments, restricting their actions. It does not restrict individuals. The Constitution allows Congress to pass laws that restrict individual actions, but a law is not the Constitution. Therefore, violating the Constitution is not, in itself, a crime.

The First Amendment to the Constitution, ratified on December 15, 1791, is commonly recognized for its protection of freedom of speech, religion, the press, and the right to assemble and petition the government. The First Amendment states:

> "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The Supreme Court has interpreted this to mean that no branch or section of the federal, state, or local governments can infringe on Americans' freedom of speech. However, private organizations such as businesses, colleges, and religious groups are not bound by this Constitutional obligation.

The First Amendment also protects the free expression of faith for all Americans. This was a pivotal tenet of the American Revolution, defended by James Madison, the lead author of the First Amendment. The Supreme Court has gone back and forth on whether individuals or groups can be forced to comply with policies that may contradict their religious beliefs.

The right to assemble and petition is an expansion of the core freedom of expression. The right to assemble extends freedom of speech to groups, and is often manifested in the form of protests. The right to assemble has been used by political parties, civil rights organizations, and more. The right to petition has been considered obsolete or irrelevant by some, but it has significant historical importance.

The right to be free from cruel and unusual punishment

The Constitution of the United States is a limit on the powers of the Federal and State governments, restricting what they can do. It does not restrict individuals. The Constitution guarantees the right to be free from cruel and unusual punishment, as outlined in the Eighth Amendment. This right was first established in the English Bill of Rights in 1689, later adopted by American colonists, and became part of the US Bill of Rights in 1791.

The Eighth Amendment prohibits cruel and unusual punishments, and this has been interpreted in various Supreme Court cases over the years. For example, in Estelle v. Gamble (1976), the Supreme Court established that the Eighth Amendment may be violated due to factors related to a prisoner's confinement. A prison guard's deliberate indifference to a prisoner's serious illness or injury would constitute cruel and unusual punishment. Similarly, in Hope v. Pelzer (2002), the Court found that handcuffing a prisoner to a hitching post for seven hours, taunting them, and denying them bathroom breaks violated their Eighth Amendment rights.

The Supreme Court has also ruled that some applications of the death penalty are cruel and unusual punishments, such as the execution of mentally disabled people or those who were under 18 at the time of their crime. In addition, prison overcrowding can result in cruel and unusual punishment if it leads to medical care violations.

While the Constitution protects individuals from cruel and unusual punishment by the government, it does not apply to private person-to-person affairs. For example, a wiretap may violate an individual's privacy, but it would not be considered a violation of the Constitution. Instead, it would be a violation of criminal code, such as voyeurism or unlawful recording.

Explore related products

Constitutional Law (University Casebook Series)

$296.95

Constitutional Law: a QuickStudy Laminated Reference Guide

$8.32 $8.95

Examples & Explanations for Constitutional Law: National Power and Federalism (Examples & Explanations Series)

$59.81 $76.95

A Short & Happy Guide to Constitutional Law

$28 $28

Constitutional Law [Connected eBook with Study Center] (Aspen Casebook)

$95 $345

Examples & Explanations for Constitutional Law: Individual Rights (Examples & Explanations Series)

$76.95 $76.95

The right to be free from unreasonable searches and seizures

The US Constitution is a limit on the powers of federal and state governments, restricting what they can do. It does not restrict individuals. The Fourth Amendment of the US Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". This right to privacy and freedom from unreasonable government intrusion is a fundamental constitutional guarantee.

To obtain a search warrant or arrest warrant, a law enforcement officer must demonstrate probable cause that a search or seizure is justified. A court authority, typically a magistrate, will consider all the circumstances to determine whether to issue a warrant. In general, a search or seizure without a warrant is considered unreasonable, except in a few cases. For example, a warrantless search of a probationer's residence is not considered a violation of the Fourth Amendment if the officer has "reasonable grounds" to believe the probationer has failed to comply with the terms of their probation. Similarly, warrantless searches and seizures of abandoned property or property in an open field do not violate the Fourth Amendment, as there is no reasonable expectation of privacy.

In cases of warrantless searches and seizures, the court will balance the degree of intrusion on the individual's privacy with the need to promote government interests. The court will consider the totality of the circumstances to determine if the search or seizure was justified. Under the exclusionary rule, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings.

While the Fourth Amendment provides important protections, the doctrine of qualified immunity can undermine these rights. Qualified immunity is a legal doctrine that shields government officials from being held personally liable for constitutional violations. This loophole was created by the Supreme Court, and it has been criticised for making it extremely difficult to hold officials accountable for misconduct.

The right to be free from racial discrimination

The Constitution limits the powers of the Federal and State governments, restricting what they can do. It does not restrict individuals. While the Constitution does not contain a clause stating that it is self-effectuating, it does work vertically from the government to the people, meaning that a person cannot violate the Constitution by acting against someone else.

The concept of equal protection under the law has evolved since the creation of the American republic, now including people who did not enjoy this right in 1787. The Fourteenth Amendment marked a significant shift in American constitutionalism, imposing far more restrictions on the states than before the Civil War. The Equal Protection Clause, which was a primary motivation for the Fourteenth Amendment, validated the equality provisions in the Civil Rights Act of 1866, guaranteeing that all citizens would have the right to equal protection by law. The Supreme Court has interpreted the Fourteenth Amendment to extend beyond race, protecting women from sex discrimination and religious groups from discrimination.

Despite these constitutional protections, racial discrimination has been a constant theme in American history. Even today, qualified immunity undermines constitutional rights, including the right to be free from racial discrimination, by providing a loophole for government officials to avoid accountability for excessive force used disproportionately against people of color.

Frequently asked questions