What Is Constitutional Law?

When disputes arise over government authority or individual rights, constitutional law provides the framework courts use to resolve them.

Landmark U.S. Supreme Court decisions like Dobbs v. Jackson Women’s Health Organization (2022) and Obergefell v. Hodges (2015) have increased interest in constitutional law. It may surprise some people to learn how much constitutional law influences their daily lives. They’re accustomed to thinking about the U.S. Constitution in the context of civil rights and the First Amendment. Occasionally, they may think about criminal rights and the Miranda warning.

What Does Constitutional Law Cover?

Constitutional law focuses on the legal rights and prohibitions spelled out in the U.S. Constitution, plus related case law. Civil and criminal cases brought under the Constitution have created the case law that governs this area.

States have their own constitutions that in many ways mirror the federal constitution. These constitutions guarantee the same rights in the states as the U.S. Constitution guarantees across the nation. State constitutions may establish different rights and prohibitions. They may not remove any federal rights.

If there is any dispute between a state’s constitution and the U.S. Constitution, the U.S. Constitution prevails. This is because of the supremacy clause, a section of the U.S. Constitution that says federal law takes priority over state laws.

Whenever there is a dispute between what an individual wants to do and what the government says they should do, it involves constitutional law. Federal and state constitutions describe:

• The branches of government
• The powers and responsibilities of each branch
• How the branches interact

When a lower court sends a case to the U.S. Supreme Court, or Congress sends a bill to the president for a signature, constitutional law describes these details based on the Constitution.

The Role of Constitutional Lawyers

Cases that involve constitutional law require attorneys who understand that branch of law. Not all attorneys understand all areas of the law equally. Someone who is accused of a crime contacts a criminal defense lawyer. That attorney knows the penal code in their state and can help the defendant fight the charges.

The defendant has the right to an attorney under the Constitution. In the civil rights case Gideon v. Wainwright (1963), the Supreme Court found that indigent defendants had a right to the assistance of counsel even if they could not afford one. The Sixth Amendment of the Constitution guarantees this right. The public defender’s office handles indigent defense in every state.

Any lawyer should be able to name your First Amendment rights, but they may not know the best way to handle more complex arguments. When defense attorneys need legal advice on constitutional matters, they contact constitutional law attorneys. Among the common matters with which your attorney might need a constitutional lawyer’s help:

• Contract law: The contract clause of the Constitution governs contracts. States cannot interfere with contracts or contractual obligations.
• Due process: You have a right to procedural due process, which requires evenhanded procedures if the law might deprive you of “life, liberty, or property.” Substantive due process requires laws to have a reasonable purpose. The Fifth and 14th amendments guarantee procedural and substantive due process.
• State laws: States may not enact laws that contradict federal law or the U.S. Constitution. If a state law violates the Constitution or any of the rights and privileges it guarantees, a constitutional attorney can review the facts.

Understanding the Constitution

Attorneys attend law school to learn about the Constitution. But the average person doesn’t know enough about the document. Reviewing a few key aspects of the Constitution can help you understand what happens in court and in government every day.

Article I: The Legislature

The first section of the Constitution defines and describes the legislative branch, meaning Congress. It has two chambers: the House of Representatives and the Senate. This article limits what Congress can and can’t do and how it can delegate power.

Article II: The Executive

The second section defines the executive officer of the United States. It lists the officers of the president’s Cabinet and who may serve in the nation’s most powerful job.

Article III: The Judiciary

The third section creates the court system, including the U.S. Supreme Court and other federal and state courts. The Constitution did not create judicial review, which made the judicial branch co-equal with the legislative and executive branches. That did not happen until the decision Marbury v. Madison (1803). The case gave the Supreme Court the power to consider laws passed by Congress and throw them out if they conflict with the Constitution.

Article IV: The States

The fourth section gave Congress the power to oversee the existing states and create new ones as the nation expanded. Key sections of this article are the “full faith and credit” clause, which makes contracts and court orders as valid in one state as in the state that made them, and the “privileges and immunities” clause, which guarantees equal treatment to citizens of all states.

The Bill of Rights

Nearly everyone knows something about the Bill of Rights, another name for the first 10 amendments made to the Constitution. But many don’t realize that the Bill of Rights does not grant people rights. Instead, it prevents the government from taking them away.

Among some important amendments to know:

• The First Amendment defines rights that include freedom of speech, of the press, of assembly, and of exercise of religion.
• The Fourth Amendment guarantees your right to privacy. Specifically, it focuses on your right to be “free of unreasonable search and seizure.” It says government agencies must have a warrant signed by a judge and describe “the property to be searched and the items to be seized” before they can search you or your home. Under the Fourth Amendment, “probable cause” to suspect a crime can also lead to a search.
• The Fifth Amendment protects your right against self-incrimination, the right to a fair trial, and the right to due process. The Fifth Amendment prevents “double jeopardy” — that is, being tried twice for the same crime. The Fifth Amendment also includes the so-called takings clause, which prevents the federal government from taking property without just compensation.
• The Sixth Amendment includes your right to counsel, a speedy trial, a trial by jury, and the right to confront witnesses and know the charges against you. The Fifth and Sixth Amendments have become the famous Miranda warning.
• The Eighth Amendment prevents “cruel and unusual punishment.” Punishment in the 18th century could be cruel and unusual indeed. Case law has since expanded this definition to include disproportionate sentencing, unfair treatment by law enforcement, and harsh prison conditions.
• The Ninth Amendment and 10th Amendment together acknowledge “other unenumerated rights.” They say that the failure to include other rights within the Constitution does not mean those rights do not exist. The 10th Amendment also applies to states’ rights issues. It limits the federal government’s powers to those outlined in the Constitution.

Not all constitutional law issues are decided in federal courts. Most begin in local courtrooms, where legal professionals practice criminal, civil rights, and contract law. If you have a case in any practice area, it may still touch on constitutional law matters.

Constitutional Attorneys Protect and Defend Constitutional Rights

How To Find a Constitutional Attorney Near You

A constitutional lawyer can protect your rights and explain your legal options if you face a constitutional legal issue. For example, if your right to free speech, due process, or equal protection has been violated, a constitutional attorney can step in when your fundamental rights are on the line.

FindLaw’s directory of constitutional lawyers can get you started. Enter your city or ZIP code for a list of qualified legal advisors in your area. Your search results will also show ratings and contact information. Many law offices offer free case evaluations.