What is Constitutional Law?

Constitutional law is the process of creating, maintaining and interpreting laws. It involves the executive, legislative and judicial branches of government. It ensures that the rights of citizens are protected by enforcing constitutional principles.


Congress shall have the Power to organize the Executive and Judicial Branch, raise and collect Revenue, declare War, and make all Laws necessary for carrying into Execution the foregoing Powers.

Constitutional principles

Constitutional principles are the guiding ideas that shape constitutional democracy. They are the foundation for laws and ensure that government does not violate individual rights or integrity. They include institutions such as checks and balances, judicial review, separation of powers, and limited government. These principles are binding on all people, including elected officials and public authorities, who must take an oath to faithfully follow the Constitution.

These principles grant the government certain powers and restrict what it can do. For example, they allow the government to tax people but prevent it from arresting them without cause. In addition, they provide for a separation of powers and guarantee the right to due process. This is important because it helps prevent corruption and limits the power of government over individuals.

While different political parties may disagree about broader policy goals, they can usually agree on these constitutional principles. Debates about them often revolve around how to best enforce them in practice. For example, some debates may focus on whether a judge should interpret the Constitution as a guide to social change or just stick to the letter of the law. These two theories are referred to as interpretivism and non-interpretivism. Each has its own set of arguments and has led to a variety of interpretations of the Constitution. The framers of the Constitution designed it to be a living document that could adapt to changing circumstances. They even made sure that it could be amended if necessary by calling for a convention of states or proposing an amendment through Congress.

Separation of powers

The separation of powers is a constitutional principle that establishes that certain government functions are the responsibility of different branches. It is a fundamental principle of democracy that ensures that the power of government is not concentrated in any one branch, and it provides for checks and balances to prevent abuse of that power. In addition, the separation of powers ensures that decisions are made by elected representatives and not unelected bureaucrats.

The Framers understood that a central problem of government is the tendency toward tyranny by concentrating power in the hands of a few. Therefore, they created a structure that includes the separation of powers and the checks and balances to limit this tendency. In order to avoid tyranny, the Framers divided the powers of the federal government into legislative, executive, and judicial branches with specified duties that no other branch can encroach upon.

When the separation of powers is distorted, the checks and balances lose their force to protect individuals against tyranny. For example, when courts fail to act to prevent unaccountable delegations of lawmaking powers, politicians become increasingly hesitant to take responsibility for the substantive details of legislation. The result is that people come to expect lawmaking from unelected bureaucrats who hide behind false or overstated claims of expertise.

The correct resolution of separation of powers questions requires that due respect be given to two distinct constitutional axioms. First, the Constitution delegates to Congress broad power “to make all Laws necessary and proper for carrying into Execution [the] foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”

Fundamental rights

The fundamental rights are a set of laws that protect citizens’ personal freedoms and civil liberties. These rights include freedom of religion, freedom of speech, and the right to assemble and petition the government for redress of grievances. They also require the state to maintain a well-regulated militia and guarantee that the courts can review governmental actions and treaties.

These rights are essential to a civilized society and can only be abridged in very limited cases. This is because abridgments of these rights are often based on illusory benefits (by definition) or can cause omnicide. The enumeration of these rights makes it difficult for governments to violate them. The Supreme Court has interpreted the Constitution in several ways, and it has been cautious about adding to the list of basic rights.

For example, the Court has not allowed government employees to be fired for their views on irrelevant issues. This is discrimination and violates the First Amendment. Similarly, it has not permitted government funding for parochial schools that do not comply with secular laws. It has also found that requiring children to attend school without parents is unconstitutional.

Other protections include freedom to assemble and demonstrate, the right to private property, and the freedom of the press. The Court has also ruled that the right to bear arms is constitutional, and convicted defendants must have access to all evidence used against them since the ability to examine evidence reliably is necessary for protection against arbitrary punishments.

Judicial review

Judicial review is a principle of constitutional law that states that the Supreme Court has the power to overturn laws that are unconstitutional. This power is not mentioned in the Constitution, but it is a crucial part of our legal system. It allows judges to ensure that laws are consistent with the Constitution and that they protect the rights of citizens.

The Supreme Court is obligated to consider whether the actions of the executive and legislative branches are constitutional. In addition, lower courts must follow Supreme Court decisions when interpreting a statute or applying it to a particular set of facts. In this way, the Supreme Court ensures that all laws are constitutional and are applied evenly to all citizens.

In the early years of the United States, judges interpreted constitutional principles in different ways. Some, like Elbridge Gerry and Luther Martin, argued that the federal judiciary had sufficient control over legislative encroachment through its power to “expose” laws and declare them unconstitutional.

Other, including Alexander Hamilton, believed that the constitutional law was a living document that needed to be interpreted and applied to new situations. Hamilton argued that the Supreme Court should interpret the Constitution in a way that protects the rights of the citizens. In its June 2017 Matal v. Tam decision, the Supreme Court struck down a portion of July 1946’s Lanham Act as unconstitutional.