Constitutional Law

The written text of the state and federal constitutions. The body of judicial precedent that has gradually
developed through a process in which courts interpret, apply, and explain the meaning of particular
constitutional provisions and principles during a legal proceeding. Executive, legislative, and judicial
actions that conform with the norms prescribed by a constitutional provision.The text of the U.S.
Constitution is marked by four characteristics: a delegation of power, in which the duties and prerogatives
of the executive, legislative, and judicial branches are delineated by express constitutional provisions; a
Separation of Powers, in which the responsibilities of government are divided and shared among the
coordinate branches; a reservation of power, in which the sovereignty of the federal government is
qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the
prerogatives of the three branches of government are restricted by constitutionally enumerated individual
rights, Unenumerated Rights derived from sources outside the text of the Constitution, and other
constraints inherent in a democratic system where the ultimate source of authority for government action
is the consent of the people.
In deciding their cases, courts look to these constitutional provisions and principles for guidance. Once a
court has interpreted a constitutional provision in a certain fashion, it becomes a precedent. Under the
doctrine of Stare Decisis, the judicial branch is required to adhere to existing precedent in all future
cases presenting analogous factual and legal circumstances, unless it has a compelling reason for
deviating from the precedent or overruling it.
A state or federal law is said to be constitutional when it is consistent with the text of a constitutional
provision and any relevant judicial interpretations. A law that is inconsistent with either the written text or
judicial interpretation of a constitutional provision is unconstitutional.

The Constitution
The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law has been
built. By establishing a structure for the federal government and preserving certain areas of sovereignty
for the states, the Constitution has created a system of government that has allowed every area of civil,
criminal, and ADMINISTRATIVE LAW to evolve with the needs of society. The federal Constitution became
binding on the U.S. people in 1788 when New Hampshire, pursuant to Article VII, became the ninth state
to vote for ratification.
The federal Constitution comprises seven articles and 26 amendments. Articles I, II, and III set forth the
basic structure of the U.S. government. Article I defines congressional lawmaking powers, Article II sets
forth the presidential executive powers, and Article III establishes federal judicial powers. The first ten
amendments to the U.S. Constitution, known as the Bill of Rights, enumerate certain individual liberties
that must be protected against government infringement. The rest of the Constitution contains
miscellaneous other provisions, many of which are intended to maintain a federalist system of
government in which the federal Constitution is the supreme law of the land and the federal government
shares sovereignty with the states.
Article I: The Lawmaking Power Article I of the Constitution allocates the lawmaking power to Congress.
Section 1 provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and a House of Representatives." Article I also requires
that candidates running for the House of Representatives be elected directly by the residents of each
state. Originally, Article I endowed the state legislatures with the power to choose members of the Senate.
However, the Seventeenth Amendment now requires all senators to be elected directly by the people of
their home state.
Section 8 enumerates specific lawmaking powers that Congress may exercise. These include the power
to declare war; raise and support armies; provide and maintain a navy; regulate commerce; borrow and
coin money; establish and collect taxes; pay debts; establish uniform laws for immigration, naturalization,
and Bankruptcy; and provide for the common defense and General Welfare of the United States. Both

the Senate and the House must approve all bills before they are submitted to the president. If the
president vetoes a bill, Section 7 authorizes Congress to override the Veto by a two-thirds vote in both
houses. Because Congress is a public body, this article requires the House and Senate to record and
publish its proceedings, including the votes made by any of its members.
Section 8 also grants Congress the power to pass all laws that are "necessary and proper" to the
performance of its legislative function. In MCCULLOCH V. MARYLAND, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579
(1819), the Supreme Court broadly interpreted the Necessary and Proper Clause to grant Congress the
implied powers to enact all laws that are useful, convenient, or essential to fulfilling its lawmaking and
fiscal responsibilities. Thomas Jefferson had earlier argued that the Necessary and Proper Clause
authorized Congress only to enact measures that are indispensable to the implementation of the
enumerated powers.
Congress frequently relies on its authority to regulate commerce as a justification for the legislation it
enacts. Section 8 gives Congress the "power to regulate commerce among the several states." In
GIBBONS V. OGDEN, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), the Supreme Court ruled that congressional
power to regulate commerce is plenary (complete in itself) and extends to all interstate commerce
(commercial activity that concerns more than one state). The Court said that intrastate commerce
(commercial activity that is conducted exclusively within one state) is beyond the reach of this
congressional power.
Congressional commerce power reached its zenith in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L.
Ed. 122 (1942), where the Supreme Court ruled that Congress has authority to regulate a family farm that
produces and consumes its own wheat. The Court said that "even if [a farm's] activity be local, and
though it may not be regarded as commerce, it may still be reached by Congress, if it exerts a
substantial economic effect on interstate commerce irrespective of whether such effect [is] direct or
indirect."
This seemingly unfettered power was later limited, in United States v. Lopez, 514 U.S. 549, 115 S. Ct.
1624, 131 L. Ed. 2d 626 (1995), where the Supreme Court ruled that mere possession of a gun at or near
a school does not substantially affect interstate commerce and may not be regulated at the federal level.
Although the interstate commerce power has been given an expansive reading in modern times, the
Court said in Lopez, the scope of congressional authority in this area
must be considered in light of our dual system of [state and federal] government and may not be
extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace
them, in view of our complex society, would effectually obliterate the distinction between what is national
and what is local and create a completely centralized government.
Article I of the Constitution not only delegates specific powers to Congress, it also forbids Congress to
take certain action. Section 9, for example, prohibits Congress from passing bills of attainder and Ex Post
Facto Laws. (A bill of attainder is a legislative act that imposes punishment on a party without the benefit
of a judicial proceeding. An ex post facto law makes criminal or punishes conduct that was not illegal at
the time it occurred.) Section 9 further prohibits Congress from suspending Habeas Corpus (a citizen's
right to protection against illegal imprisonment) except as may be necessary to preserve national security
in time of rebellion or invasion. Although the Constitution delegated this power to Congress, President
Abraham Lincoln suspended habeas corpus during the Civil War without congressional assent. Article I
also restricts the power of state legislatures, such as the power to make treaties, alliances, and
confederations, are also prohibited by Article I.
Article II: The Executive Power Congressional power is not absolute. The Framers of the Constitution
were familiar with the abuses of absolute power. In the century preceding the American Revolution,
Parliament acquired unlimited sovereignty. This arrangement replaced an earlier system of government in
which the English monarchy ruled with a tyrannical scepter. In the United States, the Framers sought to
create a system of checks and balances in which the executive and legislative branches would share
power with each other and with the judiciary. In this light, many of the powers delegated to the president
must be viewed in conjunction with the powers delegated to the coordinate branches of government.

Article II provides that "[t]he executive Power shall be vested in a President of the United States [who]
shall hold Office during the Term of four Years together with the Vice President." The Electoral
College, which provides the method by which the president and vice president are elected, derives its
constitutional authority from Article II as well as from the Twelfth and Twenty-third Amendments. The
Twenty-Second Amendment limits the president to two terms in office, and the Twentieth and Twentyfifth Amendments set forth the order of succession for presidents who are unable to begin their term or
continue in office.
Article II, Section 2, makes the president the commander in chief of the armed forces. Yet only Congress
has the power to declare war. Between these two powers lies a gray area in which presidents have
exercised the prerogative to commit U.S. troops to foreign military excursions without congressional
approval. The U.S. involvement in the Vietnam War resulted from one such exercise of power. In
response to these executive maneuvers, Congress passed the War Powers Resolution (Pub. L. No. 93148 [ codified at 50 U.S.C.A. 1541 et seq.]), which restricts the president's authority to involve the
United States in foreign hostilities for more than 60 days without the approval of Congress.
The president also shares power with Congress in other areas under Article II. Section 2 authorizes the
president to make treaties with foreign governments, but only with the advice and consent of the Senate.
The president must also seek senatorial approval when appointing ambassadors; federal judges,
including Supreme Court justices; and other public ministers.
Section 4 states that the president may be removed from office only through Impeachment for "Treason,
Bribery, or other High Crimes and Misdemeanors." The House is responsible for drafting Articles of
Impeachment (accusations of misconduct), and the Senate is responsible for holding an impeachment
trial. A two-thirds vote in the Senate is required for conviction.
The United States revisited the issue of what constitutes a High Crime and Misdemeanor during the
impeachment proceedings against President William Jefferson Clinton. In 1998 the U.S. House of
Representatives approved two articles of impeachment against President Clinton, accusing the president
of having committed the crimes of perjury and Obstruction of Justice to conceal his relationship with a
White-House intern named Monica Lewinsky. The impeachment trial was then held before the Senate
from January 7, 1999, through February 12, 1999.
Clinton supporters generally opposed impeachment on grounds that concealing a private, extramarital
affair should not constitute an impeachable high crime or misdemeanor. Clinton detractors generally
supported impeachment on grounds that perjury and obstruction of justice are felony-level offenses that
render a chief executive who is guilty of such offenses incompetent to discharge the duties of his office.
Clinton supporters contended that past presidents had concealed their extramarital affairs without it rising
to the level of an impeachable offense, while Clinton detractors countered by arguing that the president
was not being impeached for having an extramarital affair but for committing crimes to conceal it.
Scholars debated the merits of the Clinton impeachment proceedings as well. However, constitutional
historians on both sides of the debate generally agreed that the phrase High Crimes and Misdemeanors
had no settled usage at the time the Constitution was ratified by the states, except that the Founding
Fathers rejected proposals that would have allowed for impeachment in cases of maladministration,
malpractice, or neglect of duty. The Founding Fathers favored a chief executive who was subject to
constitutional checks and balances, but not one who was weak and easy to remove by political
opponents. In the end, the Senate voted to acquit President Clinton. Neither article of impeachment was
supported by even a majority of votes, far short of the 67 votes required to convict.
Although the president participates in the lawmaking process by preparing budgets for congressional
review, recommending legislation on certain subjects, and signing and vetoing bills passed by both
houses, no formal lawmaking powers are specifically delegated to the Executive Branch. The president
nonetheless "legislates" by issuing executive orders, decrees, and proclamations. No express provision of
the Constitution delineates the parameters of this executive lawmaking power. However, in YOUNGSTOWN
SHEET & TUBE CO. V. SAWYER, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the Supreme Court set
forth some guidelines. Known as the Steel Seizure case, Youngstown examined the issue of whether the
president of the United States could order the government seizure of steel mills that were crippled by a

labor strike during the Korean War. In holding the Executive Order unconstitutional, the Supreme Court
ruled that "the President's power to see that the laws are faithfully executed refutes the idea that [the
president] is to be a lawmaker."
Justice ROBERT H. JACKSON, in a concurring opinion, set forth an analysis by which the Supreme Court has
subsequently evaluated the constitutionality of presidential action. Jackson opined that Presidential
Powers are not fixed, but fluctuate according to "their disjunction or conjunction with those of Congress."
When the president acts pursuant to congressional authorization, the action carries maximum authority.
When the executive acts contrary to congressional will, presidential powers are at their lowest ebb.
Between these positions, when a president faces an issue on which Congress is silent, the executive acts
in "a zone of twilight in which [the president] and Congress may have concurrent authority, or in which the
distribution is uncertain." In such instances, Jackson reasoned, courts must balance the interests of the
parties and of society to determine if a particular executive action has violated the separation of powers.
Another area that has stirred debate over the appropriate separation of powers involves the delegation of
legislative, executive, and judicial authority to federal administrative bodies. Since the mid-1930s, the
United States has seen an enormous growth in the administrative state. Administrative agencies have
been created to establish, evaluate, and apply rules and policies over a diverse area of law, including
taxes, Securities, transportation, antitrust, the environment, and employment relations. Federal
administrative bodies are created by statute, and Congress has the authority to prescribe the
qualifications for administrative officials who are appointed by the president, courts of law, and heads of
government departments.
The NATIONAL LABOR RELATIONS BOARD (NLRB) demonstrates the overlapping powers that may be
exercised by an administrative body. The NLRB is empowered by statute to issue regulations that govern
union activities. Such regulations are virtually indistinguishable from legislative enactments and are
considered no less authoritative. The NLRB also adjudicates disputes between unions and employers,
with an administrative law judge presiding over such cases. Finally, the NLRB is endowed with the power
to make prosecutorial decisions, a power traditionally exercised by the executive branch. Although
successful challenges have been lodged against the delegation of certain powers to federal administrative
bodies, by and large, the Supreme Court has permitted administrative officials and agencies to play all
three government roles.
Article III: The Judicial Power Article III provides that "[t]he judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain
and establish." Pursuant to this constitutional authorization, Congress has created a federal judicial
system comprising a lower tier of federal trial courts, known as the U.S. district courts, and an
intermediate tier of federal appellate courts, known as the U.S. Courts of Appeals. At least one federal
district court is located in each of the 50 states.
The federal appellate courts consist of 11 numbered circuit courts plus the Court of Appeals for the District
of Columbia and the Court of Appeals for the Federal Circuit. Each federal appellate court has jurisdiction
over a certain geographic area and may only hear appeals from federal district courts within that
jurisdiction. Specialized courts of appeals have been created to hear appeals concerning such disputes
as international trade (the court of International Trade) and military matters (the Court of Military Appeals).
Parties aggrieved by a decision made by any of these federal appellate courts may appeal their case to
the Supreme Court, which has the ultimate judicial power. Cases that originate in state court and present
a federal question may also be appealed to the U.S. Supreme Court.
The Supreme Court is not required to hear every case that is appealed to it; instead, the Court has broad
discretion to accept or decline cases that are appealed by a lower court. Only four justices need to vote in
favor of hearing an appeal before a writ of certiorari will be granted. Certiorari is a device that allows the
Supreme Court to call up the records of a lower court and review them in order to identify important legal
questions that need to be resolved. Granting "cert" has no bearing on the Court's subsequent resolution
of a case. The Court is asked to review about 5,000 cases a year and grants certiorari in less than 250 of
them.

Federal courts do not have jurisdiction to hear every kind of lawsuit. Article III lists certain types of cases
that may be heard by the federal judiciary, including cases arising under the Constitution; under treaties
with foreign nations; and under federal laws passed by Congress, the executive, or an administrative
body. Federal courts also have jurisdiction to hear lawsuits between two or more states, between citizens
of different states, and between a citizen or government of one state and a citizen or government of a
foreign country.
The Supreme Court has original jurisdiction over cases involving ambassadors and other public ministers
as well as cases in which a state government is a party. Original jurisdiction gives a court the power to
hear a lawsuit from the beginning, rather than on appeal. This grant of original jurisdiction does not
preclude Congress from giving original jurisdiction to other courts over the same matters. In fact,
Congress has granted concurrent original jurisdiction to the federal district courts for all controversies
except those between state governments.Nowhere in Article III, or elsewhere in the Constitution, is the
power of the federal judiciary defined. Historically, the role of English and U.S. courts was to interpret and
apply the laws passed by the other two branches of government. At the close of the eighteenth century, it
was unclear whether that role included the prerogative of Judicial Review, which is the authority of state
and federal courts to review and invalidate laws passed by legislatures that violate a constitutional
provision or principle.
In MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the U.S. Supreme Court clarified this
Ambiguity by pronouncing that it "is emphatically the duty of the judicial department to say what the law
is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two
laws conflict with each other, the court must decide on the operation of each." Because the federal
Constitution is the supreme law of the land, the Court reasoned, any laws that violate the Constitution
must be declared void. It was the essence of judicial duty, the Court intimated, for judges to evaluate the
constitutionality of a particular act, because judges are not elected and are therefore independent from
the political considerations that may have motivated the popular branches of government to enact that
law. The Court reasoned that the executive and legislative branches could not be impartial arbiters of their
own laws.

The Bill of Rights

When the U.S. Constitution was ratified by the states in 1789, it contained no bill of rights. During the last
days of the Constitutional Convention, one of the delegates proposed that a bill of rights be included, but
this proposal was voted down by every state. Many Framers of the Constitution believed that there was
no need for a bill of rights because the powers of Congress and of the president were explicitly
enumerated and limited, and no provision of the Constitution authorized any branch of government to
invade the personal liberties of U.S. citizens.
Other Framers were concerned that any list of rights would be hopelessly incomplete and that the
government would deny any liberties left unmentioned. This concern was ultimately expressed by the
Ninth Amendment to the U.S. Constitution, which provides that "[t]he enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by the people." The Ninth
Amendment was later relied on by the Supreme Court to recognize the unenumerated right of married
adults to use Birth Control (GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510
[1965]).
By 1791, the need for a bill of rights was viewed in a different light. The residents of the states soon
realized that government by the will of the majority not only achieved democracy, it sometimes achieved
majoritarian tyranny. The system of checks and balances created by the original Constitution was
insufficient to avoid the pitfalls of absolute power endemic to the English form of government that the
American colonists had overthrown. A bill of rights was needed to serve as a bulwark between individual
liberty and Arbitrary government power.
As with each of the 26 amendments to the Constitution, the Bill of Rights was proposed by a two-thirds
majority in both houses of Congress and ratified by three-fourths of the states as required by Article V.
The Bill of Rights, which comprises the first ten amendments to the Constitution, contains both procedural
and substantive protections. In some instances, these protections guarantee the right to do, say, or

believe something without government interference. In other instances, these protections guarantee the
right to refrain from doing, saying, or believing something without government coercion.
The first three amendments provide substantive protections. The First Amendment guarantees Freedom
of Speech, press, religion, assembly, and petition. The Free Speech Clause protects "thoughts that we
hate" (United States v. Schwimmer, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed. 889 [1929] [Holmes J.,
dissenting]). Such thoughts can be expressed verbally, as in a racially derogatory remark, or in writing, as
in a Marxist-Leninist pamphlet denouncing the U.S. government, and still receive First Amendment
protection. The First Amendment also protects certain symbolic expression, such as burning the U.S. flag
in protest over government policy ( TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342
[1989]). The Supreme Court has ruled that no political speech may be curtailed by the government unless
it presents a Clear and Present Danger of imminent lawless action (Brandenburg v. Ohio, 395 U.S. 444,
89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]).
The Free Press Clause prohibits the government from censoring news stories in the print and electronic
media merely because the content is critical of the government. However, the Founding Fathers did not
agree on the definition of censorship.
A majority of the Founding Fathers adhered to the English Common Law view articulated in the
eighteenth century by Sir William Blackstone, who equated a free press with the doctrine of no Prior
Restraint. This doctrine provides that a publication cannot be suppressed by the government before it is
released to the public. Nor can publication of something be conditioned upon judicial approval before its
release.
While the English common law prohibited prior restraint, it permitted prosecution for libelous and seditious
material after publication. Thus, the law protected vituperative political publications only insofar as the
author was prepared to serve time in jail or pay a fine for offending the sensibilities of the wrong person.
A minority of Founding Fathers adhered to the view articulated by James Madison, who said that
The security of the freedom of the press requires that it should be exempt, not only from previous restraint
of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from
the previous inspection of licensers, but from the subsequent penalty of laws.
Madison was concerned that authors would be deterred from writing articles assailing governmental
activity if the government was permitted to prosecute them following release of their works to the public.
In Near v. Minnesota, 283 U.S. 697, 51 S. Ct 625, 75 L. Ed. 2d 1357 (1931), the Supreme Court
incorporated the doctrine of no prior restraint in First Amendment Jurisprudence, when it ruled that under
the Free Press Clause there is a constitutional presumption against prior restraint which may not be
overcome unless the government can demonstrate that Censorship is necessary to prevent a clear and
present danger of a national security breach. In NEW YORK TIMES V. UNITED STATES, 403 U.S. 713 92 S.Ct
2140, 29 L. Ed.2d 822 (1971) the Court applied this presumption against the United States Justice
Department which had sought an Injunction to prevent the publication of classified material revealing
the secrecy and deception behind American involvement in the Vietnam War. If this classified material,
also known as the Pentagon Papers, had threatened American troops by disclosing their location or
movement, the Court said, publication would not have been permitted.
The Supreme Court's interpretation of the Free Press Clause has also gone a long way toward adopting
Madison's sentiments against subsequent punishments for publishers of materials criticizing public
officials. In a series of cases the Supreme Court has held that the First Amendment protects media outlets
from being held liable in civil court for money damages merely because a published story contains an
inaccuracy or falsehood about a public official. The Supreme Court has ruled that the media are immune
from LIBEL actions brought by public officials unless the plaintiff can demonstrate that a particular story
was printed or aired with knowledge that it was false or in reckless disregard of its veracity, a principle that
has become known as the "actual-malice" standard ( NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct.
710, 11 L. Ed. 2d 686 [1964]). Finally, the media cannot be punished with civil or criminal sanctions for
publishing pornographic material unless that material rises to the level of Obscenity (MILLER V.
CALIFORNIA, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).

The First Amendment contains two religion clauses. One guarantees the free exercise of religion. In most
instances, the Free Exercise Clause prohibits the government from compelling a person to act contrary to
his or her religious beliefs. For example, in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d
15 (1972), the Supreme Court held that a state cannot compel Amish parents to send their children to
school past the eighth grade when doing so would violate their religious faith. However, in Reynolds v.
United States, 8 U.S. 145, 25 L. Ed. 244 (1879), the Supreme Court refused to exempt Mormons from a
federal law against bigamy, reasoning that Polygamy was more a religious practice than a religious
belief.
The other religion clause in the First Amendment prohibits the government from establishing religion. The
Framers drafted the Establishment Clause to prevent the federal government from passing legislation that
would create an official national church in the United States as Great Britain had done with the Anglican
Church in England. Since the early 1970s, the Supreme Court has applied the Establishment Clause
more broadly to strike down certain forms of government assistance to religion, such as financial aid.
Such assistance will be invalidated unless the government demonstrates that it has a secular purpose
with a primary effect that neither advances nor inhibits religion nor fosters excessive entanglement
between government and religion (Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745
[1971]).
The Second and Third Amendments also provide substantive protections. The Second Amendment
acknowledges that a "well regulated Militia" is "necessary to the security of a free State," and guarantees
"the right of the people to keep and to bear Arms." The right to bear arms is not absolute. It restricts only
federal laws regulating the use and possession of firearms and has no applicability to state governments
(Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 [1886]). In addition, Congress may prohibit
the possession or use of a firearm that lacks any reasonable relationship to the preservation or efficiency
of a well-regulated militia (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 [1939]).
Federal courts have interpreted the term militia to include only military groups that are organized by the
state governments, such as the National Guard, and to exclude private military groups that are not
associated with the government, such as the Kansas Posse Comitatus (United States v. Oakes, 564
F.2d 384 [10th Cir. 1977]).
The Third Amendment, which is an out-growth of the American Revolution, prohibits the government
from compelling homeowners to house soldiers without their consent. Although the Supreme Court has
never decided a case that directly involved the forced quartering of soldiers, the Court of Appeals for the
Second Circuit ruled that the Third Amendment's protections apply to the National Guard (Engblom v.
Carey, 724 F.2d 28 [2d Cir. 1982]).
The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments contain a mixture of procedural and
substantive rights. Most of the procedural rights pertain to Criminal Law. As such, these rights offer
protection against unconstitutional actions taken by government bodies and officials, such as law
enforcement agencies and agents. These rights do not offer protection against action taken by private
citizens unaffiliated with the government. For example, the Fourth Amendment prohibits the government
from performing unreasonable SEARCHES AND SEIZURES and from issuing warrants on less than Probable
Cause. The procedural requirements of the Fourth Amendment protect homes, papers, and other
personal belongings in which an individual can demonstrate a "reasonable expectation of privacy" (Katz v.
United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 [1967]).
The Fifth Amendment offers procedural safeguards to criminal defendants and suspects. It provides that
no person shall be held to answer for a capital or infamous offense unless first indicted by a Grand Jury.
The Fifth Amendment further safeguards defendants from being "twice put in jeopardy of life or limb" for
the "same offence." It also prohibits the government from compelling someone to incriminate himself or
herself. The right to be apprised of many of these procedural protections during custodial police
interrogations, through what are known as Miranda warnings, is derived from the Fifth Amendment
(MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).
The Sixth Amendment provides a panoply of procedural protections for criminal defendants. Under the
Sixth Amendment, defendants are entitled to notice of any criminal accusations against them. The Sixth
Amendment guarantees the right to a jury trial for all crimes more serious than a petty offense. The Sixth

Amendment guarantees the right to be represented by an attorney during a criminal proceeding and
entitles indigent defendants to a state-appointed lawyer when they are charged with a misdemeanor or
more serious offense (GIDEON V. WAINWRIGHT, 372 U.S. 355, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). A
defendant's right to a speedy and public trial in which she or he can cross-examine adverse witnesses
and subpoena favorable witnesses is also protected by the Sixth Amendment.
The protections offered by the Eighth Amendment are more substantive. This amendment forbids the
government from inflicting a punishment that is "cruel and unusual." The Eighth Amendment also prohibits
the government from setting bail in an excessive amount and from imposing a fine that is disproportionate
to the seriousness of the crime. Under the CRUEL AND UNUSUAL PUNISHMENTS CLAUSE, the Supreme Court
has ruled that it is not necessarily unconstitutional for the government to execute a mentally retarded
person (Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 [1989]) or a juvenile above
the age of 15 (Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 [1989]).
Some of the protections offered by the Bill of Rights apply to civil proceedings. For example, the Seventh
Amendment guarantees the right to a jury trial in civil "Suits at common law." In condemnation
proceedings, the Fifth Amendment recognizes the power of Eminent Domain, by which the government
may appropriate a piece of property owned by a private citizen and convert it to a public use.
Concomitantly, the Fifth Amendment guarantees the right to "just compensation" for private landowners
when