What is Constitutional Law?

Constitutional law is the law that relates to interpreting, implementing and amending the United States constitution and the constitutions of the 50 states. It is an area of law that focuses on what the constitution says, what it means and what its limitations are. As social and political issues change and develop in the United States, attorneys who practice constitutional law bring these issues to the courts to ask for clarification about the meaning, interpretation and enforcement of the constitution.

The U.S. Constitution

The founders ratified the United States Constitution in 1787. The constitution was the result of a debate about the appropriate role of government in a free society. Some thought that the predecessor Articles of Confederation didn’t give the federal government enough power to do business. The U.S. constitution was ultimately a compromise between many competing interests and philosophies present in society at the time of the document’s drafting.

Despite many amendments throughout the years, the constitution remains the primary document that governs the government of the United States. The constitution gives power to the federal government in three branches: the legislative branch that makes the law, the executive branch that carries out the law and makes treaties and the judicial branch that interprets the law. The constitution also defines the relationship between the states and the federal government. Finally, the constitution defines an individual’s relationship to the federal government.

Major areas of the constitution and its interpretation

Due Process

Due process is the idea that the government can’t take someone’s liberty or property without a fair judicial procedure. A person accused of a crime has the right to have reasonable notice of the charges against them and an opportunity to be heard in the matter. They have the right to a fair judge or jury in their case. They have the right to cross examine witnesses and the opportunity to have an attorney. Courts must keep records of proceedings and publicly state the reasons for their decisions. You also have the right to a fair process in civil matters.

Freedom of Speech

The government can’t unduly limit the right of the people to speak, assemble and practice religion. The government can make only limited time and place restrictions on speech. If they make restrictions, they must apply the restrictions uniformly to everyone. Constitutional lawyers continue to challenge limitations on free speech, and the courts continue to struggle with the balancing act of serving both legitimate public interests and the private right to speech and expression.

Commerce Clause

A lot of the federal government’s legislative authority comes from the constitution’s commerce clause. The federal government can only regulate an industry if the industry impacts or has the potential to impact interstate commerce. The authors of the constitution wanted the federal government to regulate the relationship between states while leaving it to the states to draft the laws that they see fit.

The commerce clause is one of the most litigated parts of the constitution. Generally, the Supreme Court interprets the commerce clause in a broad, expansive way. In the Swift v. United States (U.S. 1905) case, the court said that the government can regulate an activity or industry as long as the regulation impacts something that’s going to end up in the stream of commerce. They go even further in the Wickard v. Filburn (U.S. 1942) case to say that the federal legislature can step in if an activity might have even an indirect impact on the economy.

Becoming a Constitutional Lawyer

Attorneys who practice constitutional law might work at a private law firm, a non-profit advocacy group or for the federal government. Their work might include intake for determining which cases to take, drafting initial paperwork and preparing detailed research briefs. Their work may include going to court for oral arguments and other hearings.

Some attorneys become constitutional lawyers and practice constitutional law exclusively. For example, a Supreme Court Justice and their staff attorneys work only on constitutional law cases. On the other hand, a district court judge in a small county in a state court might encounter a novel, constitutional issue only occasionally as part of running a general, local criminal and civil court.

However, even in a small, local court, judges and attorneys must consider due process each day. From reading a criminal defendant their trial rights to making sure an individual has a right to be heard in a landlord-tenant matter, all practicing attorneys and judges encounter constitutional law in their work. Not all attorneys focus on arguing new constitutional law issues and challenging the scope of the constitution. However, the constitution and its interpretation are things that touch the practice of most attorneys in some way.

Constitutional law outside the United States

Every government in the world must decide how it’s going to function. Leaders must decide if the country is going to have a constitution. Not all countries have one. If a country chooses to govern by constitution, they must decide what to put in their constitution and how to provide for judicial review.

The practice of constitutional law might include working with developing countries to determine how to draft their constitution. While some say that the U.S. Constitution is a model for governments around the world, others say that it’s a mistake to model a constitution based on the U.S. constitution. Constitutional lawyers might work with these governments to draft their constitution and consider the benefits and drawbacks of other constitutions currently in force around the world.

Why Become a Constitutional lawyer?

Constitutional law has the potential to profoundly impact American society in an instant. Some of the most influential changes in American society happen because constitutional lawyers bring cases to the court. For lawyers who enjoy politics, constitutional law is a great way to have a powerful impact on society.

For example, the 1954 case Brown v. Board of Education determined that racially segregated schools violate the equal protection clause of the U.S. constitution. The case arguably set the U.S. civil rights movement into motion. The lawyers who worked on the case have the satisfaction of knowing that they ushered in an era of social change and made a lasting difference in the lives of all Americans.

Modern constitutional lawyers do work that is no less significant. In 2015, the Supreme Court case Obergefell v. Hodges legalizes same-sex marriage in all 50 states. It also requires states to recognize same-sex marriages that are performed in other states.

Another recent, significant constitutional law case is the Burwell v. Hobby Lobby case. That case asks whether corporations have to provide insurance coverage for abortions for their employees. Hobby Lobby argues that the mandate to provide insurance covering abortions violates the religious liberties of the people who own and run the corporation. Ultimately, the court agreed and ruled that the legislature must use a less restrictive means to regulate employer-based insurance. The decision in the Hobby Lobby case impacts daily life for many Americans and made national headlines. The attorneys who presented the case worked on an issue with national significance.

Constitutional lawyers have the potential to change society. While lawmakers and the attorneys who assist them also have significant power in that they create laws, whether those laws are invalidated or upheld depends on the courts. The success of a case depends on the oral and written work of constitutional lawyers.

If you enjoy grappling with philosophy and political issues, constitutional law might be for you. Rather than arguing a case in court once each day or week, constitutional lawyers might practice for months just for one court appearance. The success of a case might hang on being able to answer one question correctly or being able to point the court to a little-known case. Constitutional law is for lawyers who enjoy pouring over minute details.

Constitutional law is often exciting. You may even become a federal court judge or a Justice of the Supreme Court. Whether you practice in the Supreme Court or you spend hours drafting the perfect brief, many influential people and legal experts throughout the world might review your work and use it to make decisions of critical importance throughout society.

Seeing the big picture

Constitutional law is the law that governs the very framework of society. It aims to answer the questions of what laws and freedoms apply to all individuals and how those freedoms should be applied. Constitutional law and those who practice it have a profound impact on society.