• Constitutional Law
  • Civil Rights
  • Right to Due Process
  • Equal Protection
    • Strict Scrutiny
    • Intermediate Scrutiny
    • Rational Basis Scrutiny
  • Freedom of Speech
  • Freedom of Religion
  • Right to Privacy
  • Other Constitutional Rights

Federal constitutional law is a broad and complex area of legal specialization. The law includes the actual text of the original United States Constitution, subsequent amendments, and numerous cases that interpret the Constitution and the amendments. In constitutional law, more than in any other area of law, there is a great deal of interpretation of the original documents. The United States Constitution establishes the fundamentals of our system of government: three federal branches, each with their particular powers, a federal government sharing power with the state governments, and basic rights granted to each citizen.

Each of the 50 states, including Texas, has its own constitution that spells out the organization of the state and local governments and the rights of state citizens. But because the United States Constitution is the "supreme law of the land," each state's constitution must grant the citizens of the state at least the same rights as the federal Constitution.

While the relationship among the three federal branches and between the federal government and the states is interesting and important, most people find constitutional rights to be the most relevant aspect of constitutional law. Thus, the purpose of this chapter is to provide an overview of some of our most important constitutional rights. Some areas of law that are affected by constitutional analysis--such as employment law, elder law, and criminal law--are discussed in separate chapters in this Guide.

The first ten amendments to the Constitution, commonly known as the "Bill of Rights," are the most direct source of constitutional rights. Consequently, much of what we call civil rights law is constitutional law, although in some areas, civil rights are based on statutes rather than the Constitution. Civil rights include the right to free speech, the right to practice religion freely, the right to be free from discrimination, and the right to privacy.

One of the most important concepts in constitutional law is that the rights granted in the Constitution are not absolute. Many rights have limits placed upon them. The rights granted in the Constitution must be exercised responsibly or else they conflict with other rights. Constitutional law defines the limits of powers granted in the Constitution and balances the rights of individuals whose rights are in conflict.

The Fourteenth Amendment to the United States Constitution says that no state is allowed to deprive a person of life, liberty, or property without due process of law. The Fifth Amendment has similar wording, but it applies to the federal government. The Fourteenth and Fifteenth Amendments limit what governments may do; they do not reach the actions of private parties. Thus, in order to protest an action under these amendments, a plaintiff must show that the action is state action.

The right to due process is actually two separate guarantees: procedural due process and substantive due process. Procedural due process means that the government will not deprive a person of life, liberty, or property without first giving the person legal process. Legal process means some kind of legal notice or opportunity for a hearing. For example, the government must hold an evidentiary hearing before terminating welfare benefits. Similarly, procedural due process requires a public school to give a student an opportunity to explain before he or she is expelled.

Substantive due process is the right to be free from arbitrary or unreasonable government actions, including unreasonable laws. In some cases--such as when a law infringes upon a citizen's First Amendment rights, or classifies people according to race or gender--the Supreme Court requires the government to have an extremely important or "compelling" reason for the law. The Court will "strictly scrutinize" the government's reasons and, in all likelihood, will strike the law down. In other cases, such as when the government enacts taxation or zoning laws, the personal rights involved are not as fundamental, and the Court will uphold the law as long as the government's motives are not arbitrary or irrational.

Equal protection means simply that laws are supposed to protect people equally. Perhaps more than any other language in the Constitution, the "equal protection clause" of the Fourteenth Amendment has been used to strike down institutionalized inequality in the United States. In 1954, the Supreme Court used the equal protection clause in the case of Brown v. Board of Education, declaring that having "separate but equal" school facilities for black and white students was inherently unequal and therefore unconstitutional.

Laws cannot always treat people equally, though. Government programs to benefit the poor, for example, obviously treat the poor differently from the wealthy, or they have no effect. The government often needs to classify people in order for laws to be effective. The question courts face, therefore, is whether it is permissible for the government to treat people unequally in a particular case.

In answering this question, the Supreme Court has looked at how the law classifies people or which rights are at stake to determine whether a law is constitutional. Depending on the classification of the right, courts apply one of three different standards. Each of these standards examines the goal of the law and the method used to reach the goal.

Strict Scrutiny

Some governmental laws or classifications are subject to strict scrutiny. Strict scrutiny is the highest standard a court applies in deciding whether a government classification violates a person's right to equal protection. To withstand strict scrutiny, the law must be necessary to achieve a compelling government interest. The classification of people under the law must be so carefully tailored as to be absolutely necessary, and there must be no other way of achieving the goal of the law. Courts applying this standard rarely uphold the challenged classification.

"Suspect classifications" are categories that are inherently suspect, such as race and national origin. Any law that classifies people according to race is suspect and will be strictly scrutinized to make sure there is a compelling reason for the classification. For example, an 1873 West Virginia law that permitted only white males to be jurors was ruled unconstitutional because it was based on race and had a discriminatory intent. Under this highest level of scrutiny, courts almost always strike down the law.

There is no fixed list of suspect classifications, but the Supreme Court typically treats as suspect any classification of people who:

• Have a trait that cannot be changed

• Have a trait that is highly visible

• Historically have been disadvantaged

• Historically have lacked effective political representation

For example, suppose the state of Texas created a law that required Mexican-Americans to pay more for driver's licenses than non-Mexican-Americans. The state might claim it passed the law simply to raise more money, but a court reviewing the law under strict scrutiny would strike it down. The goal of raising money might be a compelling interest, but a classification based on race or national origin is not necessary to raise revenue. The state has other ways it can raise money, such as by increasing the cost of driver's licenses for everyone.

Limitations on fundamental rights also are strictly scrutinized. Fundamental interests include most voting rights, marriage, and procreation. For example, suppose a state decided to reduce the amount of money spent on public education by refusing to enroll children in families with more than two children. A court reviewing this law would strike it down. Limiting public spending might be a compelling government interest, but discouraging people from having children is not necessary to achieve that goal. There are other ways to limit spending that do not infringe on the fundamental right to procreate.

Intermediate Scrutiny

Courts applying the intermediate level of scrutiny overturn a government classification unless it is substantially related to an important government interest.

Classifications such as gender, distinctions between legitimate and illegitimate children, and racial classifications intended to benefit a disadvantaged racial group are considered "semi-suspect classifications" and are analyzed by courts under this intermediate level of scrutiny. For example, suppose a state decides to create an affirmative action program for Asian-American firefighters because it had discriminated against Asian-American firefighters in the past. A court reviewing this classification would apply intermediate scrutiny and ask whether the program is substantially related to the important government interest in remedying its past discrimination. The court's decision would turn on how well the state tailored the program to meet this goal and whether it implemented its provisions fairly.

Rational Basis Scrutiny

Rational basis scrutiny is the lowest level of scrutiny courts apply. Applying this test, courts decide a government classification is acceptable if it is rationally related to a legitimate government interest. The government's reason for the law must be legitimate and there must be a rational connection between the classification and the goal. Laws that classify people on the basis of economics typically are scrutinized under rational basis scrutiny. For example, if a state offers public assistance to people whose income is below the poverty line, but not to people with higher incomes, the law will be subject to this analysis. Because this standard is so low, courts applying this standard almost never overturn the government's classification.

The First Amendment of the Constitution states that Congress may make no law abridging the freedom of speech. Freedom of speech protects the free flow of ideas, an important function in a democratic society. Under this Amendment, the government may restrict speech only through reasonable regulations that are not aimed at suppressing specific ideas. For example, it is constitutional for the government to prohibit demonstrations in a hospital zone out of concern for patient safety, or to restrict billboard advertising that is so distracting as to cause accidents. But the government may not restrict certain types of demonstrations or advertisements simply because it disagrees with the content of what is said or communicated.

Some speech, however, is prohibited because of its content. Speech that incites people to violence is prohibited, as is obscene speech, false advertising, and speech that defames someone's reputation. Because of its harmful nature, speech of this sort is not protected by the First Amendment.

Although the law is clear that people do not have complete freedom of speech when it comes to obscene materials, obscenity is a controversial area of constitutional law because the definition of obscenity is unclear. The Supreme Court created a three-part test to determine whether a particular communication is obscene: (1) applying contemporary community standards and taking the work as a whole, the work appeals to the prurient interest in sex; (2) sexual conduct is depicted in a way that is patently offensive; and (3) the work, taken as a whole, lacks serious value. Obviously, this definition permits different results in different locations and at different times, because it uses contemporary community standards. An item might be considered obscene in El Paso but acceptable in Austin. An item might have been considered obscene a decade ago, but might be considered serious, valuable art today. If material is not obscene, then it is legally protected free speech.

Commercial speech is speech that advertises a product or service for profit or for a business purpose. Commercial speech is entitled to less protection than non-commercial speech. Specifically, misleading commercial speech or commercial speech that proposes unlawful actions has no protection under the law.

The First Amendment also guarantees the freedom of religion. Many people have the mistaken belief that the federal Constitution requires a wall of separation between church and state, and are surprised to learn that the Constitution does not mandate a complete separation between church and state. Clergy may hold public office, religious colleges may receive public grants, and the government may require a church to install smoke detectors or other safety equipment.

The Constitution's guarantee of religious freedom has two aspects. The "Establishment clause" forbids the federal government from establishing a state church. The "Free exercise clause" grants individuals the right to exercise religion freely. Like the other rights discussed in this chapter, these rights are not absolute.

The establishment clause, which forbids the establishment of a state church, has modern application in cases in which the government gives assistance to a religiously affiliated institution, such as a Christian grade school. Courts ask three questions to determine whether the government support violates the establishment clause:

• Does the aid have a secular (non-religious) purpose?

• Does the aid have a primarily secular effect?

• Does the aid require excessive government entanglement in the affairs of the religious body?

Using this test, courts have upheld programs that have only an incidental benefit to religious schools, such as free busing, but have struck down programs that directly benefit the schools, such as paying the salaries of private school teachers. Other examples of government action that violates the establishment clause include mandating school prayer, posting the ten commandments in the classroom, and prohibiting the teaching of evolution without also teaching creationism.

The free exercise clause precludes government from punishing someone based on religious beliefs. For example, Amish people are constitutionally permitted to educate their children at home because secondary education is contrary to their religion. To decide whether there has been an infringement of the right to freely exercise one's religion, courts use another three-part balancing test that considers the weight of the government interest, the degree of interference, and the availability of alternate means to achieve the goal.

Cases decided in this area have produced a few general principles. First, a strong government interest may completely override a religious belief. For example, a strong government interest in encouraging monogamy was enough to allow the government to forbid polygamy in the 19th century, even though some Mormons believed in polygamy as part of their religion. Second, free exercise claims are stronger when they involve one's own actions than when they involve one's children. For example, freedom of religion allows adults to refuse medical treatment, but a state may intervene on behalf of children and force parents to seek medical treatment for their children, even if medical treatment violates the parents' religious beliefs.

Although it is not specifically mentioned in the Constitution, the Supreme Court has established that each citizen has a fundamental right to privacy. Any law limiting this right is strictly scrutinized, as noted above. The right to privacy includes the freedom to marry, to use contraceptives, to educate children at home, and to have an abortion.

Decisions affecting the right of privacy are controversial and recent cases have cast doubt on how future courts will analyze challenges to these rights, but some general points stand out. Laws that forbid the exercise of a fundamental right almost always are struck down as a violation of substantive due process. For example, a law making all abortions illegal would be struck down. On the other hand, laws that make it more difficult to exercise a right, without making it impossible, usually are upheld. For example, a government putting a tax on contraceptives may make it more difficult for some people to exercise the right to contraception, but such a tax still is permissible.

The Constitution contains a number of other rights, many of which apply to people accused of crimes. People have the right to freedom from unreasonable search and seizure, the right to freedom from self-incrimination, the right to a speedy trial, the right to a jury trial, the right to confront witnesses, the right to freedom from double jeopardy, and the right to freedom from cruel and unusual punishment.

Another fundamental right is the right to vote. The right to vote can be restricted only if the government shows a compelling reason for doing so. Usually, courts strictly scrutinize the government's justification for limiting this right and strike down laws that do so. For example, the Supreme Court struck down laws requiring property ownership to vote.

Courts have decided that the right to refuse medical treatment for oneself is a fundamental right. For example, many states--including Texas--have passed legislation governing natural deaths and do-not-resuscitate requests, which limit the amount of medical treatment a person wishes to have if he or she becomes terminally ill. Finally, the Constitution guarantees the right to travel, as well as a limited right for private citizens to bear arms.