A Primer on Constitutional Law
Constitutional law, the fundamental body of law in a nation-state, establishes the core principles through which that nation uses to regard its citizens and other nations. The Constitution provides the basic structure of a government’s guiding principles and sets forth the essence of the law of the land.
The overarching purpose of constitutional law is to set forth the relationships between the different parts of a government – from the executive level to the legislative to the judiciary – and to explain how all three coordinate and cooperate in order to run a functional system.
In addition to outlining how the various branches of government are supposed to operate, constitutional law also sets forth protections for the citizenry. It delineates their legal rights and the limitations of a government’s power. It also sets out recourse for citizens when those rights are infringed.
Constitutional law is primarily written – either in a single document or multiple documents. It may also include unwritten laws, such as precedents and conventions of a nation. In the U.S. , so much of the law in the Constitution is codified at the federal and state levels that it is often thought of in terms of the Constitution itself as opposed to more nuanced treaties and interpretations of the Constitution.
Most constitutions contain a bill of rights – which, as the name of the section indicates, enumerates outlined citizens’ rights. In the U.S. Constitution, this is in the form of the Bill of Rights, which was an attachment onto the Constitution. Citizens’ rights also include who qualifies for citizenship, how naturalization works and what the restrictions of citizenship are.
The extent to which some aspects of constitutional law are absolute varies. Some are more subject to interpretation than others. Meanwhile, others are very specific and highly detailed with little room for interpretation.
For instance, judicial interpretation is one of the main tools utilized by constitutional officers. Judicial interpretation is one of the methods in which principles are given practical effect. Courts use judicial interpretation to grasp the meaning of a particular principle or clause.
The Influence of Politics on Constitutional Law
Political ideologies and movements play a crucial role in shaping constitutional amendments and interpretations. Throughout history, political leadership has influenced the direction of constitutional law. For example, the Progressive Era of the early 20th century brought significant changes to the Constitution, characterized by the expansion of federal power and new federal protections for individual rights. The 16th Amendment, which authorized a federal income tax, was passed during this era. Notably, the 18th Amendment, which prohibited the manufacture, sale, and transportation of alcohol, was also passed. The temperance movement gained increased support during this time, exemplifying how political movements grow in response to societal concerns.
Similarly, the New Deal Era of the 1930s led to another round of significant constitutional amendments, including the 20th, 21st, and 22nd Amendments. These amendments reflect the changing political landscape of the United States in response to the Great Depression and World War II. The 20th Amendment dealt with issues related to the terms of the President and the Congress, while the 21st Amendment repealed Prohibition. The 22nd Amendment limited presidential terms to two. These amendments demonstrate how major political events, such as economic downturns and wars, influenced the political climate and led to significant constitutional changes.
More recent examples include the post-World War II period, which saw significant social and political movements advocating for civil rights. The 24th Amendment, which prohibited poll taxes in federal elections, and the 26th Amendment, which lowered the voting age to 18, were passed in the wake of these civil rights movements. These changes underscore how certain political ideologies and movements have resulted in lasting constitutional amendments.
However, some amendments have faced obstacles to their ratification. The Equal Rights Amendment (ERA), passed in response to the women’s rights movement of the 1970s, is perhaps the best-known example of this. Although the amendment passed through both the House of Representatives and the Senate and was sent to the states for ratification, it ultimately fell three states short of the threshold needed for ratification. Although the ERA did not become law, its failure had lasting implications for the women’s rights movement in the United States.
Constitutional Law Cases with Political Ramifications
Landmark cases decided by the U.S. Supreme Court have often had significant implications not only for the law but also for politics and government policy. A few key cases include:
McCulloch v. Maryland, 17 U.S. 316 (1819). In this case, which established the principle of implied powers, the Supreme Court laid the foundation for Congress’s broadly interpreted power to regulate commerce, tax, and spend. The doctrine continued to evolve—and its role in addressing contemporary legal issues heatedly debated today is still the subject of debate.
Dred Scott v. Sandford, 60 U.S. 393 (1857). The Court’s infamous decision is widely viewed as having heightened tensions leading up to the Civil War.
Plessy v. Ferguson, 163 U.S. 537 (1896). The "separate but equal" doctrine articulated by the Court became the constitutional foundation for the legal codification of racial segregation in the United States.
Miranda v. Arizona, 384 U.S. 436 (1966). In a decision further extending the rights of the individual in the criminal justice system, the Supreme Court addressed the issue of forced self-incrimination, requiring police to inform suspects of their right to counsel before questioning can begin.
Warren Court cases tended to be activist in nature, with decisions that often had a strong political flavor or political ramifications. The so-called "liberal" Supreme Court of Chief Justice Earl Warren also tended to be more colorful in its opinion writing and decision making than the "conservative" era presided over by Chief Justice William Rehnquist.
Events such as the Korean War, the Cuban Missile Crisis, and the Vietnam War prompted landmark decisions by the Supreme Court that involved political themes—for example, the Court’s decisions regarding a president’s war powers and the political entitlements of service members and veterans.
Court decisions loosened the restrictions on wearing at least some forms of religious apparel in public settings; the Court also guaranteed broader entitlements for the unemployed, disabled, and elderly as a result of the expansion of political entitlements in the Social Security program.
Constitutional Law in Various Political Structures
Constitutional law operates differently depending on the political system of a nation. In democracies, the constitution acts as a supreme law, binding on all individuals and institutions and protecting the fundamental rights of citizens. Its primary function is to limit the powers of the government and to prevent abuse. However, in authoritarian regimes, constitutions may serve a different purpose. While some regimes adopt democratic structures on paper, the actual implementation may be far from the ideal democratic model.
In many authoritarian systems, the legitimacy of the regime is founded on a constitution. However, such a constitution is often "made" by a single person or a ruling elite, putting them above its authority. This demonstrates how constitutions can be manipulated by regimes to enable the consolidation of power and the oppression of dissent.
For instance, the Chinese Constitution, though democratic in design, is essentially undemocratic in practice. The Chinese government calls itself a democracy, but in reality, it is a dictatorship where the constitution is frequently set aside. When the constitution fails to protect the fundamental democratic norms , including the right to free speech, the right to assembly, and fair political competition, it essentially loses its value as a constitution.
Similarly, in the 2019 Israeli elections, Prime Minister Benjamin Netanyahu faced a judicial ruling that disqualified Israel’s first-ever Arab party from forming a government coalition. This move was purportedly taken to curb an "emerging dictatorship." Despite the ruling being in favor of constitutional democracy, it was still a tool for politics. However, it soon became apparent that the "anti-dictatorship" argument was simply a façade for Netanyahu’s own dictatorial tendencies. His coalition failed to form a week and a half later, only to find itself returning to power a month later when the court’s decision was overturned.
These examples illustrate the ways in which constitutions can be used or abused in different political contexts. While constitutions are essential for democracies, their role in authoritarian regimes is much more complex and often problematic. They may serve as a veneer of democracy while enabling dictatorial rule. Hence, the interplay of constitutional law and politics is an intricate and multifaceted relationship.
Constitutional Law and Political Controversies
Today, constitutional law and politics continue to be a contested terrain even though the Constitution now functions as a mythic baseline. Constitutional debates no longer fall under this narrow view of either judicially imposed originalism or political processes. The three key areas of current debate in this regard are: the proper role of judicial review as a political institution; constitutional amendments before the U.S. Supreme Court; and the competing criteria for allocating powers between the legislative and executive branches of government.
The application of principles of constitutional adjudication by the U.S. Supreme Court is primarily through the practice of judicial review, which is generally defined as the power to declare an action in breach of constitutional law. Judicial review can appropriately be described as a political rather than as a legal function. In its most expansive conception, judicial review amounts to a transfer of jurisdiction over other sovereigns as an allocation of the judicial power of the United States. As a matter of practice, the modern approach to judicial review interprets the jurisdiction of this power to include decisions on constitutionality as applied to legislation enacted by federal and state governments and executive and administrative action.
The impasse between the proposition that the Constitution should be strictly adhered to as originally intended and the counter proposition that it is to be broadly conceptualized as a dynamic instrument has spawned appellate litigation over the meaning of the Constitution as it responds to the reality of the judicial process. These disputes spawned a body of supporting scholarly criticism. Reflection on the relationship of theory and practice justifies rejecting both an anarchistic approach and a narrowly circumscribed one. A mediated process between practice and theory is required, one that views the Constitution as a balanced scheme of government, designed with attention to its underlying goals and values and to the constraints upon the exercise of central government functions at both the national and state levels, while retaining the capacity for a flexible interpretation so as to render it relevant to changing circumstances.
In the judicial process, the broader, more flexible view of the Constitution that permits its dynamic application is preferable than to that of strict adherence to rules of constitutional interpretation. That preference acknowledges that the Constitution was designed to accommodate the necessity of change so that it could adapt to shifting societal and political values. Adopting this view of the Constitution, through fair competition of the various theories of constitutional adjudication, will satisfy competing conditions of constitutional interpretation and application. Ultimately, this balance will ensure the Constitution remains relevant amidst contemporaneous periods of change.
The Evolution of Constitutional Law and Political Context
As the current political climate in many countries becomes increasingly polarized, the interplay of constitutional law and politics is being tested. Countries facing populist movements, nationalist agendas, and authoritarianism are finding that their constitutional frameworks often struggle to adapt to the challenge. With the electorate calling for change, it remains to be seen whether constitutional law will evolve to address this change or whether it will remain static in the face of a shifting political landscape.
One possibility is that constitutional law will adapt to reflect the demands of the people. As democracy continues to be tested globally, combating threats to civil liberties may require constitutional amendments that safeguard individual rights. An example of this is subjecting emergency laws to stricter review to ensure that such powers aren’t abused by government leaders. Additionally, citizens may demand greater participation in governance, leading to constitutional change that increases direct democracy or the implementation of additional checks and balances.
Conversely, the existing structure of constitutional law risks reverting to its more authoritarian roots should the right-wing populist movements continue to gain traction. Regimes may impose sweeping changes to laws, rendering the constitution merely a facade of democracy. Under stricter regimes , constitutions may become tools to ensure the consolidation of power rather than to serve as a check on the executive. Such a trend would require citizens to seek out alternative mechanisms of protection of their rights outside the constitutional system. This could lead to greater reliance on international human rights law and collaboration with global civil society to ensure that international standards are met both in law and in practice.
An additional area of need for reform are states that have long ignored the changing realities of gender equality and women’s rights. Constitutional guarantees relating to gender still need further clarification and stronger provisions to fully protect women’s rights. Some countries have taken a more progressive stance on gender reform; however, without comprehensive constitutional change, the backlash from the conservative political fringes of society may be harder to overcome.
The future of constitutional law will be dictated by the relationship between the rule of law and democratic accountability. Political actors who consistently interpret constitutional provisions to meet their narrow, political interests will weaken the relevancy of constitutional law, and potentially undermine democracy itself. Without a principled commitment to the rule of law, the tenets of constitutionalism will be difficult to uphold, and the struggle to find the right balance between constitutionalism and democratic accountability will become increasingly complex.