Constitutional Law Articles

Article / Updated 07-01-2022

The justices on the Supreme Court interpret the Constitution, which affects everyone in this country. As you study constitutional law, knowing the justices and their interpretive styles helps you make sense of big decisions and predict future outcomes. Chief Justice: John G. Roberts: Born 1955, seated on the Supreme Court 2005 (appointed by President George W. Bush) Associate Justices: Clarence Thomas: Born 1948, seated on the Supreme Court 1991 (appointed by President George H. W. Bush) Samuel Anthony Alito, Jr.: Born 1950, seated on the Supreme Court 2006 (appointed by President George W. Bush) Sonia Sotomayor: Born 1954, seated on the Supreme Court 2009 (appointed by President Barack Obama) Elena Kagan: Born 1960, seated on the Supreme Court 2010 (appointed by President Barack Obama) Neil M. Gorsuch: Born 1967, seated on the Supreme Court 2017 (appointed by President Donald Trump) Brett M. Kavanaugh: Born 1965, seated on the Supreme Court 2018 (appointed by President Donald Trump) Amy Coney Barrett: Born 1972, seated on the Supreme Court 2020 (appointed by President Donald Trump) Ketanji Brown Jackson: Born 1970, seated on the Supreme Court 2022 (appointed by President Joe Biden)

Cheat Sheet / Updated 04-18-2022

The Constitution (and constitutional law) affords people many rights, establishes the United States government, and defines and limits the government’s powers. The nine U.S. Supreme Court Justices are the ultimate interpreters of the Constitution. Finding out about the Supreme Court and the decisions it has made in constitutional cases over the years helps you understand the United States a little bit better.

Article / Updated 03-19-2021

The 25th Amendment to the US Constitution, ratified in 1967, made some arrangements about the presidency and vice presidency. Most of the 25th Amendment addresses points like who replaces the US president if he dies while in office or resigns, how to fill a vacancy in the vice presidency, and how a president can temporarily transfer powers to the vice president in the event he cannot discharge his duties. One of the most talked about provisions of the 25th Amendment is the fourth section, which establishes how a US president can be removed from office if it is believed he is unfit to govern. Section 4 of the 25th Amendment, which has never been used, deals with the tricky situation when the vice president and Cabinet decide that the president is “unable to discharge the powers and duties of his office.” Some believe this provision is potentially dangerous, as it could be used as a political weapon against a US president who is disliked by his vice president and a majority of his Cabinet. The 25th Amendment stipulates that to remove a US president from office, the vice president and a majority of the president’s Cabinet or the vice president and a similar group designated by Congress must tell the leaders of the Senate and House of Representatives that the president is unable to carry out his responsibilities to the nation. On delivery of this notice, the vice president immediately becomes acting US president. Of course, the president can dispute this assessment and send a written message to the Senate and House leaders stating that he is able to do his job. Thus begins a political game of “he said, she said.” One reason this section of the amendment is confusing is because it doesn’t clearly define the role of Congress in initiating the 25th Amendment. The actual text of the 25th Amendment states the vice president can initiate proceedings with “a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide.” To date, Congress has not passed a law designating a body that would work with the vice president in starting 25th Amendment proceedings. The most recent attempt to clarify this portion of the amendment came in October 2020 when Rep. Jamie Raskin (D-MD) introduced a bill that would establish a “Commission on Presidential Capacity to Discharge the Powers and Duties of the Office” to fill this duty. Raskin introduced similar legislation in 2017 as well during the presidency of Donald Trump. If the vice president and the Cabinet or Congress members disagree with the US president about his capabilities, they have four days to inform the president pro tempore of the Senate and the speaker of the House that they want the president removed. At that point, the issue moves to the House and Senate. Lawmakers have 21 days to decide whether the president is capable of performing his duties. It requires a two-thirds majority vote of both houses of Congress — 288 members of the House of Representatives and 67 members of the Senate — to permanently remove a president from office using the 25th Amendment. If two-thirds of lawmakers vote in favor of the vice president, the president is removed from office, and the vice president becomes the acting president. If fewer than two-thirds of representatives and senators agree with the vice president and Cabinet or congressional body, the president can resume his duties, presumably with a big focus on firing members of his Cabinet and asking for the vice president’s resignation. The 25th Amendment of the US Constitution (Ratified February 10, 1967) Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section 2. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. Check here to learn more about the 25th Amendment.

Article / Updated 03-26-2016

The Constitution is chock-full of guarantees of individual rights and rules about what the government can and can’t do. Some provisions affect people’s lives more than others, but they are all important in their own right. Here are just some of the important, often-discussed provisions and where you can find them in the Constitution: Freedom of speech, press, and religion: First Amendment Right to bear arms: Second Amendment Right to be free from unreasonable searches and seizures: Fourth Amendment Right against self-incrimination and double jeopardy: Fifth Amendment Due process: Fifth and Fourteenth Amendments Right against taking without just compensation: Fifth Amendment Right to a speedy and public trial: Sixth Amendment Right to counsel: Sixth Amendment (also read into the Fifth-Amendment right against self-incrimination) Prohibition against cruel and unusual punishment: Eighth Amendment Slavery abolishment: Thirteenth Amendment Equal protection: Fourteenth Amendment Women’s right to vote: Nineteenth Amendment Commerce clause: Article I, Section 8 “Necessary and proper” clause: Article I, Section 8 Contracts clause: Article I, Section 10 Full faith and credit: Article IV, Section 1

Article / Updated 03-26-2016

Substantive due process involves whether the government has a legitimate basis for taking away a person’s right to life, liberty, or property. The basic question is, “Wait — does the government have a right to do this at all?” In substantive due-process cases, the courts use a baseline rationality test that considers: (1) Is the government’s interest legitimate? and (2) Is the government’s action a means to a legitimate end?

Article / Updated 03-26-2016

Procedural due process involves the way the government goes about infringing on Americans’ rights. Procedural due-process cases assume that the government is constitutionally allowed to take away a right. (Substantive due process questions whether the government has that right in the first place.) In these cases, the courts consider two questions that determine constitutionality: (1) Was adequate notice given? and (2) Did the person have an opportunity to be heard? A two-part analysis determines whether the government has afforded adequate procedural due process under the Constitution: Is any process due? That is, have the people making the challenge established that they were even deprived of a legitimate property or liberty? If process is due, how much? This balancing test weighs how important the person’s right is and how important the government’s interest is, as well as what the risk is of depriving someone wrongfully with the present procedures as opposed to having additional or different procedures.