The United States Constitution and Bill of Rights
by John Bandler
The U.S. Constitution is the highest law in the United States. It establishes our system of government with three branches and a system of checks and balances. It also limits the power of government and guarantees certain rights to the people.
The U.S. Constitution became effective in 1789, and has been amended many times, starting with the Bill of Rights. As our highest law all laws and actions within the country must comply with it. If a judge finds that a law violates the U.S. Constitution, the judge could declare the law unconstitutional, and render the law void.
Every state in our country also has their own constitution. For this article, you know that "Constitution" means the "U.S. Constitution".
We the People
Our Constitution starts with "We the People". The first paragraph reads:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Articles within the Constitution
Then there are a number of Articles within the Constitution.
- Article I establishes the Legislative branch. It provides for a bicameral Congress, with the U.S. House of Representatives and U.S. Senate, and lays out the powers of Congress. (Bicameral means "two chambers").
- Article II establishes the Executive branch. E.g., the President, powers of the president, etc.
- Article III establishes the Judicial branch. This includes the U.S. Supreme Court and other federal courts.
- Other Articles.
These three branches are co-equal and provide for checks and balances. We did not want our executive branch becoming all powerful (like a monarchy), and each branch can temper the others.
A limited U.S. government?
The Constitution (in theory) provides for a "limited" federal government. It specifically provides ("enumerates") certain powers to the federal government, and if powers are not specifically given to the federal government, it doesn't have those powers, and they are reserved for the states, or for individuals. Thus the federal government does not have a general "police power" (general blanket authority) whereas states do. In practice, the federal government has enormous powers. It can tax and spend, regulate interstate commerce (an expansive power), and more.
A republic, if you can keep it
Our Constitution is the oldest written national constitution still used. Our system of government, with peaceful transfer of powers between administrations, has lasted over 225 years.
I used to take this for granted. The events of January 6, 2021 changed that. The peaceful transfer of power was threatened when a mob attacked the U.S. Capital (Legislative branch) to try stop this peaceful transfer of power from occurring. I will not forget this, and now realize our system of government is more fragile than I thought. The events of 1/6/2021 did not happen in isolation nor spontaneously, there was prior planning by many.
The Constitution can be amended, though that is a long and difficult process. There are now twenty seven amendments, and the first ten are the Bill of Rights. Here's a quick list of some of them with a summary.
- Bill of Rights – Amendments 1-10
- 1st Amendment: Freedom of speech, religion, assembly, press
- 4th Amendment: Freedom from unreasonable search and seizure
- 5th Amendment: Grand jury, double jeopardy, due process, right to remain silent
- 6th Amendment: fair speedy public trial by impartial jury, right to attorney
- 13th Amendment: Abolish slavery
- 14th Amendment: U.S. citizenship for former slaves. States cannot violate citizen rights, must provide due process and equal protection.
- 15th Amendment: To ensure voting rights for former slaves
- 19th Amendment: To ensure voting rights for women.
I have skipped many amendments for brevity, to see all the amendments, visit the links at bottom to the National Archives or Cornell law site.
Fixed document or evolving interpretations?
- Is the Constitution a living, evolving body of law, that judges can interpret in accordance with the times?
- Or is it fixed words, that we need to read only in the context of the founding fathers' original intent?
As a younger person I heard a Supreme Court Justice proclaim the importance of Constitutional "originalism" and "textualism" and his words were to the effect of:
"If people want to change the Constitution, they should amend it. Judges shouldn't change it. Judges should go by the letter of the Constitution and the founder's intent."
Once this convinced me, but no more.
The law evolves. Interpretation of the Constitution evolves too. This evolution cannot be without bound, it needs to be tempered, and judges should not stretch the Constitution to arrive at their desired outcome. But neither can we pretend it is still 1789. And originalism can sometimes be a fickle thing. Some lawyers (and judges) embrace it when it suits them, but seem to discard it if not.
Clearly, interpretation of the U.S. Constitution has progressed over the years, even as certain text remained unchanged. The Fourth Amendment is proof (I'll get to that soon). Roe v. Wade is also proof, as we cover next.
Who gets to say what the U.S. Constitution means?
People (and lawyers especially) debate about what written laws really mean, and how laws should be applied. It is ultimately Judges who decide what the law is. Judges are never perfect so we have a system of appeals, and the highest court in the country is the United States Supreme Court (USSC or U.S. Supreme Court). Thus, it is the U.S. Supreme Court which has the ultimate legal authority to decide what the U.S. Constitution means.
We would like our legal system to be free of political influence regarding individual cases, and we would like every judge to be fair and impartial, judging a case and the law based on the facts and the law -- not personal beliefs or opinions. The legal doctrine of precedence provides some stability, in that prior decisions on law have great weight for pending decisions.
But we also need to be realistic. Judges are humans, and humans are imperfect. And politics works to influence the legal system and also the U.S. Supreme Court. While the USSC decides the supreme law of the land, there is room to question whether their decisions are purely about law, or whether they include political or personal judgments.
Consider the case of Roe v. Wade in 1973 and now Dobbs v. Jackson Women's Health Organization in 2022. Put simply, In 1973 in Roe v. Wade the USSC decided the Constitution gave women certain privacy rights that gave protections for the ability to obtain an abortion. This held for almost 50 years until in 2022 in Dobbs the USSC overruled Roe and decided the Constitution did not provide this protection. By overruling Roe v. Wade the USSC declined to follow the legal doctrine of precedence.
People have strong opinions about which decision is right. But the takeaway for everyone is legal interpretation of the Constitution by the USSC is subject to change over time. Often with mild evolutions, and now we see that rapid reversals can occur.
The U.S. Constitution is about peaceful decisions about our country
Some people have twisted the meaning of the Constitution in an attempt to justify crime and violence, including violence against the government. Some claim the Constitution supports illegal efforts to interrupt the peaceful transfer of power or counting of votes. This perversion violates the Constitution and severely misreads it. The Constitution establishes a system of government and a nation of laws and democracy, with methods to peacefully and lawfully resolve differences about government and the future of our country. Violence and intimidation are forces of tyranny, autocracy, and anarchy, and cannot be justified under the Constitution.
The First Amendment
The First Amendment protects us from government restrictions on speech, religion and more. It reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This can be a really complex area, but here are some points I think are essential to grasp:
- The 1st Amendment protects against government interference with speech
- It does not protect against private interference with speech
- There is an enormous body of case law (legal precedent) that interprets what the First Amendment means
- Free speech protections do not mean anything can be said without any consequences at all
- Any speech could have private consequences (the 4th Amendment is simply about consequences from government)
- Think of these three areas of government consequence (or not) regarding speech:
- Some speech may be absolutely protected from any government consequence
- Some speech may be properly subject to civil lawsuit (a civil lawsuit uses government courts)
- Some speech may be properly subject to criminal prosecution (a criminal prosecution represents a substantial use use of government power).
After January 6, 2021, some private entities (social media, publishers, etc.) decided they did not want to promote the speech of certain people on their platform. Twitter accounts were suspended, book deals were cancelled. Some of these people complained that their First Amendment rights were being violated, but they were wrong and I explain that here.
The Fourth Amendment
The Fourth Amendment protects us from unreasonable search and seizure by the government. It reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This is another complex area of law, so here are some main points:
- The Fourth Amendment protects against unreasonable searches and seizures by the government
- It does not protect against private searches and seizures (other laws may though)
- From this 4th Amendment there is an enormous body of caselaw that has evolved
- Important Fourth Amendment principles include:
- The search warrant "requirement”
- Exceptions to the search warrant requirement
- Exclusionary rule
- Is there a reasonable expectation of privacy from government (which is different from civil privacy laws)
Let's detour back to the discussion on evolution or originalism. Within the Fourth Amendment case law is proof that Constitutional law has always evolved, even when the text has remained unchanged:
- The text of the Fourth Amendment has never changed since 1791, but the law of it has changed markedly.
- The Fourth Amendment was initially toothless, and with no consequence when government violated it.
- In 1914 the U.S. Supreme Court interpreted it to create a consequence, the exclusionary rule (Weeks v. United States, 232 U.S. 383 (1914)).
- U.S. Supreme Court rulings over the years have further expanded and clarified the protections of the Fourth Amendment, keeping it up to date, including about private searches, eavesdropping on the [wired] telephone, police stop and frisk (still legal when properly done), electronic data, smart phones, location tracking, and more. Lower court decisions also help evolve the law.
- In sum, judicial interpretation of the Constitution evolves, and always has.
This is a bigger diversion on the originalist's perspective, but imagine this hypothetical (or as scientists say, a thought experiment, or "gedanken"). The originalist has created a time machine and travelled back over 200 years, and is speaking to the founding fathers, trying to figure out their original intent. Perhaps they are in a dark and noisy pub, talking government and drinking some pints. The originalist is trying to figure out their intent, and how the Fourth Amendment should be applied today. He asks Washington, Franklin, Hamilton, Madison and others a host of questions relating to cell phones, cell site and GPS data, cloud data, and more. He gets only blank stares. He takes his time machine back to the present day, and if he's going to be honest, he decides not to be an originalist anymore.
The oath to the Constitution
Our country is a nation of law and process, not of individuals. Officials take oaths to the Constitution, not to an individual, not to a leader.
I was an Army officer, police officer, and assistant district attorney, and each time I started, I swore an oaths to uphold the U.S. Constitution (and sometimes the New York state constitution). Here is the federal oath:
I ________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
In contrast, dictators, authoritarian governments, monarchies, and cults require loyalty and devotion to an individual. Allegiance is sworn to the person, to the detriment of law, the country, and those in the country.
All of our elected officials have sworn oaths to support and defend the Constitution of the United States, to look out for the good of country and constituents.
Yet today, some elected officials do not live up to that oath. They look out for personal gain or profit. Or to serve their party, or party leader, at the expense of the country.
The U.S. Constitution and Bill of Rights are the country’s highest law. The Constitution establishes our government and how it operates, with three branches and a system of checks and balances.
This short article is for your information and learning, and of course is not tailored to your circumstances, nor is it legal or consulting advice. I don't pretend to be a Constitutional scholar, so if you want to suggest an improvement, drop me a line. Of course, you will find my opinion in here too, but that keeps it interesting.
Additional reading on law
- See my ten minute video on YouTube, embedded below, or click this link.
- Introduction to law (outline)
- Intellectual property law
- Free Speech, the First Amendment, and Social Media
- Building better consumers and voters
- Cybercrime Investigations, Chapter 5, Fundamental Principles of Criminal and Civil Law
- Cybersecurity Laws and Regulations Part 1 (general legal overview)
- About the CIPP/US Certification and How to Study for It (a privacy certification that requires considerable knowledge of law)
- Students, Learning, and Teaching
External sites to visit regarding the Constitution
- The National Archives
- Cornell Legal Information Institute (LII) https://www.law.cornell.edu/constitution/index.html
This article is hosted at https://johnbandler.com/us-constitution. Copyright John Bandler, all rights reserved.
A version of this article is available on Medium.com, at https://johnbandler.medium.com/the-united-states-constitution-and-bill-of-rights-20599bbe07d8 (though not updated as frequently and without the additional reading).
Originally Posted 2/15/2022. Updated 10/2/2022.