The United States Constitution – A Primer

Don’t be intimidated when you read about a case that involves constitutional law. Yes, constitutional law can be very complex, but the basic principles aren’t.

Cases involving the United States Constitution and books written about them can take up half a library. This article is intended to be a brief primer for the layperson to understand the basic concepts about constitutional law that we read about in the newspapers every day.

Here are some basic things that any citizen should know about the Constitution:

· The United States Constitution is the basis for our entire system of law. It adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania and was ratified the following year.

· The original unamended Constitution is only 4,345 words in length. It is theoldest and shortest written constitution of any major government in the world.

Judicial Review – A Basic Doctrine

The case of Marbury v. Madison established the principle of judicial review; that is, the principle that courts can determine whether a law is constitutional. The Supreme Court of the United States Supreme Court has the final say. The case involved a simple matter. Marbury was appointed to the office of Justice of the Peace by President John Adams, but his actual written commission was not delivered. He petitioned the Supreme Court to order Madison, the Secretary of State, to deliver the document, pursuant to the Judiciary Act of 1789. The court refused, holding that the act was unconstitutional because it gave the Supreme Court jurisdiction that was not provided for in the Constitution. This was the first time that the Supreme Court held a congressional act unconstitutional, and gave birth to the doctrine of judicial review.

· When judges are faced with a constitutional question, they are bound byprecedent, also known as stare decisis , which means simply that settled matters should not be disturbed. Courts make their decisions based on prior decisions, and they can vary from those decisions only if they can find a distinction between those earlier cases and the case before the court. The only other way the Supreme Court can go against prior decision is to reverse that earlier ruling. This was done in the case of Brown vs. Board of Education (1954), the school desegregation case. The Supreme Court reversed its ruling in Plessy v. Ferguson (1896) finding that the Plessy court’s holding of “separate but equal” violated the Equal Protection clause of the Fourteenth Amendment.



James Madison – Father of the Bill of Rights

The First Ten Amendments – The Bill of Rights

The first ten amendments to the Constitution are also known as theBill of Rights. The bill of rights was passed by Congress September 25, 1789 and was ratified December 15, 1791.

The Second Amendment. Pick up a newspaper and chances are that you will see the Second Amendment referred to in an article on the first page. The amendment provides “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Does it only involve militias? Is the right to bear arms absolute? The debate goes on.

· The Fourteenth Amendment guaranteed that the rights contained in the Constitution applied to the states as well as to the federal government. The Equal Protection Clause of the Fourteenth Amendment states: “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”

The Due Process Clause of the Fifth and Fourteenth Amendments are basically identical. The Fifth Amendment states: “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” A cop can’t just grab you by the scruff of the neck and throw you in jail. He must read you your rights and advise you that you have the right to talk to an attorney. You will then be arraigned before a judge who will read the charge against you and ask how you wish to plead. This stuff is what due process is all about.·

Enumerated Powers – The Federal System

The power of the federal government is not unlimited. The framers granted to the federal government specific enumerated powers in Article 1, Section 8. The framers basically said “Okay Fed, here’s what you can do,” and in the Tenth Amendment they gave further emphasis to the federal system: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Interstate Commerce Clause has become one of the most important clauses in the Constitution, and one of the most controversial (Article 1, Section 8, Clause 3). This clause granted to congress, among other things, the right to “regulate Commerce…among the several states.” This clause has been used to expand the power of the federal government. In its decision on the Affordable Health Care Law on June 28,2012, the Supreme Court held that the individual mandate that forced people to purchase health insurance was unconstitutional under the commerce clause. However, the Court, with Chief Justice John Roberts as the swing vote, found that the law was constitutional under the first clause of the enumerated powers, “the power to lay and collect taxes.” (Article 1, Section 8, Clause 1). This decision is controversial to say the least. Books, treatises and law review articles about this case will stretch years into the future, so no thorough analysis will be presented here. The most important thing to recognize, for the purpose of this article, is that the commerce clause has been restrained, and it does not mean that congress can do whatever it wants. Some will disagree with that last sentence.

Books on the Constitution

The Basic Test of Constitutionality

If a case is about a fundamental constitutional right and it involves a“suspect classification” such as race or national origin, the court will apply the test of “strict scrutiny.”This means that the law will be upheld only if it there was a “compelling state interest.” If a case does not involve a suspect classification leading to strict scrutiny, the court will question only whether the legislature had a mere“rational basis” for writing the law.

This article only covers a few of the basics. We should all be familiar with the United States Constitution and how it affects us. A number of organizations have published booklets that contain the Constitution as well as the Declaration of Independence. Some of them are: the Cato Institute, the Heritage Foundation, Hillsdale College and young America’s Foundation. The booklets fit right in your pocket or purse. It’s a good thing to carry around. A useful website that is great for Constitutional trivia buffs is

Russ Moran, the writer of this article, is also the author of the book Justice in America: How it Works – How it Fails.

Copyright © 2013 by Russell F. Moran

About Russ

Russ Moran is an author, lawyer, and blogger. He writes on a wide variety of topics, including recreational themes such as boating, how-to articles, law and business. He is the author of Justice in America: How it Works - How it Fails, published in 2011. Kirkus Reviews calls the book: "A lively,brash,illuminating insider look at the law,by a compelling expert." Russ has recently finished The APT Principle: The Business Plan that you Carry in Your Head, It was published in June 2012. His blog is The Moran Report at Russ lives on Long Island with his wife Lynda. They have a five year old shih tzu that they are still trying to house train.
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