Section 1.2: Constitutional Limits on Criminal Law  

Fundamentals of Criminal Law by Adam J. McKee

The broad topic of constitutional law deals with the interpretation and implementation of the United States Constitution and the constitutions of states. The U.S. Constitution is the legal foundation of the United States, as the various state constitutions are to the states.

The U.S. Constitution deals with many important relationships in our country, including relationships among the states, the states and the federal government, the three branches of the federal government, and the rights of the individual in relation to both federal and state government. The constitution specifies that the government be divided into three branches such that no single branch of government can become too powerful. Traditionally, those branches are the Executive, the Legislature, and the Judiciary. The legislature makes the law, the judiciary interprets the law, and the executive enforces the law. Thus, as a law enforcement officer, you are an agent of the executive branch.

As the interpreter of the Constitution, the Supreme Court of the United States has provided the foundation of modern constitutional law through its many decisions. As a consequence, the study of Constitutional Law focuses heavily on Supreme Court cases.

For state law enforcement officers (local officers get their powers from state law, so they are considered state officers under constitutional law), the constitution of the state is critically important. As the U.S. Supreme Court interprets the federal constitution, the State constitution is interpreted by the Supreme Court of that state.  Local law enforcement officers, then, must pay close attention to the decisions handed down by both state and federal courts.

The fact that the United States is a federal system can cause some confusion. Police officers have two constitutions and two supreme courts telling them the law and providing guidance as to how to enforce that law. What if they say different things?

The basic rule is that the United States Constitution is the supreme law of the land. The U.S. Constitution, as interpreted by the U.S. Supreme Court, trumps every other source of law. That is, the legislature and courts of a state cannot restrict the liberty of any person in violation of the U.S. Constitution. And, since police officers are agents of the state, they must be sure to do exactly what the Constitution tells them.   Failure to do so can result in a lawsuit naming the officer, the agency the officer works for, and the municipal government that the agency serves. Similarly, the Supreme Court of the United States (SCOTUS) has the power to invalidate the laws passed by state legislatures if they determine that those statutes violate the United States Constitution.

Term of Art:  The Court

When legal writers refer to the Court (with a capital C) and no context is provided to signal which court they are talking about, you can assume that they are talking about the Supreme Court of the United States.  In writings where a particular court has already been identified, then the writer may use “the Court” to refer to the particular court being discussed. Always keep in mind that when reading the law, context is critically important.  It is best to read everything and avoid “skimming” for legal information.

The Supreme Court has the power to decide whether a law is constitutional or not.  This power is often called the power of judicial review.  This power reaches beyond the Congress of the United States. The Supreme Court can assess the validity of state and local laws as well. In addition to being able to assess the constitutionality of written laws, they can also determine if certain acts by government agents (for example, police officers) are constitutional. The state Supreme Court does not have the power to interpret federal law, only the laws of the state. The Arkansas Supreme Court, for example, can interpret the constitution of Arkansas to provide a higher degree of protection to citizens, but it cannot interpret state law such that it offers less protection than the minimum standards of the U.S. Constitution allow.

Term of Art

A term of art is a word or phrase that has a precise, specialized meaning within a particular field or profession.  Always keep in mind that, in law, words and phrases often have specialized meanings that limit or go beyond the everyday use of the term.  A signal that this is the case is when the same word or phrase appears repeatedly without variation in a case or other legal writing.

Major Constitutional Limits

Professor Joel Samaha describes seven major constitutional limits on criminal law in his book Criminal Law.  His list is as follows:

  1. The rule of law
  2. The prohibition of ex post facto laws
  3. The right to “due process of law”
  4. The right to “equal protection of the laws”
  5. The right to free speech, association, press, and religion
  6. The right to privacy
  7. The right against “cruel and unusual punishment

We will add “double jeopardy” as an eighth element.

References and Further Reading

Constitutional Law.” International Encyclopedia of the Social Sciences.

Modification History

File Created:  07/12/2018

Last Modified:  09/05/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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