Constitutional Law For Dummies®

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Constitutional Law For Dummies®



About the Authors

Glenn Smith, JD, LLM, is a full-time constitutional law professor at California Western School of Law in San Diego, California. He also regularly teaches as a visiting professor of political science at the University of California, San Diego (where in 1996 he was named as a Professor of the Year by graduates of the university’s Marshall College). At California Western School of Law since 1985, Professor Smith teaches a nationally recognized course in which students reenact Supreme Court cases, taking on the roles of justices and attorneys arguing and deciding constitutional issues. He regularly teaches other constitutional law courses and has published numerous articles on constitutional law for scholarly journals and for publications aimed at more general audiences. Professor Smith regularly speaks about constitutional controversies in media interviews and speeches.

A Root-Tilden scholar at New York University School of Law, Professor Smith received his juris doctorate in 1978. He earned a master of laws degree from Georgetown University Law Center. From 1979 to 1983, he served as a legal counsel to the United States Senate Governmental Affairs Committee.

When Professor Smith isn’t teaching or writing, he enjoys the company of friends and family — especially when travelling, wining, and dining are involved. He is mad for strong espresso and cappuccino!

Patricia Fusco, JD, Deputy Attorney General, California Department of Justice, currently prosecutes complex white-collar felony crimes in Southern California and has been a practicing attorney in San Diego for 13 years. She has extensive experience as a criminal prosecutor and civil litigator, including prosecuting domestic violence, code enforcement, and other criminal cases, and handling construction litigation and personal-injury defense. A graduate of Southern Connecticut State University (with a bachelor of science in journalism) and California Western School of Law, Attorney Fusco was a paralegal and a legal secretary prior to entering law school in 1995. She enjoys cooking, entertaining, wine tasting, playing tennis, and spending time with friends and family, including her two pups, Rudy and Auggie.


Glenn Smith dedicates this book to his wonderful wife, Diane. Without her constant inspiration and expert editing, the book would not have been written.

Patricia Fusco dedicates this book to Mom and Dad. Wish you were here to see this. I miss you both!

Authors’ Acknowledgments

We would like to thank Colleen Monaco and Margot Hutchison for opening up the opportunity for us to write this book. Also, many thanks go out to our editors at John Wiley & Sons, Inc., in New Jersey and Indiana, for their encouragement and expert guidance throughout the writing process.

Publisher’s Acknowledgments

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Few subjects affect your everyday life more than constitutional law. From how your government is organized to whether you have a right to speak freely or when police can search your house, what the Constitution says and means has a big impact on you. Constitutional law, with all its complexity and range, may at times be maddening, but it’s a fascinating subject to delve into.

We think that after exploring the topics in this book, you’ll find constitutional law as interesting as we do. And whatever your purpose in getting this book, you will find it a useful reference in the future. It will give you the foundation to better understand hot topics discussed in the news — and even give you ammunition to win those debates at the water cooler!

About This Book

We wrote this book with a focus on undergraduate students taking classes on constitutional law. This book is a good supplement that will ease students’ understanding of course material. But the book is also a good reference guide that will prove useful to law students, journalists, and eve just plain interested citizens. We wrote the book with an eye toward explaining complex concepts so that everyone can understand them. You don’t necessarily even need to read the entire book — you can easily reference different sections on an as-needed or as-interested basis.

Constitutional Law For Dummies helps you realize like never before the importance of the Constitution and the ways it is interpreted. In this book you see how the courts analyze whether you have a right to have a gun in your house or to yell obscenities in a public place, for instance. You find out how the United States government is structured (and why) and just what the Supreme Court’s role and importance are. It has been said that Supreme Court justices are some of the most powerful people in the world. When you read this book, you will see why.

In this book, you find that we regularly reference legal tests and doctrines. (For example, in Chapter 11’s discussion of freedom of speech, we partly organize the discussion around the key distinctions between unprotected and protected speech and the different levels of scrutiny for content-based versus content-neutral regulation.) We’re not trying to make a constitutional lawyer out of you (although it’s fine with us if you become one). Instead, our emphasis on legal tests and doctrines reflects both an educational and practical strategy.

Educationally speaking, being familiar with the applicable legal rules is critical because these rules are the lenses courts and other Constitution interpreters use to see their way to the essence of the Constitution and its meaning in the 21st century. If you want to understand modern constitutional law, you need to understand the legal tests and doctrines critical to shaping it. Plus, legal tests and doctrines are a great way to organize a series of case results that could seem confusing and arbitrary without presenting the organizing principle underlying them.

Practically, we give legal tests and doctrines their due so that we can be sure this book serves the needs of as many readers as possible. You may be a law student, or be thinking about becoming one. If so, you absolutely will want to soak up the rules and doctrines explained in this book. If you’re an undergraduate constitutional-law student, we want to make sure that our book helps you prepare for class. Even if your professor doesn’t emphasize legal tests and doctrines, our doing so will help you deeply understand the materials — and maybe even ace the exam!

Conventions Used in This Book

We generally abandon the technical ways lawyers write about cases in briefs for courts or legal publications. When we talk about a case decided by the Supreme Court or a lower court, we give you the official case name and the citation to where it can be found in the hard-bound volumes of published cases. We’re not expecting you to immediately run out to your nearest law library! But if you want to read more from the case, you can usually find info online by entering the case name and/or citation in a search engine.

Following is the explanation of what the parts in a Supreme Court case citation mean. We use Jones v. Adams, 222 U.S. 11 (1999), which we made up, as a sample.

check.png Jones: The first party is almost always called the petitioner, the person who lost in the lower court immediately below the Supreme Court in the judicial pecking order. Generally, as cases wend their way through state or federal courts, the party named first is referred to as the plaintiff (the person bringing the suit). But in U.S. Supreme Court cases, this first-named party is petitioning the Court to review and reverse a matter decided in a lower court, in which he may or may not have been the instigator of the case.

check.png Adams: The second name (the one after the v.) usually signifies the respondent, who had the more favorable ruling in the immediately lower court. When a case first starts out, the second named party is the defendant, the person being sued. But in U.S. Supreme Court cases, this second person may or may not have been the defendant in the lower case. (Very much liking the opinion immediately below, the respondent is countering, or responding to, the petitioner’s request that the Court hear and possibly reverse the case.)

check.png 222: This number refers to the volume of collected cases from the court (in this case, the U.S. Supreme Court) in which the opinion in this case is found.

check.png U.S.: These letters refer to the court deciding the case — here, the U.S. Supreme Court. Generally, these letters reference a series of books that report cases from different courts. You can tell from the abbreviation which series of books, and which court, the case comes from. Different courts have different abbreviations that would appear in this place in a case cite, which signals where the case was heard.

check.png 11: This number refers to the page number on which the reported decision in the case begins in that volume (in this example, 222).

check.png (1999): The year listed is when the case was decided. Because the wheels of justice sometimes turn slowly, it may be years after the case was initiated.

When discussing cases and theory, we use the words precedent, rule, decision, and doctrine interchangeably. These words have technically distinct nuances. But they (and other similar terms we use, like governing law) basically mean the same thing in this book. They all signify the current “rules of the road” used by courts and other Constitution interpreters in implementing the letter and spirit of the document.

We periodically use other words or concepts that may be unfamiliar to you. Where this occurs, we italicize the word or phrase to point out its importance, along with providing an easily understandable definition to help your reading. We don’t assume specialized knowledge or experience on your part.

What You’re Not to Read

We’d love for you to read every single word we wrote, but we’re realistic people. If you just want the bare-bones info, you can skip certain elements that enhance the text but aren’t essential for understanding.

Sidebars, which are the gray boxes, contain material that provides an interesting aside to a given topic. We may present an especially intriguing or cutting-edge case that helps illustrate a concept discussed in that chapter. Or we may comment on the practical importance of a legal rule under study.

Paragraphs marked with the Technical Stuff icon contain more-detailed information that will only fascinate the true constitutional-law geek. (If you find it interesting, we promise not to tell anyone.)

Foolish Assumptions

We wrote this book with the assumption that most readers are enrolled in an undergrad-level Constitutional Law course. Therefore, we cover essential topics that we think a college student (and even a law student) needs to grasp. However, you may also like this book if any of the following statements apply to you:

check.png You are considering becoming a lawyer and want to get a taste of one of the critical topics that will be covered in law school.

check.png You are a journalist covering stories about high-profile cases, and you need a better understanding of what the Supreme Court is all about and how to evaluate cases based on precedent.

check.png You are an interested citizen who wants to better understand the pivotal role constitutional law plays in how this country runs (or doesn’t!).

check.png You are considering going into politics and would like a better grasp on governmental structure and divisions of power.

check.png You are just a geek who loves to read about complicated subjects because you have a lot of brain power left after getting home from work and taking care of your house, your family, and your dogs.

We also assume that you know the following about the U.S. legal system:

check.png The U.S. Supreme Court is the highest court in the land, has the last word on cases appealed to it, and is the ongoing interpreter of the U.S. Constitution — though other courts, officials, and citizens get into the act a lot!

check.png A majority of justices (usually five or more) is needed to create a binding precedent (a decision that must be honored by lower courts and others). Even when a majority of justices agrees on who wins a lawsuit, however, no true majority opinion may be formed if the justices use different rules (doctrines) or theories in coming to a common result.

A plurality opinion is the leading view of legal issues shared by fewer than a majority of justices.

Whether or not a given constitutional challenge results in a binding majority opinion, one or more justices often writes concurring opinions elaborating on their reasoning.

check.png Justices disagreeing with the majority result or reasoning usually write dissenting opinions pointing out why they disagree and what conclusion they wanted. Dissenting opinions often help point to what the majority means. One era’s dissent can become tomorrow’s majority.

How This Book Is Organized

This book is logically organized by types of issues. It concentrates mostly on civil (noncriminal) constitutional issues, although the last part covers constitutional law as it relates to certain rights in the criminal arena. And sometimes topics overlap. Following are the general categories and a bit about what you find in each part of the book.

Part I: Studying Constitutional Law: The Foundations

Before really being able to master any subject, you need a foundation. You can better understand constitutional law if you first have an understanding of the document itself. So in this part we start with a brief history surrounding the Constitution. We then break down the document into five major facets. We also discuss some key aspects of constitutional law, including the different Constitution-interpreting theories and how constitutional issues differ from nonconstitutional ones.

Part II: Allocating Governmental Roles

The most important feature of the original Constitution adopted in 1791 is how it defines the parameters of the new government. It forms the federal government, allocates its powers among three branches, and establishes checks and balances on each branch. In this part, we explain modern understandings about the powers and limits of the federal government. We chart the resulting limitations on state power and we also explain current realities and uncertainties in the relationships among Congress, the president, and the federal courts.

Part III: Protecting Property Rights and Avoiding Arbitrary Action

Important to the framers of both the original Constitution, the Bill of Rights, and later constitutional amendments was making sure that property rights were adequately protected under the new government. You see in this part how the courts have interpreted the several constitutional clauses dealing directly with property rights over the years. A related framer focus was protecting liberty from arbitrary deprivation and people from discriminatory action; in this part we also examine how the framers’ efforts have fared for different rights and groups.

Part IV: Rights to Self-Expression and Political Participation

In these chapters, we discuss the controversial topics of freedom of speech and religion. We bring you up-to-date on these issues and explain how courts have determined what laws government can and cannot adopt, and the way Americans exercise these rights. When is speech protected, and how much? How separate must church and state really be? And how does the Constitution shape the rules of engagement in the political arena — on a variety of matters ranging from voting and running for office to establishing electoral districts? The answers to these questions are the subjects of Part IV.

Part V: Understanding Privacy Rights

The Constitution’s framers had major problems with how British and colonial governments invaded privacy rights, especially in the criminal process. This part explores the strong “privacy” protections modern courts have found to be an integral part of the way the Constitution’s due-process provisions protect “liberty.” We also devote two chapters to the constitutional rights of Americans not to incriminate themselves and not to have their homes or other property searched arbitrarily.

Part VI: The Part of Tens

In keeping with how all For Dummies books are written, here we give you our top ten lists. Hundreds of constitutional-law cases are important, but we have done our best to narrow them down to ten of the most important cases involving government power and individual rights. We give you some of the details of the cases and explain how they came out. These are cases you may often hear mentioned as laying the groundwork for certain rights or concepts discussed in the news or magazines or periodicals.

Icons Used in This Book

We use the following icons in this book to point out certain information.

realworldexample.eps This information brings certain topics to life for you. We discuss real case examples so that you can see how a concept plays out in real legal, political, or social forums. Understanding actual examples helps you remember the concepts.

remember.eps This icon is a reminder of some important information that you should keep in mind when dealing with constitutional law. Reading the information accompanying these icons helps you understand the surrounding text and larger aspects of constitutional law.

tip.eps Paragraphs marked with this icon give you shortcuts for understanding Court decisions or predicting what the Court will do in the future.

technicalstuff.eps At times, we make technical distinctions of interest to sticklers, but these paragraphs go beyond the basics and aren’t necessary for you to read if you don’t want to.

Where to Go from Here

Where you go from here really depends on what your purpose was in getting this book. If you are a student, you may want to consult it on a subject-by-subject basis, reading certain chapters or parts before you delve into textbook reading assignments so you can understand the material more easily. If you’re new to this subject, very curious about all sides of constitutional law, or an overachiever, then you may just want to read the whole book from start to finish. But otherwise, a subject-by-subject approach should work for just about anyone, so check out the table of contents and see what interests you most. Either way, adjust your seat belt as we take you on a flight through the most important aspects of a fascinating subject.

Part I

Studying Constitutional Law: The Foundations


In this part . . .

The basis for constitutional law is the U.S. Constitution, and it has multiple facets. So before you approach learning about constitutional law, you need a foundation — you need to know what the Constitution aims to do. This part gives you that foundation, starting with a history of the document itself. Several chapters address its main aspects, and then we give you some details on key overall features so you can gain a better general understanding of the Constitution and related law. We also discuss where many people go astray in analyzing the Constitution so you won’t fall prey to common mistakes.