Section 3.2: Substantive Criminal Law

We have previously discussed that criminal law has two main parts: substantive criminal law and criminal procedure. However, in a more specific sense, criminal law only refers to substantive criminal law. Criminal procedure is another category of law, and it is usually taught as a separate topic in most college criminal justice programs.

Substantive criminal law is the part of criminal law that identifies criminal acts.  These are acts not allowed by the government.  The punishments associated with committing these prohibited acts must also be specified. For example, murder is a type of criminal act forbidden by the government because it involves taking the life of another human being without any justification. In contrast, criminal procedure focuses on how law enforcement officials investigate, apprehend, and try people who have been accused of committing a crime.

Criminal law is the area of law that deals with crimes that are forbidden by the government and the punishments associated with committing them. Substantive criminal law is the part of criminal law that identifies criminal acts and the punishments associated with them. Criminal procedure, on the other hand, focuses on how (the procedures that they use) law enforcement officials investigate, apprehend, and try people who have been accused of committing a crime.

No Crime without Law

The concept of the Rule of Law is central to the American way of life. It asserts that no one is above the law, including those in positions of power, such as elected officials, judges, or law enforcement officers. This principle upholds the idea that a nation should be governed by laws that are consistent and apply equally to all individuals, regardless of social status or wealth.

The idea of the Rule of Law was established in America due to the colonial experience with the English monarchy. The English monarchy had a history of arbitrarily enforcing laws and punishing individuals based on personal interests rather than the impartial application of the law. The colonists saw firsthand how the arbitrary power of a monarch could undermine individual liberty and lead to abuses of power. To counteract this, the Founding Fathers of the United States drafted the Constitution, which established a system of government that enshrined the Rule of Law as one of its core principles.

The importance of the Rule of Law is demonstrated in various court cases. In Marbury v. Madison (1803), Chief Justice John Marshall wrote that the Constitution is “the fundamental and paramount law of the nation” and that any law that violates the Constitution is void. This decision established the principle of judicial review, which allows the Supreme Court to strike down laws that are inconsistent with the Constitution.

In addition, the Supreme Court’s decision in United States v. Nixon (1974) reaffirmed the idea that no one, not even the President of the United States, is above the law. The case involved President Nixon’s refusal to turn over tape recordings of conversations related to the Watergate scandal. The Supreme Court ruled that the President must comply with a subpoena for evidence in a criminal trial, thereby upholding the principle that the law applies equally to all individuals, regardless of their position of power.

The Rule of Law is essential to maintaining a fair and just society. It ensures that individuals are protected from arbitrary actions by those in positions of power and that laws are applied equally to all members of society. By upholding this principle, the American justice system promotes transparency, accountability, and trust in government institutions.

Constitutional Limits

In the United States, the powers of legislative assemblies, such as Congress and state legislatures, are not without limits. These limits are set by the Constitution, which serves as the supreme law of the land. The Constitution prohibits certain types of legislation, such as bills of attainder and ex post facto laws. A bill of attainder is a law that declares a person or group guilty of a crime without a trial, while an ex post facto law makes an act committed before the law was enacted a crime and punishes the act. Both of these types of laws are strictly prohibited by the Constitution to protect the individual rights of citizens.

Another aspect of criminal law that must be considered is the due process clauses of the Fifth and Fourteenth Amendments. These clauses require that criminal laws afford fair notice to the public, meaning that individuals must be able to understand what is prohibited by the law. Laws that are vague or ambiguous are prohibited under the due process clauses, as they could lead to arbitrary and discriminatory enforcement. If a law is found unclear by the Supreme Court, it will be declared void for vagueness and not enforceable.

This adherence to fair notice and the prohibition of bills of attainder and ex post facto laws help to ensure that the government cannot abuse its power by punishing individuals without due process or enacting laws that are discriminatory or unclear. 

First Amendment

The freedom of expression, which includes freedom of speech, freedom of religion, and freedom of assembly, is guaranteed to all Americans by the First Amendment of the United States Constitution. However, some limits to these freedoms exist to protect public health and safety. One principle used to limit speech is the clear and present danger test, which prohibits inherently dangerous speech, like falsely shouting “fire!” in a crowded theater.

Fighting words, speech intended to incite violence, hate speech, profanity, libelous utterances, and obscenity are also types of speech that are not protected by the First Amendment. Although difficult to regulate by law, courts have tended to protect more speech that would have once been considered obscene or profane.

Similarly, the Constitution also protects the freedom to practice religion, and courts will strike down laws that restrict this freedom. However, claims based on the free exercise of religion are not always upheld. For example, statutes that criminalize activities like snake handling, polygamy, and the use of hallucinogenic drugs have been upheld.

The First Amendment also protects the right of the people to assemble publicly, but, as with the other freedoms, it is not absolute. Courts have upheld restrictions on the time, place, and manner of public assemblies, so long as those restrictions are deemed reasonable and do not jeopardize public health and safety. The reasonableness of such restrictions usually depends on a compelling state interest.

Second Amendment

The Second Amendment of the US Constitution protects the right of citizens to possess and use firearms. However, this right is not absolute and has been the subject of much controversy and debate in recent years. The Supreme Court has ruled that the Second Amendment allows individuals to carry firearms for self-defense, and this right also applies to state laws through the Fourteenth Amendment. However, certain restrictions, such as background checks and waiting periods, are commonly imposed on gun ownership.

In some areas, the regulation of firearms is more stringent, with laws governing the purchase, carrying, and concealment of firearms. Additionally, the type of firearms that can be legally obtained may be limited. Most gun laws and concealed carry laws vary widely from jurisdiction to jurisdiction. Many criminal laws carry more severe punishments if firearms are involved in committing a crime.

Eighth Amendment

The Eighth Amendment to the United States Constitution prevents the government from imposing punishments that are considered cruel and unusual. However, the meanings of the terms “cruel” and “unusual” in this context are different from their everyday use. They are legal terms that refer to punishments that are excessive or inappropriate for the crime committed.

The Supreme Court of the United States has added the principle of proportionality to the Eighth Amendment. This means the punishment should fit the crime or at least not be grossly disproportionate. The idea of proportionality has been applied in cases that deal with the severity of the crime, the length of prison sentences, and whether the death penalty is constitutional.

In other words, the government cannot impose punishments that are too harsh or severe for the crime committed. This has been an issue in cases involving laws that impose mandatory life sentences for certain crimes, known as “three-strikes laws,” as well as cases dealing with the constitutionality of the death penalty.

The Right to Privacy

Most Americans believe that the right to privacy is a fundamental human right. However, it may come as a surprise that the Constitution does not specifically mention the right to privacy. The Supreme Court of the United States agrees that this right is essential to due process and has inferred the right from several other rights guaranteed by the Constitution.

Among these rights is the right to free association, which means that people have the right to join together and form groups without interference from the government. There is also a prohibition against quartering soldiers in private homes, which means the government cannot force citizens to house soldiers without their consent. Additionally, there is a prohibition against unreasonable searches and seizures, which means that the government cannot search a person’s property or take their belongings without a warrant or a valid reason.

The right to privacy has been used to protect many practices that were controversial or socially unacceptable to some people. Early courts decided that laws prohibiting the purchase of contraceptives by single people were unconstitutional based on arguments related to privacy rights.  In Lawrence v. Texas (2003), the Supreme Court ruled that laws prohibiting private homosexual activity were unconstitutional. In this case, privacy rights were the determining factor.

Even though the Constitution does not explicitly state that citizens have the right to privacy, the Supreme Court has established that the right is fundamental to due process and has inferred it from other rights. The right to privacy has been used to protect practices that some people may find controversial or socially unacceptable. It continues to be an important issue in many legal cases today.

The Fourteenth Amendment

The Equal Protection Clause is a crucial part of the Fourteenth Amendment to the United States Constitution, which guarantees that no state shall deny to any person within its jurisdiction the equal protection of the laws. This clause has been interpreted by the Supreme Court to prohibit the government from treating individuals differently based on their race, gender, religion, or other protected status.

In the context of criminal law, the Equal Protection Clause limits the scope of substantive criminal law by ensuring that laws are applied equally to all individuals, regardless of their race, gender, or other characteristics.

One way that the Equal Protection Clause limits the scope of substantive criminal law is by requiring that laws be enforced equally across all racial and ethnic groups. For example, if a law is passed that criminalizes drug possession, but the law is enforced more aggressively against African American individuals than against white individuals, this could violate the Equal Protection Clause. In such cases, the Supreme Court has found that the law is being enforced in a discriminatory manner and is, therefore, unconstitutional.

Another way that the Equal Protection Clause limits the scope of criminal law is by prohibiting laws that are inherently discriminatory. For example, a law that criminalizes the use of a particular religious garment, such as a hijab, would likely be considered a violation of the Equal Protection Clause. The law would be considered discriminatory because it targets individuals of a particular religion and therefore violates the principle of equal protection under the law.

The Equal Protection Clause has also been used to challenge laws that disproportionately impact certain groups of people. For example, a law that imposes mandatory minimum sentences for drug offenses may disproportionately impact African American individuals, who are more likely to be arrested and convicted for drug offenses than white individuals. If this is the case, the law could be challenged as a violation of the Equal Protection Clause.

In addition to limiting the scope of substantive criminal law, the Equal Protection Clause also limits the scope of procedural criminal law. This means that the government cannot treat individuals differently in the criminal justice system based on their race, gender, or another protected status. For example, if a prosecutor is found to be using peremptory challenges to exclude African American jurors from a trial, this could be considered a violation of the Equal Protection Clause.

The Equal Protection Clause is an important safeguard against discriminatory and arbitrary criminal laws and procedures. It ensures that the government cannot treat individuals differently based on their race, gender, or other protected status and that laws are enforced equally across all groups of people. By limiting the scope of the substantive and procedural criminal law, the Equal Protection Clause helps to promote fairness and equality in the criminal justice system. It helps to ensure that all individuals are treated with dignity and respect under the law.

Summary 

This Section covers the different aspects of criminal law and the Constitution of the United States. Criminal law is divided into two parts: substantive criminal law and criminal procedure. Substantive criminal law identifies criminal acts and their punishments, while criminal procedure focuses on how law enforcement officials investigate, apprehend, and try people accused of committing a crime. 

It also considered some of the constitutional limitations on criminal law.  The Rule of Law is important in America because it ensures that no one is above the law, including those in positions of power. The Constitution limits the powers of government and prohibits certain types of legislation. The First Amendment guarantees freedom of expression and religion but with limits to protect public health and safety. The Second Amendment protects the right to own guns, but with restrictions. 

The Eighth Amendment prevents cruel and unusual punishment. The right to privacy is inferred from other rights guaranteed by the Constitution. The Equal Protection Clause is a crucial part of the Fourteenth Amendment, which ensures that laws are applied equally to all individuals, regardless of their race, gender, or other protected status.

Bill of Attainder, Clear and Present Danger Test, Compelling State Interest, Concealed Carry Law, Criminal Procedure, Cruel and Unusual Punishment, Eighth Amendment, Ex Post Facto Law, Fair Notice, Fighting Words, First Amendment, Freedom of Assembly, Freedom of Expression, Freedom of Religion, Lawrence v. Texas (2003), Right to Privacy, Roe v. Wade (1973), Schenck v. United States (1919), Second Amendment, Void for Vagueness

[Back | Contents | Next]

Last Updated:  07/13/2023

---

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