Legal Research | Section 4.1


Fundamentals of Legal Research

Adam J. McKee, Ph.D.


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Constitutional Analysis


****This Section is Substantially Incomplete****

Because the Constitution is the “supreme law of the land,” it is critically important to identify any constitutional issues very early on in any legal research project.  This is not as easy as it may sound at first.  To withstand the test of time, Constitutional must be written in language that (for the legal researcher) can be frustratingly vague.  Consider the text of the Fourth Amendment:

“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.”

What exactly is an “unreasonable search?”  What is probable cause, and how do police officers know if they have it?  How much information is necessary in “particularly describing” a place?  Examples of this necessarily vague language abound in the Constitution.  Most of these questions have been answered to some degree.  Recall that the Supreme Court of the United States has the ultimate authority to determine what the various phrases and clauses of the Constitution mean in practice.  This means that when a legal researcher is faced with a question involving a constitutional issues, the case law interpreting and clarifying those issues must be consulted.  This kind of legal research is complicated by the peculiarities of federalism.

Recall that the term federalism is used to describe the American system of government where there is a federal government operating parallel to many state governments.  Also, recall that the most important protection of Americans’ civil liberties is the Bill of Rights.  The Bill of Rights, being part of the federal Constitution, applies only to abuses by employees of the federal government.  This holds true as long as we consider the Bill of Rights, but gets complicated when we consider the Fourteenth Amendment.

The Fourteenth Amendment to the Constitution rose out of the ashes of the American Civil War.  It was a time when the liberties of all Americans had been won through bloodshed, but little prevented individual states and the criminal justice agencies within them to abuse these hard-won liberties.  Perhaps the most litigated clause of the Fourteenth Amendment is the Due Process Clause.   The Due Process Clause, on its face, prevents state governments from depriving people of life, liberty, and property without a legal reason.  Starting in the 1920s, the Supreme Court used the due process provision of the Fourteenth Amendment to prevent the states from making laws and engaging in practices that were deemed fundamentally unfair.  Since that time, that majority of provisions in the Bill of Rights have been applied to the states through what has come to be known as the Doctrine of Incorporation.

The fact that the federal constitution dictates state law when there is a substantial federal question, the federal courts and the state courts are said to have concurrent jurisdiction.  Concurrent jurisdiction means that two or more governmental entities have control in a particular situation.  When a conflict exists between state and federal laws, federal law is said to “control” because of the supremacy clause of the federal Constitution.  When a state has a law that is determined by the Supreme Court of the United States to be contrary to the federal Constitution (such as by violating due process), the Supreme Court will overturn the law, making it unenforceable.  It is best to view due process standards as a minimum standard that all states must meet.  States are free to reach for a higher standard and offer civil rights beyond those required by the federal constitution.

Modification History

File Created:  08/08/2018

Last Modified:  06/11/2019

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

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