§ 4.02 Relevant Constitutional Provisions

§ 4.02 Relevant Constitutional Provisions¹

[A] Bill of Rights

The first 10 amendments to the United States Constitution, the so-called "Bill of Rights," restrict the power of the federal government in its relationship to individuals. Various provisions of the Bill of Rights are relevant in the study and practice of the substantive criminal law. The First Amendment provides, in part, that "Congress shall make no law . . . abridging the freedom of speech." Criminal laws that prohibit speech or chill expression, such as some laws prohibiting the defacing or burning of the American flag, are subject to constitutional attack under this amendment.²

The Second Amendment provides, in full, that "[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." Although this amendment was once thought by many to deal merely with the right of a militia to be armed, the Supreme Court recently held that the "right to bear arms" is a personal right, although this right is subject to regulatory and criminal laws imposing reasonable conditions on the sale and possession of weapons.³

The Fourth Amendment provides in pertinent part that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated." Evidence obtained by the police in violation of this amendment may be excluded at a defendant's criminal trial.⁴ This amendment also limits the degree of force that a police officer may use in arresting a suspect or preventing an arrestee from escaping. This limitation can affect the scope of criminal law defenses that would otherwise apply to law enforcement officers.⁵

The Eighth Amendment states that "cruel and unusual punishment [shall not be] inflicted." This amendment restricts legislative action in two ways: (1) it imposes limitations on what legislators may define as criminal;⁶ and (2) it prohibits punishment that is barbarous in its infliction⁷ or grossly disproportional to the offense committed.⁸

[B] Fourteenth Amendment

Whereas the Bill of Rights limits the federal government in its relations with individuals, the Fourteenth Amendment to the United States Constitution imposes limits on state and local government. The amendment reads in full:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person...