3.10 The Constitution
Chantel Chauvin
Constitutional Protections
The U.S. Constitution was originally adopted in 1787. The text of the Constitution contains a handful of procedural justice guarantees to protect citizens from government overreach.
Procedural justice guarantees found within the Constitution include
- Habeas Corpus
- Bills of Attainder
- Ex Post Facto Laws
- Trial by Jury
- Trial for Treason
Literally, habeas corpus is Latin for “you should have the body”. A writ of habeas corpus is a court order directed at someone who has custody of a person ordering the release of that person because his or her incarceration was achieved through unlawful processes. Sometimes referred to as “The Great Writ,” habeas corpus originated in the courts of England as a means of curbing the authority of the king (Sholar, 2007). Its importance grew over the centuries in England, and by the late 1700s, it was deemed so important that the framers of the U.S. Constitution included it in the first article. Article I, Section 9, Clause 2 provides that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Since that time, it has been interpreted more broadly than it ever was in England. The Great Writ is considered “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” (Harris v. Nelson, 1969, pp. 290–291). The writ of habeas corpus is an important form of procedural justice because it provides the mechanism to challenge unlawful incarcerations (Owen, Fradella, Burke, & Jopkins, 2019).
A bill of attainder is a legislative act declaring someone guilty of a crime and imposing punishment in absence of a trial. Because the determination of guilt is delegated only to the judicial system, the Constitution prohibits Congress and states from passing bills of attainder. This is to ensure that all people will have their day in court and that courts will hold all responsibility for determining whether or not persons are guilty based on evidence introduced at trial. This is important to the concept of procedural justice because it prevents “legislative oppression of those politically opposed to the majority in control” (Pound, [1930] 1998, p. 133). Guilt will only be adduced after a fair judicial process that accounts for relevant evidence (Owen, et. al, 2019).
The Constitution also prohibits ex post facto laws. An ex post facto law is any law that punishes an act that was not criminal when it was committed. The prohibition of ex post facto laws ensures that guilt can be assigned only after offenders have the opportunity to know their behavior was criminalized (Owen, et. al, 2019).
The Constitution guarantees that trials for all federal crimes (other than impeachment) shall be by jury. The Supreme Court has ruled that this right does not apply to petty crimes, military tribunals, or when the defendant has waived the right to a trial by jury. This right was expanded upon in the Sixth Amendment, discussed later in this chapter in greater detail (Owen, et. al, 2019).
The only crime defined in the U.S. Constitution (Article III, Section 3, Clause 1) is treason: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” The framers were concerned that simply espousing unpopular views in a new democracy might be considered treasonous. They defined the substantive elements of treason and procedure for proving it to ensure that simple speech could not be interpreted as the crime of treason; the First Amendment’s protection of free speech was not yet in existence (Owen, et. al, 2019).
Most of the other limitations are found within the Bill of Rights, the first ten amendments to the U.S. Constitution. The states adopted the Bill of Rights in 1791. The Bill of Rights also places certain limits on what behaviors may or may not be criminalized by the government. These limitations are covered in the First and Second Amendments.
Limitations Found in the “Penumbra” of the Constitution
Sometimes the Constitution doesn’t explicitly state a protection or right that the courts have nevertheless found to be inherent or found within the Constitution. Justice Douglas, writing the majority opinion in Griswold v. Connecticut, 381 U.S. 479 (1965), stated,
[The] . . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Fourth and Fifth Amendments were described . . . as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred in Mapp v. Ohio, 367 U. S. 643, 656, to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” (381 U.S. at 484-485)
For the past 57 years, legislatures were effectively prohibited from making laws that allow the government to invade people’s privacy, even though no specific amendment can be pointed to. In fact, from 1965 to 2015, the Supreme Court decided many landmark cases that referenced the right to privacy. Specifically, the Court found the right to privacy in the context of reproductive freedom (see, e.g., Roe v. Wade, 410 U.S. 113 [1972; right to abortion]; Eisenstadt v. Baird, 405 U.S. 438 [1972; the right of married persons to possess contraceptives]; Griswold v. Connecticut, 381 U.S. 479 [1965; declaring invalid the ban on contraceptives]; Stanley v. Georgia, 394 U.S. 557 [1969; the right to view and possess adult pornography]; and Lawrence v. Texas, 539 U.S. 558 [2003; the right of adults to engage in consensual sexual contact]). The right to privacy also supported the Court’s decision in Obergefell v. Hodges (2015), which required states to license and recognize same-sex marriages.
However, the existence of a constitutional right to privacy suffered a dramatic setback in June 2022, when the Supreme Court overturned its own precedent in Roe v. Wade (1972), deciding that the state of Mississippi could restrict access to abortion. While the written decision in Dobbs v. Jackson Women’s Health Organization (2022) claims that other freedoms underwritten by the right to privacy (such as same-sex marriage, interracial marriage, and access to contraception) were not at risk, legal scholars generally agree that these guarantees may also be subject to judicial revision.
Remedy sought by a person requesting release from an allegedly illegal or unconstitutional confinement