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Facial vs. As-Applied Constitutional Challenges: What Exactly Is Being Challenged? A facial constitutional challenge argues that a law is unconstitutional in itself, while an as-applied constitutional challenge argues that a law is unconstitutional as applied to a particular person or set of circumstances. The distinction is fundamental to constitutional litigation. In a facial challenge, the focus is on the legal rule itself: the challenger contends that the statute cannot constitutionally operate in the way the Read more

Constitutional Challenges: How a Law Is Challenged as Unconstitutional A law is challenged as unconstitutional when a person, organization, or government entity with a proper legal claim asks a court to determine whether the law is consistent with the Constitution. In the United States, this usually happens through an actual lawsuit rather than through a separate constitutional review procedure. A plaintiff who is affected by a law may argue that the law violates a constitutional Read more

Standing, Justiciability, and Access to Constitutional Courts Standing and justiciability determine whether a constitutional dispute can properly be heard by a court. In the United States, a person cannot ordinarily ask a federal court to decide a constitutional question simply because they believe that government has acted unlawfully. The plaintiff must generally demonstrate a sufficient personal stake in the dispute, including an actual or imminent injury that was caused by the challenged conduct and can Read more

Constitutional Remedies: What Happens When Government Violates the Constitution? When government violates the Constitution, the legal system can provide several different remedies depending on the nature of the violation, the government actor involved, the right that was violated, and the circumstances of the case. Constitutional remedies can include invalidating or enjoining unconstitutional government action, suppressing illegally obtained evidence, awarding damages in appropriate cases, ordering government officials to perform or stop performing particular acts, and granting Read more

Constitutional Privacy and the Right to Be Left Alone: Privacy, Liberty, and the Limits of Government Power Constitutional privacy is the principle that government cannot intrude upon certain aspects of an individual’s life without sufficient constitutional justification. Although the U.S. Constitution does not contain a single provision stating “the right to privacy,” the Supreme Court has recognized several forms of constitutional privacy through provisions including the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. These protections Read more

Freedom of Religion and the Constitution: Religious Liberty, the First Amendment, and the Limits of Government Power Freedom of religion is the constitutional principle that government may not establish an official religion or prohibit individuals from freely practicing their religion. In the United States, this protection is principally expressed through the two Religion Clauses of the First Amendment: the Establishment Clause and the Free Exercise Clause. Together, they protect religious liberty by restricting governmental control Read more

Fundamental Rights and Constitutional Limitations: How Constitutional Rights Are Protected and Restricted Fundamental rights are among the most important protections in a constitutional legal system. They safeguard individual liberty, equality, dignity, participation in public life, and other interests considered sufficiently important to receive heightened constitutional protection. But fundamental rights are rarely absolute. Constitutional law therefore has to solve two problems at the same time: protecting individual freedom from government abuse and allowing government to pursue Read more

Constitutional Rights vs. Statutory Rights: What Is the Difference? Constitutional rights and statutory rights are both legally enforceable rights, but they do not have the same source, status, or protection. A constitutional right derives from a constitution—such as the United States Constitution—and therefore operates at the highest level of the domestic legal hierarchy. A statutory right is created by legislation enacted by a legislature. Because ordinary statutes are subordinate to the Constitution, a statute that Read more

Equal Protection and Constitutional Equality: How the Constitution Limits Discrimination by Government Equal protection is the constitutional principle that government must not arbitrarily treat similarly situated people differently under the law. In the United States, the central constitutional source is the Equal Protection Clause of the Fourteenth Amendment, which provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The Clause is therefore not a command that Read more