| Curtis E.A Karnow is a judge with the Superior Court of California, County of San Francisco. He graduated from Harvard College and the University of Pennsylvania Law School. He has worked a federal prosecutor, and in law firms where he specialized in antitrust, intellectual property and internet law. Judge Karnow has lectured in law school across the United States, and teaches a wide variety of course to new and experienced judges. He is the author of many articles and books including “How The Courts Work: A Plain English Explanation of The American Legal System,” written with his wife, a middle school teacher. |
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Constitutional Rights
Constitutional Rights
The notion of “constitutional rights” is often tossed about without a good understanding of what it means, and without a sense of the unique position citizens of the
United States
enjoy as a result of those rights.
This article outlines some of those rights, and suggests a series of issues and questions for discussion. Generally I do not give answers here, keeping the focus on questions, and encouraging readers’ thinking on how our underlying constitutional values inform how we think about these questions.
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Introduction
The idea of “constitutional rights” usually refers to certain rights individual citizens have as against governmental power. These rights are guaranteed by the enduring central document of our nation, the Constitution of The United Statesundefinedthe Constitution of the federal government which reigns supreme throughout the country. States, such as
California, also have their own constitutions, and often the rights found there are similar to those in the federal Constitution, but here I’ll limit my comments to the federal Constitution.
People referring to ‘constitutional rights’ usually mean rights in the amendments to the Constitution which became effective in 1791, some years after the original Constitution in 1787 but now an integral part it. People usually mean the rights of the First Amendment (to speak, to freedom of religion, to assemble and petition the government). Or they may mean the Fourth Amendment right to be free of unreasonable searches and seizures; or perhaps the Fifth Amendment right to not be compelled to be a witness against oneself. There are other rights as well, such as to a speedy and public trial, to a jury, and others, but here I’ll provide a short discussion of parts of the First, Fourth and Fifth amendments.
But first, a few general points. These rights were originally drafted to be effective as against the federal government- not state governments, not other people, and not companies. After the Civil War, the Supreme Court interpreted then new amendments (the so-called “Civil War Amendments” to the Constitution) to require the First, Fourth, and Fifth Amendments (and others) to also apply to state (and local) governments. But it’s still true that they only apply as against government: no matter what your kids protest, they have no first amendment right to say anything they want at the dinner table! And one cannot invoke the Fourth Amendment against a private company that, for example, searches you on your way into the office (although that might violate other laws). Click here to read the full article.
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