Where do you look to see if something you want to do violates some criminal law? The answer is that criminal law originates from many sources. One major source of criminal law is the federal and state constitutions. Another source is the state statutes and federal congressional acts. Criminal laws can also come from administrative agencies that make state and federal administrative rules. Other criminal laws, called case law, originate from appellate court opinions written by judges.

4.4.1 Constitution of the U.S.

The United States Constitution recognizes only three crimes—counterfeiting, piracy, and treason. Nevertheless, it plays one of the most significant roles in the American criminal justice system. First, the Constitution establishes limits on certain types of legislation or substantive law. Secondly, it provides significant procedural constraints on the government regarding how to prosecute individuals for crimes. Thirdly, the Constitution established federalism (the relationship between the federal government and state governments), and required the separation of powers between the three branches of government (the judicial branch, the legislative branch, and the executive branch). Lastly, it limits Congress’s authority to pass laws not directly related to either its enumerated powers (powers listed in the Constitution) or implied powers (powers inferred but not listed).

4.4.1.1 Constitutional Limitations on Criminal Law and Procedure Exercise

The drafters of the federal Constitution were so concerned about two historic cases of abuse by the English Parliament. Those abuses are the ex post facto laws and bills of attainder. Therefore they prohibited Congress from passing these types of laws by adding this limitation in the original body of the Constitution. (See Article I Section 9 of the Constitution.) Ex post facto laws are laws that are retroactively applied, such as new punishments retroactively increased. Bills of attainder are laws that are directed at named individuals or groups. It has the effect of declaring people guilty without proper trial.

4.4.1.1.1 First Amendment Limitations (Example)

Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example, picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom of speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989). The Court upheld a local ordinance prohibiting public indecency when applied to business establishments wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has recognized political speech and commercial speech as protected by the First Amendment as well. See e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

The Court has, however, deemed some speech not worthy of protection and, consequently, may be limited. According to the Court, non-protected speech includes libel and slander, fighting words, words that present a clear and present danger when spoken, obscenity and profanity. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Court has said anti-hate crime statutes permissibly limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech. See e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).

The First Amendment limits Congress’s authority to legislate in the realm of religion as well. Finally, the First Amendment guarantees that people have the right to freely associate and assemble with others. However, the Court has indicated that the government can place reasonable time and manner limitations based on the location in which the gathering is to take place. See e.g., Cox v. Louisiana, 379 U.S. 536 (1965).

4.4.1.1.2 Second Amendment Limitations (Example)

Legislatures can place restrictions on weapons and ammunition purchase and possession. Still, they cannot completely restrict people’s ability to possess guns for the purpose of self-defense. See, District of Columbia v. Heller, 554 U.S. 570 (2008) (an individual’s right to possess a weapon is unconnected with service in the military). According to the Court, the Second Amendments’ protections apply equally to the states. See McDonald v. Chicago, 561 U.S. 742 (2010).

4.4.1.1.3 Fourth Amendment Limitations (Example)

The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be reasonable. The Court interpreted the Fourth Amendment in many cases and the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s constant refinement and revision.

4.4.1.1.4 Fifth Amendment Limitations (Example)

The Fifth Amendment protects against self-incrimination (having to disclose information that could ultimately harm you) in that it states that no person “shall be compelled in a criminal case to be a witness against himself.” Defendants have the right not to testify at trial and the right to remain silent during a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law, and prohibits taking private property for public use (a civil action). This is discussed more fully below as a Fourteenth Amendment right.

4.4.1.1.5 Sixth Amendment Limitations (Example)

The Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public trial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the right to be told what charges have been filed, the right to confront witnesses at trial, the right to compel witnesses to testify at trial, and the right to assistance of counsel.

4.4.1.1.6 Eighth Amendment Limitations (Example)

Legislatures cannot make laws that make the punishment for a crime “cruel or unusual.” This means that punishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit the crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment also prohibits the imposition of excessive bail and excessive fines.

4.4.1.1.7 Fourteenth Amendment Limitations (Example)

The Fourteenth Amendment mandates that states do not deny their citizen’s due process of law. Due process can be summarized as making sure that the government treats people fairly. Part of fairness is giving people fair warning as to what behaviors are permitted and what behaviors are not permitted. Thus, legislators must be very careful and clear when making new laws. They cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not understand the law or that would allow police too much discretion in how they will interpret and apply the law because such a law would be considered void for vagueness.

The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot make laws that treat people differently unless the laws are rationally related to a legitimate government interest.

Even outside of the criminal law it’s important to understand how the 27 amendments affect our lives. Watch the following overview for a comprehensive overview of each of the 27 amendments.

4.4.2 State Constitutions

States’ constitutions, similar to the federal constitution, set forth the general organization of state government and basic standards governing the use of governmental authority. Although the federal constitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State constitutional rules are supreme when compared to other state legal sources such as statutes, ordinances, and administrative rules. The federal constitution sets the floor of individual rights. But states are free to provide more freedoms and protections that are not granted by the federal constitution.

State constitutions affect those that reside in them daily. Watch this video to have a deeper understanding of why state constitutions are so important.

4.4.2.1 Rule of Law, Constitutions, and Judicial Review (Example)

One of the key features of the American legal system has been its commitment to the rule of law. Rule of law is the belief that everyone is equal before the law and that the same set of laws applies to everyone (Feldmeier, J.P., & Schmalleger, F., 2021).

“I firmly believe in the rule of law as the foundation for all our basic rights.”
Justice Sotomayor

Watch the following video to learn the far-reaching effects of the rule of law.