Decoding Constitutional Law in the Modern Era
Constitutional law is a body of law that involves the interpretation and application of the Constitution of the United States. It is not only a basic subject we all encounter in high school civics, but also one that plays a critical role in shaping what our society will look like in the future. Although decisions implicating constitutional rights are rendered by the Supreme Court, they often have more immediate effects on individuals and groups in their everyday lives. Exploration of the relevant cases allows us to understand better restrictive or expansive changes in government powers, as well as our rights as citizens.
Embarking on a discussion on constitutional law requires any exploration of such exciting topics such as the separation of powers, checks and balances, the Bill of Rights, federalism, and the judiciary. Some may find these concepts dry and dusty as it seems to have less relevance in the day-to-day than other fields of law. However, one has only to look at some contemporary issues — gun control, voting rights, abortion access, and affirmative action — to see that constitutional law is present and plays a larger role in the everyday lives of Americans than we are aware.
Understanding why and how the Constitution existed and what it protects is crucial in and of itself. One can argue that freedom of thought is one of the only freedoms needed in order to achieve an ideal society . The Constitution safeguards that freedom of thought, as the First Amendment protects our rights to freedom of speech and freedom of religion. When considering freedom of speech, we then must consider things such as campaign finance (Citizens United) and hate speech (R.A.V. v. St. Paul). Additionally, with freedom of religion (Lemon v. Kurtzman; Everson v. Board of Education), the Constitution protects our ability to pursue spiritual life of our own choosing without interference from the government. This means we don’t have to worship an individual as a god, nor do we need to even believe in a god as the Constitution guarantees us the endowment of life and liberty free from the dictates of our government. Such freedom is reflected in cases like West Virginia Board of Education v. Barnette, where the Supreme Court held that students being compelled to salute the American flag and recite the Pledge of Allegiance was a violation of their First Amendment rights. And so, in the very basics of constitutional law, we find the freedom to think — and through our choice of thought, we find the substance of who we are as individuals.
The idea of applying a modern approach to the study of constitutional law means looking at things through a contemporary lens. For example, in Roe v. Wade, the body of Roe became shorthand for abortion rights. Conversely, in Griswold v. Connecticut, the body of the woman represented privacy rights and the right to use contraceptives. I say no more, as I know you get the picture.
Key Contemporary Issues in Constitutional Law
The current political climate in the United States is a prime example of how complex and divergent constitutional law can be. Observers have been left to marvel at the relatively free rein that the President appears to have under the Constitution. Others have noted how the Constitution appears to be at one of those times when it is being tested in an unusual way. At the same time as we observe those things, we hear the important legal concept of equal protection undergoing challenge or reinterpretation.
The difficulties with constitutional law in this time frame relate both to global political changes and technological advances. In addition, the time of social movements testing the law appears to be coming. In the immediate past, civil rights, women’s rights and LGBT rights movements have tested bounds and expanded the law. In the immediate present, the First Amendment is testing the ability of government to determine the boundaries of acceptable speech.
Similarly, on the global stage, the Constitution of the former USSR remains unalterably associated with the political and personal oppression on the order of a totalitarian regime. Newer constitutions appear to contain language that is widely subject to challenge and revision if not change. One might observe that the Constitution was particularly helpful to us in the United States, but is of limited utility to others adapting the concept to different cultures.
As a result, revision and reinterpretation of constitutional law seems to be a work in progress in different parts of the world.
The Impact of the Digital Age on Constitutional Rights
The digital age has significantly reshaped the landscape of constitutional law, affecting both the expression and protection of our fundamental rights. From freedom of speech to invasion of privacy, technologies increasingly have become both a threat to and a protector of our constitutional guarantees.
The digital age has further complicated the analysis of First Amendment rights. The Supreme Court has long recognized the importance of protecting the free exchange of ideas in public spaces like parks or streets. However, with the rise of social media, the use of digital billboards, as well as private company websites and services, the lines between the public and private realms continue to blur. For example, when a social media platform like Twitter suspends a user’s account for abusive, harassing, or threatening behavior, are they violating the user’s First Amendment rights? As private actors, these platforms are not subject to First Amendment restrictions, and thus have the broad authority to remove content. However, if the deletion is otherwise arbitrary, such as purely based on the user’s viewpoint, a question emerges: does the First Amendment apply where the medium for free expression is private, but the intended audience is much larger? When a social media platform reaches tens of millions of people, is it fair to say that the company has published a public space?
These questions are far from theoretical. The Supreme Court is hearing oral arguments in September in Biden v. Knight First Amendment Institute at Columbia University, a case involving former President Trump’s suspension of various Twitter users. If it chooses to address the constitutional issues, the Court could clarify the answer, and in the process, add new rules to the digital-age rulebook.
Concerns related to the Fourth Amendment also continue to evolve, though the introduction of technological devices and data has changed the way courts examine traditional notions of search and seizure. In Carpenter v. United States, the nation’s highest court held that the warrantless seizure of an individual’s cell phone location information violated the suspect’s reasonable expectation of privacy under the Fourth Amendment. The Court’s decision suggested that the inclusion of new technologies could alter existing constitutional protections; however, the decision was limited to the specific facts before the Court. Thus, the world awaits further clarification on the Fourth Amendment’s protection of digital data.
The recent Supreme Court case of United States v. Rahimi could represent the next step in the Court’s Fourth Amendment jurisprudence. The decision, which was issued in the context of domestic violence, held that a gun violence restraining order triggered by a finding of domestic violence did not violate the suspect’s Second Amendment right to bear arms. But the case also made statements regarding the intersection of the Fourth and Second Amendments. The opinion acknowledged the digital age in its discussion, allowing that technology such as location tracking could implicate the Fourth Amendment but without explaining in what specific ways. Notably, the Court’s opinion departed from the parties’ arguments to determine that the initial restraint on the suspect’s gun rights after a domestic violence finding did not trigger the Fourth Amendment. The Court did not, however, address whether requiring the suspect to turn over his firearms during the Seventh Circuit appeal would trigger the Fourth Amendment.
The Supreme Court is not the only one with digital-age issues before it. Various circuit courts grapple with the impact of technology on our constitutional rights, such as the First Amendment, on a near-daily basis. Ohio State’s own Ian Flood explores some of these issues in his article, How Digital Technologies Affect The First Amendment’s Free Speech Protections in Social Media, Drones, And Other Modern Digital Platforms, published in the William & Mary Bill of Rights Journal.
Diversity and Inclusion in Constitutional Frameworks
"The Constitution of the United States and those of the States are themselves products of an environment of diversity. The founding of our nation involved mixing very different peoples, traditions, languages and physical conditions. Unlike most other countries, however, our tripartite system of government and a bicameral legislature ensured that diversity, rather than being crushed out, was nourished and expanded. The ugly blot of slavery, however, was tolerated and even countenanced until the War Between the States finally removed it. The amendment to the Constitution which followed is the 13th, which has never been repealed. There has been a slow but steady evolution in our jurisprudence to address the remaining ameliorable areas of discrimination and exclusion leading up to the landmark Loving v. Virginia Supreme Court case, which we have already discussed, and even beyond. Our Constitution has proved to be remarkably flexible in adjusting to changing needs and reflecting social progress. Progress has been naught, however, without forceful advocates. Individuals have made great sacrifices, many being tortured and killed, to insure that constitutional rights and guarantees are more than mere words on parchment.
No piece of paper, will, by itself, guarantee our liberties . . .only people can make them come alive." Justice William O. Douglas
International Perspectives on Constitutional Amendments
The reform of constitutional law, both in terms of substantive and procedural changes, requires careful deliberation within a national context. Recognizing this, many states have sought consultation with external entities to assist them in producing modern constitutions that are capable of withstanding pressures to transform in a lawless manner. As such, the influence of international human rights conventions on national constitutional documents cannot be overstated. Latin America presents a successful case study in constitutional reform where international human rights conventions have been influential within the region. Hugo Cavallaro points to the former constitution of Ecuador , the 1998 document, Article 66 of which expressly stated that ‘international treaties ratified by Ecuador on Human Rights were part of Ecuadorian Law’ and in the instance of ambiguity, the convention trumped national legislation. The latter drew upon the Constitution of Mexico which likewise, Article 1 of the 1917 document, states that ‘the recognition of human rights shall not be limited to those written in the Constitution.’ The jurisprudence that followed saw that the Mexican Supreme Court regarded the Convention Human Rights and international law as binding upon the lex formation of Mexican law, thus rendering human rights conventions superior to national law.
New Horizons in Constitutional Law Theory
The landscape of constitutional theory has evolved considerably in the face of innovative methodologies and interdisciplinary approaches, allowing for the emergence of novel approaches to longstanding legal issues. One of the notable new trends in constitutional theory is the application of behavioral science to legal analysis. This approach argues that human behavior is influenced by cognitive biases, social norms, and other psychological factors that also inform constitutional interpretation and judicial decision-making. The application of behavioral science to constitutional law has led to insights on how the behavioral sciences can also be viewed through the lens of law and as it provides new analytical tools for interpreting and applying the Constitution.
Another emerging theory is the emphasis on constitutional pluralism, which recognizes the need for a multiperspectival approach to understanding constitutional law. This approach emphasizes the importance of considering multiple legal traditions in the process of normative constitutional evaluation. Rather than seeking to invoke a singular legal framework, pluralists seek to construct a multifaceted and comparative approach to constitutional law. Pluralistic constitutional evaluation may ultimately take critically evaluates knowledge claims by examining which state is best given the circumstances rather than seeking to determine which state is best generally. Such an evaluative framework in the area of contemporary constitutional challenges to environmental policy, privacy protection, and health care regulation has been used to inform the growing literature on transnationalism and international law and what has been called "competitiveness analysis," which methodologically attempts to evoke state legal systems as means to an end without giving the systems themselves intrinsic value.
Finally, recent developments have focused on intersectional analysis, which draws upon the feminist critique of formal equality to highlight the limitations of traditional approaches to antidiscrimination law. Intersectional analysis, drawing on theories of cognitive dissonance and embarrassment, goes further by highlighting the disconnect between the judiciary’s understanding and theorization of social status hierarchies and social status hierarchies as found in lived experiences.
Future Paths in Constitutional Law
Looking ahead, the intersection of constitutional law with issues such as facial recognition technology, big data privacy, and climate change may prompt a re-engagement with the tension between public law structures and private power in an era where the state is not the only actor in power. The issues surrounding facial recognition are already raising questions about whether constitutional law can continue to be defined by a blind eye to the power of the local police state. In countries where the media has not provided much pushback by choice or censorship, or where civil society has been imprisoned or exiled, such as my home country Turkey, the issue has some urgency about it. The EU has explicitly banned facial recognition for the next five years, although the Council of Europe was incremental even in this regard .
On issues of big data, individual autonomy has been compromised as the implications of big data have been absorbed within constitutional understandings of individual freedoms, leaving individuals both vulnerable to corporate surveillance as well as to tool-oriented capabilities that can be existentially challenging. This technology is so powerful, that some argue that constitutional norms in their current form have failed to keep up, while others have argued that new norms are not required to prevent the loss of human agency. Dealing with the technology has proven difficult.
On climate change, politicization of issues defining existential threats to humanity has produced confusion in places where many such as Lower Courts in Brazil have yet to reconcile the balancing of rights with when they are implicated, cross-jurisdictional issues will become more prominent with each new decision. Whether the role of human life in constitutional law is principal, equal and prior to other interests depends on how constitutional law is understood. It is a variable proposition within the public law tradition.