(Basic up front disclaimer: These are over simplified concepts, and this post is not to be taken as legal advice. I’m not your lawyer, I’m just a writer who is also a lawyer 🙂
Constitutional Law concepts are probably the ones the average lay person knows the most about. We all know we have the right to remain silent, to an attorney, to due process. We have rights that the government is not allowed to violate. That doesn’t mean the government (as in government actors) doesn’t violate them. It means we have a case to take to court when it does.
So what do you do if your character has a run in with cops, or there’s a lawsuit for violation of rights? Most people go off what they’ve seen on TV, because we’ve all seen cop and lawyer shows on TV.
Sidebar? Don’t get your legal info from TV! 🙂
Shows like Law and Order get a lot of stuff right, because they apparently do some research, but there are some rules that get tossed out the windows for the sake of the story here or there.
To see if your character has a Con Law issue she can use to get evidence tossed out in a criminal case or to sue the government for a rights violation, you have to ask:
1. Is the government doing it? If someone breaks into your house, gets evidence about your crime, and gives it to the cops, yes, that person can and should be charged with burglary. Does the evidence get tossed because of a violation of your rights again unreasonable search and seizure? Not unless the cops put the thief up to it.
You don’t have Constitutional rights that protect you from other people. The government passes laws to protect you from other people. The Constitution lays out laws to protect you from the government.
2. 4 Basic Lawsuit Questions: i. Standing: a stake in the case, as in, you are asking for the court to fix something for you. You can’t just be pissed that your sister was roughed up by cops, your sister has to bring the case. ii. Ripeness: there’s a controversy that needs to be solved now, not something that could occur in the future. iii. Not-Moot: the controversy still needs to be settled, there’s still some kind of “injury” to the person bringing suit. iv. Not a political question: ummmmm, I’d explain more if I could, but basically it’s the court saying, “That’s up to the President or Congress, we are not climbing into that ring.”
3. What level of government? Does your character have troubles at the local, state, or federal level? This matters because those laws can be very different and you’ll want to look up exactly what law your character is violating. BUT, violation of rights lawsuits can always be taken up to the federal level. If it’s a city ordinance, it still has to follow the Constitution. Because the Constitution is king. It trumps all.
4. Is this person vs. local gov or is it fed gov vs. person? Is this a story about a person saying a local law that you can only sing religious songs on Sunday violates his 1st am right to free speech? (As in, the individual is bringing the law suit in federal court, attacking the local law.) Or is this the federal government passing a law making oral sex illegal? (As in, the federal government is making a law that affects individuals.)
If it’s a person saying their rights were violated, that’s all they need for it to be a possible federal issue (obviously they still have to prove their case). If it’s the federal government passing a law that people say is unconstitutional, then the federal government has to prove that they even had the power to pass that law in the first place, because if it isn’t enumerated in the Constitution, the power belongs to the people and the states.
These are two very different things and fiction tends to get them confused. The federal government always can protect your individual rights (we’re not getting into the politics of whether or not they actually do this, and yeah, it takes awhile and money to get it to the federal level :). It can not, however, pass any law it wants. It has to justify its actions by rooting them in the Constitution.
So basically, is the federal government the shield or the sword? Shield? It automatically has that power. It’s planted in the ground in front of you the individual. Sword? It has to base that swing in the body of the Constitution.
Now as for the practicalities of how this would play out in your story? No clue. These are just some big, general concepts that barely outline the structure of Con Law. But, I’m hoping it gave you an idea of what questions to ask when you’re doing research for a story.
Happy Writing 🙂