Common Misconceptions about Constitutional Rights

The misinformation in public discourse about our most important rights – those protected by the Constitution – is apparent on discussion threads on every major issue.  The next time you see an incorrect statement about our constitutional rights, link to this blog post.   When people don’t know their constitutional rights, they cannot exercise them.


  1. The Constitution secures liberties against the government.
  • The Constitution lays out the structure of the federal government’s legislative branch (Article I), executive branch (Article II), and judicial branch (Article III). The Amendments to the Constitution articulate liberties we have against governmental action.  Actions by private individuals cannot be unconstitutional, unless those private parties have been empowered with a state-like function (like private prisons).  The exception to this state action requirement is the Thirteenth Amendment’s prohibition on involuntary servitude.
  • When the judiciary simply enforces private arrangements (such as confidentiality agreements or private hiring or firing decisions), those are not considered state action. Judicial enforcement of background private action thus cannot be unconstitutional, except in one unique situation – racially restrictive property covenants.
  • Federal and state law may grant private citizens rights against each other, anti-discrimination or medical privacy laws are an example, or may grant rights beyond what the Constitution requires. However, these laws may not conflict with the Constitution, the highest source of law.


  1. Hate speech is protected speech.
  • The First Amendment protects what other countries ban as “hate speech.” Viewpoint-based regulations on speech are generally considered unconstitutional, so that speech that might be considered hateful or bigoted generally cannot be restricted.  Derogatory speech is even entitled to trademark protection.
  • Bigoted speech can be regulated only when (1) it constitutes incitement, or it is intended to incite imminent lawless action, (2) when it is a true threat of violence, and (3) when the speech is so severe or pervasive that it creates a hostile environment in the workplace or educational setting. These are hard tests to meet, to ensure robust free speech protections.
  • Public universities are bound by the First Amendment, and thus they must allow speakers that some consider hateful on the same terms that these universities permit other speakers – because viewpoint-discrimination is unconstitutional.
  • The government cannot shut down offensive or controversial speakers to prevent expected violence or disorder caused by listeners. This phenomenon, called the heckler’s veto, cannot carry weight in official decisions or in charging extra permit fees.


  1. You have the right to refuse consent to search.
  • In most situations, the Fourth Amendment requires that government officials have probable cause before conducting a full search of your home, your car, or your person. The police need only reasonable suspicion to do a quick pat down to check you for a weapon.
  • When the police do not have the required level of suspicion, they may ask you if you consent to a search of your home, your car, or your person. You have the right to deny the police the ability to search.
  • The Supreme Court has held that police officers need not inform you of your right to refuse consent to search (unlike how you must be advised of your Fifth Amendment right to remain silent). Nevertheless, this right exists, and if the police are asking you for permission to search something, that may be a good indicator that they do not have the constitutionally required suspicion to search without consent.
  • If the police think they have probable cause, they will search you without consent, but you can challenge that search in court as lacking the required suspicion.


  1. Roe v. Wade is less controversial than you realize.
  • Roe v. Wade established a woman’s right to terminate a pregnancy before the fetus is viable. This case remains controversial, given the range of moral and political opinions on whether and when abortion constitutes murder.  Roe is also controversial because the right to abortion is not found in the Constitution, and the right on which Roe is based – substantive due process – is also not found in the Constitution.  Procedural due process is found in the Fifth and Fourteenth Amendments to the Constitution, but substantive due process has been considered an oxymoron by many.
  • A law violates substantive due process when the law is so irrational, or restricts rights so fundamental, that the law undermines our system of ordered liberty. Denying a woman the ability to control her body was deemed a violation of substantive due process.
  • Some judges do not believe in substantive due process rights, and critiques of substantive due process focus on Roe v. Wade. However, uncontroversial cases decided prior to Roe v. Wade also relied on substantive due process.  The right was firmly established in a case invalidating a law requiring all children to attend public schools.  A parent’s right to autonomy in controlling his or her child’s education was fundamental, and thus trumped the Oregon statute.
  • Although Justices should not import their own political views into the interpretation of the Constitution, many cases besides Roe v. Wade are based on rights not explicitly enumerated, including one-person-one-vote, and broad expansion of the sovereign immunity articulated in the Eleventh Amendment.







6 thoughts on “Common Misconceptions about Constitutional Rights”

  1. This is a clear, concise, and useful contribution to combatting deplorable ignorance, but the first bullet point in Paragraph 1 appears to overlook rights explicitly guaranteed in the Constitution’s original, pre-amended form: the preservation of habeas corpus and the prohibition on bills of attainder and ex post facto laws in Article 1, section 9; the right to a jury and the restrictions on attainder of treason in Article 3, section 3; and the guarantee of equal claim to state privileges and immunities in Art. IV, section 2.


  2. Also, a right doesn’t just mean that the government is prevented from complete prohibition, it also means
    -no prior restraint (Near v. Minnesota)
    -no permits (Hague v. CIO)
    -no fees (Grosjean v. American Press)
    -no chilling rights (Louisiana v. NAACP)
    -can’t deny benefits after one exercises their rights (Sherbert v. Verner)
    -no tests (Louisiana v. United States)
    -no waiting periods (Akron v. Akron)
    -rights apply to ex-felons (Packingham v. North Carolina)

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  3. “The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade and of acquiring, holding, and selling property is an essential part of his rights of liberty and property as guaranteed by the Fourteenth Amendment. The Court assents to this general proposition as embodying a sound principle of constitutional law.”
    -Powell v. Pennsylvania (1888)

    “As so construed, we think the statute is a violation of the Fourteenth Amendment of the federal Constitution in that it deprives the defendants of their liberty without due process of law. The statute which forbids such act does not become due process of law, because it is inconsistent with the provisions of the Constitution of the Union. The “liberty” mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties . . . ”
    -Allgeyer v. Louisiana (1897)

    These don’t sound like enumerated rights. Why wasn’t this the beginning of substantive due process? Or at the very least, didn’t Lochner’s “liberty of contract” predate Meyer and Pierce?


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