How to Distinguish Constitutional and Nonconstitutional Law

American law comes from many sources, including regulatory agencies, state and federal legislatures, and courts. All these various types of law can be considered either constitutional or non-constitutional law. You can distinguish between constitutional and non-constitutional law by looking at how the law was created and how it can be changed or repealed, as well as evaluating the scope of the law itself.

Part 1

Part 1 of 3:

Analyzing the Law's Creation

1
Identify the body that made the law. One of the initial ways to distinguish among different types of law is to find out which body of government made the law. A constitution may have been created by a separate constitutional convention assembled solely for that purpose.
- Non-constitutional law, in contrast, is typically created by an ordinary government body. State statutes, for example, are created by state legislatures and signed into law by the state governor.
- Common law is a type of law created by courts when they interpret laws or the legal actions of parties. Common law can only be created when there are parties with a dispute they want the court to resolve – a requirement known as the "cases and controversies" requirement.
- Administrative law consists of regulations passed by executive agencies so they can enforce statutes passed by the state or federal legislature. Executive agencies have limited power to pass regulations so the purpose of a statute can be achieved.
- The essential thing to remember is that any law passed in the normal course of government is a non-constitutional law.
2
Consider the process by which the law was made. Constitutional law typically requires extraordinary procedures for passage, and may require unanimity or a super-majority. In contrast, non-constitutional law is created through a fairly standard process.^{[1]XResearch source}
- For example, the U.S. Constitution had to be ratified by at least nine of the then 13 states. Ratification was accomplished by a vote of either the state legislature or a specially called state constitutional convention.
- Some state constitutions were ratified with a direct vote of the citizens of that state. Others were created by a special constitutional convention made up of state leaders who were either elected or appointed for that purpose.
- The process by which non-constitutional law is created depends on the body creating it, but generally, it occurs through usual government processes.
3
Evaluate the purpose and intent of the law. Non-constitutional law typically is concerned with remedying very specific problems, while constitutional law addresses the foundation, establishment, and organization of the government itself.^{[2]XResearch source}
- Non-constitutional law occasionally organizes a part of the government – for example, if a new executive department is created. However, that typically isn't the purpose of the law.
- Rather, the law itself establishes standards for a particular sector and then creates an agency to execute that law through monitoring and regulations.
- Constitutional law lays out how other laws are passed, how representatives are elected, the length of representative terms, and other aspects of government.
- Constitutional law establishes the reasons for which legislatures can pass laws, and the types of laws they can make. These reasons can be considered limitations on government power, in that the government cannot pass a law unless it falls under one of the powers specifically given it by the constitution.
- Constitutional law also sets forth various rights that individuals in the country have against the government. These individual rights also can be viewed as limitations on the power of the government.
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Part 2

Part 2 of 3:

Evaluating the Scope of the Law

1
Place the law in the overall hierarchy. United States law differs in scope and power depending on the type of law it is and the body that created or passed it. Constitutional law is considered the supreme law of the land, while all other non-constitutional law falls elsewhere on the hierarchy.
- You may have federal constitutional law or state constitutional law. State constitutional law only governs within the borders of that state, while federal constitutional law limits government in all states and territories of the United States.
- Statutory law passed by the federal legislature applies to the entire country, but only within the scope of the constitutional power used by Congress to create that law.
- For example, if Congress passes a law under its power to regulate interstate commerce, that law only applies to activities that involve interstate commerce.
- This is why federal employment laws, for example, typically only apply to businesses that engage in interstate commerce or have more than a stated number of employees.
- Administrative law, created by executive agencies, has perhaps the most limited scope of all non-constitutional law. These regulations only apply to businesses or organizations operating within the industry regulated by the agency.
2
Understand how the law you're evaluating affects other laws. Since the Constitution is the supreme law of the land, constitutional law supersedes all other legislation passed by either federal or state legislatures.
- This can get confusing, because there are federal statutes that were passed to enforce various rights contained in the Bill of Rights to the Constitution, but these statutes themselves are not constitutional law.
- However, they do supersede state legislation that conflicts with them because federal law is controlling over state law when it deals with a national issue, such as interstate commerce.
- Similarly, the Supreme Court may issue an opinion striking down all or part of a state or federal statute because it violates the Constitution. This is an interpretation of constitutional law, and thus that opinion becomes part of the body of constitutional law as an interpretation of a particular constitutional clause or amendment.
- Executive agencies also may create regulations designed to enforce various aspects of the Constitution, but these regulations only apply to businesses in the industry regulated by that agency and don't affect any other legislation or regulations in any way.
- Generally, constitutional law is supreme to usual statutes and regulations, and if a statute or regulation conflicts with the constitution it is considered void.
3
Consider how the law is applied. Non-constitutional law often applies directly to individuals or businesses and their daily activities. Although constitutional law includes important rights and duties that you may enjoy throughout your daily life, its clauses apply primarily to the government itself, not to individuals.^{[3]XResearch source}
- The best way to make this distinction between constitutional and non-constitutional law is to think about the parties that are controlled or limited by the document you're evaluating. If the law applies directly to the citizens of a state or country – for example, criminal laws against suicide – it almost always is a non-constitutional law.
- Constitutional laws, in contrast, typically govern the things the government can do and limit the government's power over the people.
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Part 3

Part 3 of 3:

Understanding the Process of Changing the Law

1
Identify who can change the law. Constitutional law typically requires votes from several different government bodies for it to be changed. Most non-constitutional law, in contrast, can be routinely changed by the same body that passed it in the first place.^{[4]XResearch source}
- Particularly when you're dealing with administrative law created by executive agencies, there should be no question it is non-constitutional law because administrative officials can change the law routinely through the agency's established processes.
- Keep in mind that courts can effectively change laws by ruling portions of them unconstitutional. The court's opinion may become part of constitutional law since it interprets an aspect of the Constitution, but that doesn't change the character of the statute the court was called to interpret.
- A good way to distinguish constitutional and non-constitutional law – even if it is a bit backwards – is to determine if a court could void the law.
- Courts can void laws that are unconstitutional, but they also can strike down statutes if they violate public policy, or regulations if they don't achieve the purpose of the legislation or fall outside the authority given to the agency.
- However, courts cannot strike down provisions of the federal Constitution. State constitutions are another matter. For example, in Romer v. Evans^{[5]XResearch source}, the Supreme Court struck down an amendment to the Colorado State Constitution that violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
- State constitutions still are considered constitutional law, they just can't conflict with the federal Constitution.
2
Evaluate the process for altering or amending the law. The process of changing constitutional law typically is more complex and requires participation from many different sectors. Non-constitutional law, however, can be altered or amended by simply introducing a bill that receives the majority of the votes in the legislature.^{[6]XResearch source}^{[7]XResearch source}
- The federal Constitution, for example, may be proposed either by a two-thirds majority of both the House and the Senate or by a constitutional convention called by at least two-thirds of the states' legislatures.
- Once proposed, an amendment must be ratified by three-fourths of the states – typically by voting on it in the state legislature. This time-consuming process ensures that the Constitution remains relatively impervious to political trends and can't be changed on a whim.
- Many states only allow their state constitutions to be amended if the amendment receives a majority (or even two-thirds) vote of the state's citizens in a referendum.
3
Determine how or if the law can be repealed. Non-constitutional laws can be repealed if a majority of the legislators vote for a bill that acts to repeal previous legislation. However, it likely would take an act of war to repeal a constitution.^{[8]XResearch source}^{[9]XResearch source}
- Even if the requisite two-thirds of the states wanted to drastically alter the Constitution, it would require ratification from three-fourths of the states – meaning the approximately 33 states supporting the changes would have to get at least another 5 states on board.
- The Constitution itself provides no procedure for repealing it, which essentially means it would take civil war or violent overthrow of the government to dispense with the Constitution.
- Non-constitutional law, in contrast, can be relatively easily repealed if the political mood strikes, as may happen when one party takes control of the legislature from the other party.
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