Is there any legal precedent of a person claiming a situation or state of affairs violated their constitutional rights or was against the Constitution - that is, not that there was an unconstitutional law, but rather (perhaps), that a law protecting and enabling their constitutional rights was lacking, for example?

In other words, if citizens are guaranteed certain rights, if someone ends up in a state of affairs in which those rights are not upheld, but it’s not directly clear whose fault it is (a person, a specific law), can this, or has this ever, been taken to court, to change, or create, certain new laws?

  • 3
    I presume you mean the rights are not upheld here? If guaranteed rights are upheld, well, you have them.
    – Jon Custer
    Jan 5 at 19:00
  • 2
    Can you be more specific? There are plenty of situations where courts have ruled that government and private entities cannot enforce particular policies, at least in particular ways, because the policies violated the constitution. There are fewer situations where courts have required governments to take positive action but things like Miranda v Arizona effectively compelled police to inform suspects of certain rights when they were arrested. But courts cannot create laws and you have to identify an adverse party to bring a lawsuit. If you can't identify who did something, you can't sue them. Jan 5 at 19:08

3 Answers 3


Can a circumstance, as opposed to a law, be challenged as unconstitutional? How?


The confusion is understandable, because many introductory civics classes (and quite a few university level academic studies of how constitutional rights are enforced) focus on judicial review of statutes for constitutionality, and underemphasize lawsuits alleging unconstitutional conduct that does not seek to declare a law or regulation to be unconstitutional.

In fact, most constitutional litigation alleges that some action or course of events set in place by government officials violated their constitutional rights, rather than alleging that a law or regulation is unconstitutional. Lawsuits seeking to declare that a statute is unconstitutional are the exception and not the rule.

A typical constitutional challenge will state, for example:

  • The city violated the First Amendment by not allowing anyone from my faith to deliver an opening prayer at a city council meeting in the last twenty years;

  • The highway department violated my 5th Amendment right to compensation and due process when it bulldozed a road through my field without my permission and without obtaining a court order or paying me anything for the real property that it took from me;

  • My Fourth Amendment right to be free of unreasonable search and seizure without a warrant supported by probable cause was violated when the police officer broke down the front door to my apartment without obtaining a warrant, and then searched it, based, according to the police officer's affidavit, upon a tarot card reading conducted by the city clerk;

  • My constitutional rights were violated when I was sued in a Colorado court despite the fact that neither I nor the circumstances of the lawsuit have any significant connection to the state of Colorado;

  • The Colorado Secretary of State is violating the U.S. Constitution by allowing Donald Trump to run for President despite not being qualified to run for office pursuant to Section 3 of the 14th Amendment to the U.S. Constitution.

Sometimes these constitutional rights would be asserted in a lawsuit brought in court by the person whose rights were allegedly violated. At other times, these constitutional rights would be asserted as affirmative defenses in a civil lawsuit brought against this person or a in a criminal case where this person is a defendant. Not infrequently, there is more than one way that a constitutional legal issue can come before a court, and there is room for lawyers and parties to strategize about which approach is best.

None of these plain vanilla constitutional claims in litigation (which may or may not prevail on the merits) alleges that any particular federal or state or local statute is unconstitutional. They simply allege that the way government officials acted in the context of laws on the books that are not facially unconstitutional, violated someone's constitutional rights.

Put another way, these lawsuits are not fights over what the laws or the constitution say, but how the constitution and any other valid laws should be applied to the particular facts presented in a case.

Sometimes violations of someone's constitutional rights are also violations of someone's constitutionally valid statutory or common law rights (or, conversely, were mandated by unconstitutional statutes).

But just as often, this is not the case. Often, no statute squarely resolves the question of whether a constitutional right was violated in some particular situation and fact pattern. In these cases, the U.S. Constitution's text, and the case law interpreting it, are applied directly to the facts of the case by the judge, and in some cases, also by a grand jury or trial ("petite") jury.

N.B. The U.S. Does Not Have A Constitutional Court

A related issue should probably be clarified as well. In the U.S., every single judge in every single court from a lowly village justice of the peace, to a judge in a U.S. District Court, to intermediate appellate court judges, to state supreme court justices to the justices on the U.S. Supreme Court, has the authority and the obligation to address any issues of constitutional law that must be addressed to resolve a legal case.

The U.S. Supreme Court is not the sole authority on U.S. Constitutional law, although it has the definitive last say if it comes to that.

The U.S. Supreme Court's constitutional cases almost always come to it only after a trial court judge, and one or two layers of appellate court judges between the trial court judge and the U.S. Supreme Court, have already considered and ruled upon the constitutional issue, and the U.S. Supreme Court reviews that determination for its correctness.

Constitutional issues can come up in the tiny number of cases in the U.S. Supreme Court's original jurisdiction, which even then are de facto resolved in the first instance by a special master it appoints whose rulings the U.S. Supreme Court reviews, but, in practice, this very rarely happens. Probably a majority of original jurisdiction cases in the U.S. Supreme Court are boundary or water rights disputes between two or more U.S. states.

Likewise, most of the U.S. Supreme Court's docket involves interpreting federal statutes and regulations that have no constitutional law element to them.

For example, not too long ago, the U.S. Supreme Court ruled on the question of whether the federal rules of civil procedure entitle someone who wins a federal lawsuit to collect from the losing party, the costs of having documents used in the case translated into English, a question that presented no U.S. Constitutional issue.

This is in contrast to the usual pattern in countries with civil law legal systems, where any constitutional issues in a case have to be raised separately with a specialized constitutional court that handles only constitutional issues, often in a satellite proceeding to the main underlying case.


Yes, and they have been, based on Art. 1 GG.

Die Würde des Menschen ist unantastbar.

Human Dignity shall be unviolable.

That in turn includes a minimum standard for prisons, and that prisons have to be "Menschenwürdig" (~humane). As a result, inmates can sue about circumstances in prisons that violate human dignity. Among things that can violate human dignity, two are easily to find:


Laws don't protect your rights, your rights protect you from laws.

Laws will limit your rights to the extent that courts allow them to. Certainly a law could grant you the equivalent of a right (like the Americans with Disabilities Act or the Civil Rights Act), but those could disappear via new laws or the repeal of the current one (or the courts deciding they don't apply any more because reasons), versus the rather difficult process of changing the Constitution.

Let's be clear that rights are not absolute. Rights are balanced against each other and against the needs of the state. Also, your understanding of what your rights are may or may not match with how the courts have defined them. Good luck reading the Fourth Amendment and understanding what that actually means to you in the criminal justice system.

  • "in the criminal justice system": and when crossing the international border, often misunderstood to be a circumstance where the fourth amendment doesn't apply. In fact, it does, but it applies differently because the circumstances are different.
    – phoog
    Jan 6 at 13:45

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .