· We have litigated hundreds of constitutional law cases at all stages of litigation from filing through trial, appeal, and writ of certiorari.

· We have litigated significant cases involving the First, Fourth, Fifth, Sixth, Seventh, Eighth and Tenth Amendments.

· Our principal attorney, Mr. Walston, teaches civil-rights and constitutional-law litigation to practicing attonreys.

· Our Principal Attorney, Mr. Walston, is a widely cited published commentator on civil-rights issues.

· We aggressively litigate for our clients, through trial, appeal, and writ if necessary, in order to get the best result possible.

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Attorney Representation in San Francisco, California since 1989

SAN FRANCISCO CONSTITUTIONAL LAWYER

Constitutional Law

We have litigated hundreds of constitutional law cases. We have handled cases of first impression involving issues under the First, Fourth, Fifth, Sixth, Eighth and Tenth Amendments. Our Principal Attorney, Mr. Walston, teaches civil-rights and constitutional-law litigation to practicing attorneys, and is a widely cited commentator on civil-rights issues. He has been published many times on constitutional-law issues; has participated in national television and radio debates on the subject, and has litigated significant constitutional cases such as the Ninth Circuit's published en banc decision in Gerber v. Hickman.

Constitutional Law is the most intellectually stimulating area of law any attorney can practice, and it is simply far too complicated and vast to be set forth in any website. A brief summary of the most significant constitutional principles may be found below.

The Constitution

The U.S. Constitution styles itself the "supreme law of the land." Courts have interpreted this phrase to mean that when laws (including state constitutions) that have been passed by state legislatures, or by the (national) U.S. Congress, are found to conflict with the federal constitution, these laws are ultra vires and have no effect. Decisions by the Supreme Court over the course of two centuries have repeatedly confirmed and strengthened the doctrine of Constitutional supremacy, or the supremacy clause.

The Constitution guarantees the legitimacy of the American state by invoking the American electorate. The people exercise authority through state actors both elected and appointed; some of these positions are provided for in the Constitution. State actors can change the fundamental law, if they wish, by amending the Constitution or, in the extreme, by drafting a new one.

Different kinds of public officials have varying levels of limitations on their power. Elected officials can only continue in office if they are reelected at periodic intervals; appointed officials serve, in general, at the pleasure of the person or authority that appointed them, and may be removed at any time. The exception to this practice is the lifetime appointment by the President of Justices of the Supreme Court and other federal judges; the justification for this exception is that once appointed for life, these judges are presumed capable of acting free of political obligations or influence.

Principles of government

Although the Constitution has been amended several times since it was first adopted, its basic principles remain the same now as in 1789.

There are three branches of the national government—executive, legislative, and judicial—and they are separate and distinct from one another. The powers given to each are in theory balanced and checked by the powers of the other two. Each branch ideally serves as a check on potential excesses of the others. This is known as "separation of powers."

The United States is federal in nature. Powers enumerated in the Constitution are given to the Federal Government, and all other, unenumerated, powers remain with the states or the people.

The Constitution, together with laws passed according to its provisions and treaties entered into by the president and approved by the Senate, stands above all other laws, executive acts, and regulations. Beginning with the case of Marbury v. Madison, the United States judiciary has engaged in judicial review. This means that the federal courts will examine duly enacted laws, and, if they are found to be unconstitutional, will overturn them. They also examine the acts of public officials—up to and including those of the president.

Since the enactment of the Fourteenth Amendment, all persons have been equally entitled to the law's protection. All states are equal and in principle none can officially receive special treatment from the federal government. Within the limits of the Constitution, each state must recognize and respect the laws of the others. State governments, like the federal government, must be republican in form, with final legitimacy resting with the people.

By means defined in the Fifth Article of the Constitution, Congress may propose amendments to the Constitution. Moreover, any two thirds of the states may themselves initiate a convention for proposing amendments. When ratified, all amendments are considered part of the Constitution.

Powers of the Constitution

Legislative power

Article One establishes the legislative branch of government, U.S. Congress, which includes the House of Representatives and the Senate. The Article establishes the manner of election and qualifications of members of each House. It also outlines legislative procedure and indicates the powers of the legislative branch. Finally, it establishes limits on federal and state legislative power.

Executive Power

Article Two describes the presidency (the executive branch): procedures for the selection of the president, qualifications for office, the oath to be affirmed, the powers and duties of the office, and procedures for selection. It also provides for the office of Vice President of the United States, and specifies that the Vice President succeeds to the presidency if the President is incapacitated or resigns. The article nominally makes the Vice President the presiding officer of the Senate, but in practice the Vice President only serves as such under limited circumstances. Article Two also provides for the impeachment and removal from office of civil officers (the President, Vice President, judges, and others). (See presidential system).
Judicial Power

Article Three describes the court system (the judicial branch), including the Supreme Court. The article requires that there be one court called the Supreme Court; Congress, at its discretion, can create lower courts, whose judgments and orders are reviewable by the Supreme Court. Article Three also requires trial by jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it, while imposing limits on that punishment.States' powers and limits.

Provisions for amendment

The authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation. However, they were also conscious that such change should not be easy, lest it permit ill-conceived and hastily passed amendments. Balancing this, they also wanted to ensure that an overly rigid requirement of unanimity would not block action desired by the vast majority of the population. Their solution was to devise a dual process by which the Constitution could be altered.

The first option must begin in Congress which, by a two-thirds vote (of a quorum) in each house, may initiate an amendment. Alternatively, the legislatures of two-thirds of the several states may ask Congress to call a national convention to discuss and draft amendments. To date, all amendments have been proposed by Congress; although state legislatures have on occasion requested the calling of a convention, no such request has yet received the concurrence required for such a convention.

In either case, amendments must have the approval of the legislatures or of smaller ratifying conventions within three-fourths of the states before becoming part of the Constitution. All amendments save one have been submitted to the state legislatures for ratification; only the 21st Amendment was ratified by individual conventions in the states.

Amendments

The Constitution has a total of 27 amendments. The first ten, collectively known as the Bill of Rights, were ratified simultaneously. The following seventeen were ratified separately.

The Bill of Rights (1–10)

The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were all adopted within a few years of the ratification of the Constitution, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of Rights became part of the Constitution.

The first amendment addresses the rights of freedom of speech and the press; the right of peaceful assembly; and the right of petition. It also addresses freedom of religion, both in terms of prohibiting the establishment of religion and protecting the right to free exercise of religion.

The second states, in its entirety, "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Current case law (including U.S. Supreme Court decisions) tends to assert that the "right of the people to keep and bear Arms" is an individual right but not an absolute right, and that the states and federal government may omit certain classes of people from the general-public sense of the "militia" for cause, and may limit the types of weapons to which the right applies. The courts have interpreted and reinterpreted the second amendment since it was ratified; the Supreme Court first visiting it in United States v. Cruikshank, in 1875.

The third prohibits the government from using private homes as quarters for soldiers without the consent of the owners. The fourth guards against unreasonable searches, arrests, and seizures of property.

The next four amendments deal with the system of justice. The fifth forbids trial for a major crime except after indictment by a grand jury; prohibits repeated trials for the same offense after an acquittal (except in certain very limited circumstances); forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself. The sixth guarantees a speedy public trial for criminal offenses. It requires trial by a jury (of peers), guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. The seventh assures trial by jury in civil cases involving anything valued at more than 20 U.S. dollars. The eighth forbids excessive bail or fines, and cruel and unusual punishment.

The last two of the first ten amendments contain very broad statements of constitutional authority. The ninth declares that the listing of individual rights is not meant to be comprehensive; that the people have other rights not specifically mentioned in the Constitution. The tenth provides that powers the Constitution does not delegate to the United States and does not prohibit the states from having are "reserved to the States respectively, or to the people."

Subsequent amendments (11–27)

• Eleventh Amendment (1795): Clarifies judicial power over foreign nationals, and limits ability of citizens to sue states in federal courts and under federal law
• Twelfth Amendment (1804): Changes the method of presidential elections so that members of the electoral college cast separate ballots for president and vice president.
• Thirteenth Amendment (1865): Abolishes slavery and grants Congress power to enforce abolition.
• Fourteenth Amendment (1868): Defines United States citizenship; prohibits states from abridging citizens' privileges or immunities and right to due process and the equal protection of the law; repeals the three-fifths compromise.
• Fifteenth Amendment (1870): Prohibits the federal government and the states from using a citizen's race, color, or previous status as a slave as a qualification for voting.
• Sixteenth Amendment (1913): Authorizes unapportioned federal taxes on income.
• Seventeenth Amendment (1913): Establishes direct election of senators.
• Eighteenth Amendment (1919): Prohibited the manufacturing, importing, and exporting of beverage alcohol. Repealed by the Twenty-First Amendment
• Nineteenth Amendment (1920): Prohibits the federal government and the states from using a citizen's sex as a qualification for voting.
• Twentieth Amendment (1933): Changes details of Congressional and presidential terms and of presidential succession.
• Twenty-first Amendment (1933): Repeals Eighteenth Amendment but permits states to retain prohibition and ban the importation of alcohol.
• Twenty-second Amendment (1951): Limits president to two terms.
• Twenty-third Amendment (1961): Grants presidential electors to the District of Columbia.
• Twenty-fourth Amendment (1964): Prohibits the federal government and the states from requiring the payment of a tax as a qualification for voting for federal officials.
• Twenty-fifth Amendment (1967): Changes details of presidential succession, provides for temporary removal of president, and provides for replacement of the vice president.
• Twenty-sixth Amendment (1971): Prohibits the federal government and the states from using an age greater than 18 as a qualification to vote.
• Twenty-seventh Amendment (1992): Limits congressional pay raises.

Unratified Amendments
Over 10,000 Constitutional amendments have been introduced in Congress since 1789; in a typical Congressional year in the last several decades, between 100 and 200 are offered. Most of these concepts never get out of Congressional committee, much less get proposed by the Congress for ratification. Of the thirty-three amendments that have been proposed by Congress, six have failed ratification by the required three-quarters of the state legislatures—and four of those six are still technically pending before state lawmakers. Starting with the 18th amendment, each proposed amendment (except for the 19th Amendment and for the still-pending Child Labor Amendment of 1924) has specified a deadline for passage.

Proposals for Amendments

There are currently only a few proposals for amendments which have entered mainstream political debate. These include the proposed Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag-Burning Amendment.

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THE WALSTON LEGAL GROUP

222 Columbus Avenue, Suite 408

San Francisco, California 94133

Tel: (415) 956-9200

Fax: (415) 956-9205

Email: info@walstonlaw.com

Our law offices are located at

222 Columbus Avenue, Suite 408

San Francisco, California 94133

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Attorney Representation in San Francisco, California since 1989