How the Law Really Works
Most Americans think of their rights as unshakable, carved in stone by the Constitution and guaranteed for life. In reality, much of what we call a “right” exists not in the Constitution’s text but in interpretation. The U.S. legal system is built on a combination of written law and evolving court decisions, which means many of our freedoms depend not on permanent guarantees but on how judges interpret them at any given moment.
To understand why that matters, it helps to look at how the American legal framework is actually built.
The Two Main Sources of Law: Statutes and Case Law
All American law comes from two main sources: statutory law and case law.
Statutory law is what most people think of as “the law.” These are written rules created by legislatures: Congress at the federal level, and state legislatures locally. Statutes are prescriptive, meaning they tell you what you can or cannot do. For example, traffic codes, tax laws, and criminal laws all come from statutes.
Case law, on the other hand, is created by judges. When courts interpret how a statute or constitutional provision applies to real-world situations, those interpretations become precedent. That precedent then guides how future courts rule in similar cases. This system, called stare decisis (Latin for “to stand by things decided”), ensures consistency, but it also means that rights built through case law can be changed when judicial interpretation changes.
When you hear about “landmark decisions,” you are hearing about case law: rulings such as Roe v. Wade on reproductive rights, Miranda v. Arizona on the right to remain silent, or Brown v. Board of Education on racial segregation. None of those rights or principles appear word-for-word in the Constitution. They were judicial conclusions drawn from broader ideas like liberty, equality, and due process.
What the courts give, the courts can also take away.
Textual Rights and Implied Rights
The Constitution contains textual rights, which are written explicitly, such as freedom of speech, the right to bear arms, and protection from unreasonable searches. These are direct and clear, although still open to interpretation about their limits.
Then there are implied rights, which are not written down but have been inferred by courts. These include:
The right to privacy, recognized in cases such as Griswold v. Connecticut and Roe v. Wade.
The right to marry regardless of race in Loving v. Virginia, or gender in Obergefell v. Hodges.
These rights exist because courts have interpreted the Constitution’s broader principles, such as “liberty” in the Fourteenth Amendment, to include them. The problem is that implied rights depend entirely on judicial interpretation. If the courts change their view, the right effectively disappears.
That is why the legal foundation for many modern freedoms is more fragile than most people realize.
Restrictive and Prescriptive Laws
In simple terms, restrictive laws say what government cannot do, while prescriptive laws say what it must do.
Most of the U.S. Constitution is restrictive. It tells government what it cannot do:
“Congress shall make no law…” (First Amendment)
“No person shall be deprived of life, liberty, or property without due process…” (Fifth and Fourteenth Amendments)
Very few parts of the Constitution are prescriptive, meaning they impose duties on the government to act. There is no federal requirement to provide education, healthcare, housing, or even legal representation in civil cases. Those protections exist, if at all, only because states or Congress pass specific laws to create them.
This difference explains why rights in the United States are often described as negative rights (freedom from interference) rather than positive rights (entitlements to something).
The Federal Constitution and State Constitutions
The U.S. Constitution is the supreme law of the land. It sets the minimum standards that all states must meet. States, however, can expand upon those rights through their own constitutions.
For example:
The California Constitution includes an explicit right to privacy, while the federal Constitution does not.
The Montana Constitution guarantees the right to a clean and healthful environment.
The Texas Constitution guarantees a system of public schools, but not equitable education.
A state can always provide more protection than the federal baseline, but not less. If the federal Constitution is reinterpreted narrowly, as it was in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, states can choose to keep those protections, but only within their own borders.
That is why your rights can change simply by crossing a state line.
Case Law and Precedent: The Foundation That Can Shift
In practice, most major constitutional questions about privacy, voting, equality, or criminal procedure are governed not by the literal text of the Constitution but by case law.
This creates flexibility, which can be good, because courts can adapt the Constitution to modern realities. However, it also creates vulnerability. Because precedent can be overturned, a single court decision can rewrite decades of established understanding.
For example:
Roe v. Wade established a constitutional right to abortion in 1973. Dobbs v. Jackson reversed it in 2022.
Miranda v. Arizona required police to inform suspects of their rights. Later courts narrowed when those warnings apply.
Shelby County v. Holder weakened key parts of the Voting Rights Act, removing federal oversight that had existed for nearly fifty years.
Each of these shifts shows how rights based on judicial interpretation are only as durable as the current Court’s philosophy. The Constitution did not change; the reading of it did.
Why It Matters
Most Americans think of the Constitution as a static document guaranteeing permanent freedoms. In truth, it is a flexible framework interpreted through precedent and practice. That flexibility is both its strength and its weakness.
When courts interpret broadly, rights expand. When they interpret narrowly, rights contract. And because many of the freedoms we rely on, such as privacy, bodily autonomy, and marriage equality, are implied rather than textual, they can vanish with a single ruling.
The same is true for statutory rights. Congress can repeal or amend any law, and unless that protection exists in the Constitution itself, it can disappear the moment political winds shift.
The Bottom Line
American law is a living system made of layers:
Textual rights, which are written into the Constitution.
Implied rights, which are read into it by courts.
Statutes, which come and go with legislation.
Precedent, which ties it all together until it changes.
Our rights are real, but they are not indestructible. They depend on ongoing interpretation, political will, and civic vigilance.
The Constitution gives us the skeleton of liberty. Case law and legislation give it form. Those parts can be reshaped, redefined, or stripped away at any time, not by revolution, but by reinterpretation.
Understanding that truth is the first step toward protecting the rights we too often take for granted.