Constitutionality

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Constitutionality is the condition of acting in accordance with an applicable constitution;[1] the status of a law, a procedure, or an act's accordance with the laws or guidelines set forth in the applicable constitution. When one of these (laws, procedures, or acts) directly violates the constitution it is unconstitutional. All the rest are considered constitutional until challenged and declared otherwise.

Applicability[edit]

An act (or statute) enacted as law either by a national legislature or by the legislature of a subordinate level of government (such as a state or province) may be declared unconstitutional.

However, governments do not just create laws. Governments also enforce the laws set forth in the document defining the government—in the Constitution. In the United States, the failure to seat duly elected representatives of the people following a proper election, or the failure to provide for such elections would be unconstitutional even in the absence of any legislated laws whatsoever.

When the proper court determines that a legislative act (a law) conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is called judicial review. The portion of the law declared void is considered struck down, or the entire statute is considered struck from the statute books.

Depending on the type of legal system, a statute may be declared unconstitutional by any court, or only by special Constitutional courts with authority to rule on the validity of a statute. In some countries, the legislature may create any law for any purpose, and there is no provision for courts to declare a law unconstitutional. This can occur either because the country has no codified constitution that laws must conform to (e.g., the United Kingdom and New Zealand) or because the country does have a codified constitution but no court has the authority to strike down laws on the basis of it (e.g., the Netherlands and Switzerland).

In many jurisdictions the supreme court or constitutional court is the final legal arbiter that renders an opinion on whether a law or an action of a government official is constitutional. Most constitutions define the powers of government. Thus, national constitutions typically apply only to government actions. This means that only governments can violate the nation's constitution, but there are exceptions.

A constitutional violation is thus somewhat different from the breaking of a normal law, both in terms of seriousness and punishment. Declaring a law unconstitutional does not result in the punishment of those who passed it down.

The legal encyclopedia American Jurisprudence says the following in regard to constitutionality:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)

A law in violation of an existing statute can be described as unstatutable.[2]

Examples of unconstitutional actions[edit]

Some examples of unconstitutional actions can be:

  • A politician who abuses or acts outside of the powers of his constitutionally-established office
  • A legislature that tries to pass a law that contradicts the constitution without using the proper constitutional amendment process
  • Any person who acts on behalf of the government who tries to prevent an individual from exercising constitutionally protected individual rights (such as the right to vote or to practice religion)

Unconstitutional laws in the United States[edit]

Much debate often surrounds controversial laws enacted by state legislatures and the United States Congress regarding the laws' constitutionality. Some of the controversialists against particular acts in the 19th century proposed protecting the people by applying the Principles of '98.

There are different forms of constitutions. The United States Constitution is a "rigid constitution". Rigid constitutions cannot be modified in their express terms, except through such processes the constitution itself ordain.

References[edit]

See also[edit]