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Constitutionality is the condition of acting in accordance with an applicable constitution; 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, typically by courts through judicial review.
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 constitution is codified 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.
Examples of unconstitutional actions
An action that breaks any part of the constitution could range from minor to major. In the United Kingdom, this is more ambiguous because such breach covers those that violate principles, procedures or rights, making it difficult to establish what is unconstitutional from the constitutional. It is clearer in the case of the United States, which considers an act an infringement if it violates the spirit or the letter of the written constitution.
Some examples of unconstitutional actions can be:
- Actions by politician outside the powers of his constitutionally-established office;
- Actions on behalf of the government that prevent an individual from exercising constitutionally protected individual rights (such as the right to vote or to practice religion). See McDonald v. City of Chicago
- The suspension of habeas corpus, except in a state of emergency
Unconstitutional laws in the United States
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. Judicial review in the United States, however, became the usual way to resolve such controversies. Few people in the U.S. question the validity of this power and as a leading legal expert stated, "it is as clear as such matters can be that the Framers of the Constitution specifically, if tacitly, expected that the federal courts would assume a power... to pass on the constitutionality of actions of the Congress and the President." Judicial review also covers the evaluation of the constitutionality of the states' actions. It is even recognized that federal judges in the U.S. are elected for life to ensure their ability to engage in judicial review.
Examples of laws that were declared unconstitutional in the United States include Roe vs. Wade (1973), which declared the abortion laws in fifty U.S. states unconstitutional and the Brown v. Board of Education (1954), which nullified racial segregation in public schools.
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 ordains.
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- "Unstatutable | Definition, meaning & more | Collins Dictionary". CollinsDictionary.com. Archived from the original on 2016-09-21. Retrieved 2016-08-23.
- Wilson, Christopher (2003). Understanding A/S Level Government Politics. Manchester: Manchester University Press. p. 177. ISBN 0719060818.
- Wilson, p. 177.
- May, Christopher; Ides, Allan; Grossi, Simona (2007). Constitutional Law National Power and Federalism: Examples and Explanations. Austin: Wolters Kluwer. p. 18. ISBN 0735562113.
- May, Ides & Grossi, p. 18.
- Miller, Mark (2015). Judicial Politics in the United States. Philadelphia: Westview Press. ISBN 9780813346809.