Gavin Howe
The concept of constitutionality refers to the extent to which laws, procedures, and acts adhere to the provisions outlined in a country's constitution. While governments are responsible for creating and enforcing laws, it is the role of the judiciary, particularly the supreme court or constitutional court, to determine whether these laws are constitutional. When a law is deemed to conflict with the constitution, it is declared void in whole or in part, as seen in cases like Terral v. Burke Constr. Co. and Lemke v. Farmers Grain Co. This raises the question: can a constitutional law be used unconstitutionally?
Characteristics of Unconstitutional Laws
| Characteristics | Values |
|---|---|
| Conflict with the constitution | A law that conflicts with the constitution is deemed unconstitutional. |
| Violation of due process | Depriving an entity of property without due process, as in the case of a New York law regarding public utilities. |
| Invalid taking of property | Laws that result in the invalid taking of property without compensation are unconstitutional, as seen in the Oklahoma Indian Land Consolidation Act. |
| Impairment of interstate commerce | The Maryland oyster inspection tax was found to impose an unconstitutional burden on interstate commerce. |
| Violation of the Export Clause | A federal tax on insurance premiums paid to foreign insurers violated the Export Clause. |
| Violation of the Establishment Clause | The Higher Education Facilities Act of 1963 violated the Establishment Clause by indirectly contributing to religion through the removal of restrictions on federally funded facilities. |
| Infringement on the right to travel interstate | The District of Columbia's welfare assistance eligibility requirements were deemed unconstitutional as they impermissibly classified individuals based on their right to travel interstate. |
| Unconstitutional conditions | An Oklahoma law prohibiting foreign corporations from invoking diversity of citizenship jurisdiction imposed an unconstitutional condition. |
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What You'll Learn
State laws vs federal laws
Federal laws apply to everyone in the United States, while state laws apply to people who live or work in a particular state, commonwealth, or territory. The U.S. Constitution creates a federal system of government, in which power is shared between the federal and state governments. Both the federal government and each of the state governments have their own court systems.
The federal government's powers are listed in the U.S. Constitution at Article I, Section 8. These include immigration, bankruptcy, the postal service, intellectual property, and the military. Federal laws control topics such as federal anti-discrimination and civil rights laws that protect against racial, age, gender, and disability discrimination.
State laws, on the other hand, cover subjects that are generally matters of state and not federal law, such as family law (divorce, child custody, and guardianships). Each state has its own set of statutes and courts that handle cases specific to that state.
In some cases, both state and federal laws apply. This usually occurs when Congress spends money to create programs for the general welfare. When federal funds are offered to a state, some element of federal law is typically involved.
When there is a conflict between state and federal laws, the Supremacy Clause of the U.S. Constitution (Article VI) states that federal laws have superiority. This clause ensures that laws enacted in furtherance of the Constitution are the "supreme law of the land."
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Supreme Court decisions
The US Supreme Court has held several Acts of Congress to be unconstitutional in whole or in part.
In United States v. Jackson (1968), a provision of the Lindberg Kidnapping Act that imposed the death penalty only if recommended by the jury was held to be unconstitutional because it penalised the assertion of a defendant's Sixth Amendment right to a jury trial.
In Chief of Capitol Police v. Jeanette Rankin Brigade (1972), a statute prohibiting parades or assemblages on US Capitol grounds was held to be invalid under the First and Fifth Amendments.
In City of Boerne v. Flores (1997), the Supreme Court held that interim provisions of the Brady Handgun Violence Prevention Act, requiring state and local law enforcement officers to conduct background checks on prospective handgun purchasers, were inconsistent with the Constitution's allocation of power between federal and state governments.
In The Justices v. Murray (1870), the Supreme Court held that a provision allowing for the removal of a judgment in a state court and a retrial in a US circuit court was "not in pursuance of the Constitution, and is void" under the Seventh Amendment.
In United States v. Moreland (1922), a provision giving the Juvenile Court of the District of Columbia concurrent jurisdiction over desertion cases was held invalid under the Fifth Amendment, which guarantees the right to presentment by a grand jury in cases of infamous crimes.
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Legislative acts
In constitutional law, an act is considered unconstitutional when it directly violates the constitution. When a legislative act or law is found to conflict with the constitution, it is deemed unconstitutional and declared null and void in whole or in part by the proper court. This can occur when a statute enacted as law by a national or subordinate legislature, such as a state legislature, contravenes the constitution.
A notable example of a legislative act being ruled unconstitutional was the case of Terral v. Burke Constr. Co., 257 U.S. 529 (1922). In this case, the Supreme Court held that an Arkansas law revoking the license of a foreign corporation to conduct business in the state if it resorted to federal courts within the state was deemed to impose an unconstitutional condition. This ruling exemplified the court's role in interpreting and safeguarding the constitution by striking down state laws that contravene constitutional principles.
Another instance where a legislative act was found to be unconstitutional was in the context of taxation laws. In Farmers Bank v. Minnesota, 232 U.S. 516 (1914), the Minnesota tax on bonds issued by a municipality of the Oklahoma Territory and held by Minnesota corporations was declared void. The court ruled that the tax was unconstitutional as it was considered a tax on a federal instrumentality, infringing on the constitution.
Furthermore, a New York law that imposed specific service requirements on public utilities, resulting in the need to rebuild their entire plant at a cost with no return under the fixed rates, was deemed unconstitutional. This law effectively deprived the utility of its property without due process, conflicting with constitutional protections.
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Jurisdiction
In federations like the United States, jurisdiction is applied at multiple levels, including local, state, and federal. It is influenced by international law, conflict of laws, constitutional law, and the powers of the executive and legislative branches of government. The concept of jurisdiction is crucial in determining which court system should preside over a given case and which law enforcement agency can get involved. This is referred to as "jurisdiction to determine jurisdiction".
State courts typically have general jurisdiction, allowing them to hear any controversy that is not prohibited by state law or allocated to federal courts of exclusive jurisdiction. Federal courts, on the other hand, have limited jurisdiction, as they can only hear cases that fall within the scope defined by the Constitution and Congressional statutes. For example, a state court in Mississippi may require statutory permission from the Mississippi legislature to hear certain types of cases.
The determination of jurisdiction can depend on various factors, such as the location of the crime, the individuals involved, and the nature of the subject matter. For instance, cases involving juveniles are typically handled in juvenile court, while probate court handles cases related to estates left by deceased individuals. Territorial jurisdiction is another important aspect, as it grants courts the power to bind parties to an action and determines the scope of federal and state court power.
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Constitutional courts
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether challenged laws are unconstitutional—that is, whether they conflict with constitutionally established rules, rights, and freedoms. The jurisdiction and procedural rules of constitutional tribunals vary from country to country. Some countries have separate constitutional courts, while others delegate constitutional authority to their ordinary court system, with the final decision-making power resting in the supreme ordinary court.
The First Austrian Republic established the first dedicated constitutional court in 1919—the Constitutional Court of Austria. However, it existed in name only until 10 October 1920, when the country's new constitution came into effect, and the court gained the power to review the laws of Austria's federal states. The 1920 Constitution of Czechoslovakia was the first to provide for a dedicated court for judicial review of parliamentary laws, and its organisation and competences, along with Austria's, were influenced by constitutional theories of Hans Kelsen. This idea of a separate special constitutional court that only heard cases concerning the constitutionality of the national legislature's acts became known as the Austrian System, and it was subsequently adopted by many other countries.
The Constitutional Court of South Africa, for example, is the highest court for cases that raise constitutional questions. It has the discretion to hear appeals from the High Court or Court of Appeal and may accept a direct application to sit as a first instance court in "exceptional circumstances". In contrast, the Constitutional Court of Bulgaria does not hear cases brought by parties but reviews the constitutionality of existing laws and executive decrees. The Constitutional Court of Russia's federal subjects were disestablished by the 2020 amendments to the Constitution of Russia, though constitutional courts remained in force in 12 out of 22 republics.
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Frequently asked questions
In constitutional law, constitutionality refers to the status of a law, procedure, or act's accordance with the laws set forth in the applicable constitution. When laws, procedures, or acts directly violate the constitution, they are deemed unconstitutional.
The 1910 Maryland oyster inspection tax, which was levied on oysters coming from other states, was deemed unconstitutional as it imposed a burden on interstate commerce.
The process can vary depending on the legal system. In some countries, any court can declare a statute unconstitutional, while in others, only special constitutional courts have the authority to do so. In many jurisdictions, the supreme court or constitutional court has the final say on whether a law or government action is constitutional.
Yes, a law can be declared unconstitutional by a court even after it has been enacted. This typically occurs when a court determines that the law conflicts with the constitution. The court will then declare the law void in whole or in part.
