Gavin Howe
The constitution is the supreme law of the land in a country, and any law that goes against it is deemed unconstitutional and void. An unconstitutional law can become constitutional through various means. In some countries, like the United Kingdom and New Zealand, there is no codified constitution that laws must conform to. In other countries, like the Netherlands and Switzerland, the constitution is codified, but no court has the authority to strike down laws based on it. Additionally, in federal systems, state or local laws may be preempted by federal law and deemed void if they conflict with a federal statute, treaty, or the Supremacy Clause. This paper will explore the various ways in which an unconstitutional law can become constitutional, examining specific cases and the mechanisms employed to rectify the conflict between laws and the constitution.
| Characteristics | Values |
|---|---|
| Legal system type | Some countries have a codified constitution that laws must conform to, while others like the UK and New Zealand do not |
| Court authority | Some countries allow any court to declare a statute unconstitutional, while others only allow special constitutional courts to do so |
| Legislative power | Some countries allow the legislature to create any law for any purpose, with no provision for courts to declare it unconstitutional |
| Citizen involvement | In some countries, citizens can void federal legislation by petitioning for a direct vote |
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What You'll Learn
Court rulings
One notable example is the case of Marbury v. Madison, which marked the beginning of the Supreme Court's power to declare laws unconstitutional through a process known as judicial review. This case established the principle that the Court has the final say in interpreting the Constitution, and its decisions can effectively change the law of the land.
Another example is the case of Plessy v. Ferguson, which demonstrated how the Supreme Court's rulings can uphold or strike down laws based on their interpretation of the Constitution. In this case, the Court's ruling essentially legalized the "separate but equal" doctrine, which allowed for racial segregation as long as supposedly equal accommodations were provided for people of different races. This ruling was later overturned by the Court in Brown v. Board of Education, highlighting how the Court's interpretations can evolve over time.
In addition to the Supreme Court, lower courts at the state and local levels also play a crucial role in determining the constitutionality of laws. For instance, in Ralls County Court v. United States (1881), a Missouri law that impaired the obligation of contract was deemed unconstitutional. Similarly, in City of Parkersburg v. Brown (1882), a West Virginia law authorizing public funds for private purposes was voided due to a violation of due process.
While the Supreme Court holds significant power, there have been discussions and concerns about its accountability and the potential for abuse of power. Some have suggested that impeachment is a remedy, while others have proposed establishing a new Supreme Court or amending the Constitution to address any unconstitutional rulings.
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Amendments to the constitution
The United States Constitution has a two-step process for amendments, outlined in Article Five, which requires amendments to be properly proposed and ratified before becoming operative. This process is designed to balance the need for change with stability. Amendments can be proposed and sent to the states for ratification by the US Congress if a two-thirds majority in both the Senate and House of Representatives agree, or by a national convention called by Congress on the application of two-thirds of state legislatures.
To become part of the Constitution, an amendment must be ratified by three-fourths of the states, either through their legislatures or state ratifying conventions. This process has been used 27 times to amend the Constitution, with the first ten amendments, known as the Bill of Rights, being ratified simultaneously on December 15, 1791.
The Reconstruction Amendments (the 13th, 14th, and 15th Amendments) and the Twenty-first Amendment, which repealed the Eighteenth Amendment and ended prohibition, are notable examples of amendments that have shaped the nation. The Twenty-first Amendment is the only one to have been ratified through a state ratifying convention.
While thousands of proposals have been introduced in Congress since 1789, it is challenging to amend the Constitution. Many proposals fail to make it out of congressional committees, and only a small number have received a full vote in the House or Senate. Six amendments have been adopted by Congress but have not been ratified by enough states, and four of those are still pending.
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Conflict with federal law
An unconstitutional law can become constitutional if it is not in conflict with federal law. State or local laws that are deemed unconstitutional are void if they conflict with a federal statute or treaty, and through the operation of the Supremacy Clause.
For example, a Maryland law requiring an operator's license for drivers of motor trucks was deemed unconstitutional as it conflicted with federal law when applied to a Postal Department employee operating a federal mail truck. Similarly, a Pennsylvania law prohibiting the manufacture and sale of oleomargarine was deemed invalid as it prohibited interstate importation and resale, conflicting with federal law.
In some countries, like the United Kingdom and New Zealand, there is no provision for courts to declare a law unconstitutional as there is no codified constitution that laws must conform to. In contrast, countries like the Netherlands and Switzerland have a codified constitution, but no court has the authority to strike down laws based on it.
In the United States, the Supreme Court plays a crucial role in determining the constitutionality of laws. The Court's decisions can hold state or local laws unconstitutional, preempted by federal law, or in conflict with constitutional provisions. For instance, the Georgia Tax Equalization Act was held to deny due process as it authorized an increase in property valuation without notice, hearing, or a proper remedy of arbitration, thus conflicting with constitutional rights.
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Country-specific legal systems
The process for determining the constitutionality of a law and the mechanisms through which an unconstitutional law can become constitutional vary depending on the country's legal system. Here is an overview of how this process works in several specific countries:
United States
In the United States, the Supreme Court plays a crucial role in determining the constitutionality of laws. There are three key scenarios where a law can be deemed unconstitutional:
- State Laws: The Supreme Court can hold state constitutional provisions or statutes as unconstitutional if they violate the federal Constitution.
- Local Laws: The Court can also deem local laws unconstitutional, either due to conflict with the federal Constitution or preemption by federal law.
- Federal Preemption: In some cases, state or local laws are struck down not because they violate the Constitution but because they conflict with federal statutes, treaties, or the Supremacy Clause.
United Kingdom and New Zealand
Unlike some other countries, the United Kingdom and New Zealand do not have a codified constitution that laws must conform to. This means that there is no process for declaring a law unconstitutional based on its contradiction of a written constitution.
Netherlands and Switzerland
While the Netherlands and Switzerland have codified constitutions, they differ from other systems in that no court possesses the authority to strike down laws based on their constitutionality. In Switzerland, however, there is a unique mechanism for addressing unconstitutional laws. Swiss voters can, by plebiscite, void federal legislation by petitioning for a direct vote of the citizenry on whether the law should be upheld or not.
Other Jurisdictions
In many other jurisdictions, including those with federal systems, the final authority on constitutional matters typically rests with a supreme court or a dedicated constitutional court. These courts have the power to interpret the constitution and strike down laws that conflict with it.
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Legislative loopholes
In constitutional law, an act or statute is deemed constitutional if it acts in accordance with the applicable constitution. When laws, procedures, or acts directly violate the constitution, they are deemed unconstitutional.
In the first instance, the absence of a codified constitution means that there is no single document or framework that laws must adhere to. This provides the legislature with significant flexibility in crafting laws without the constraint of a written constitution. However, it's important to note that even in these cases, there may be other mechanisms or principles that guide law-making and provide checks and balances to legislative power.
In the second scenario, where a country has a codified constitution but lacks a judicial mechanism to strike down laws, other remedies may exist. For example, in Switzerland, voters can void federal legislation by petitioning for a direct vote of the citizenry to decide whether the law should be upheld or not. This process, known as a plebiscite, empowers citizens to have a direct say in determining the validity of laws and serves as a check on legislative power.
It's worth noting that in many jurisdictions, the supreme court or constitutional court typically serves as the final arbiter of whether a law or government action aligns with the constitution. This judicial review process helps maintain the integrity of the constitutional framework and protects against the enactment of laws that contravene constitutional principles.
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Frequently asked questions
An unconstitutional law is a law that directly violates the constitution.
An unconstitutional law can be changed to become constitutional by amending the law so that it adheres to the guidelines set out by the constitution.
If a law is found to be unconstitutional, it is typically declared void in whole or in part by a court.
Depending on the legal system, a law may be declared unconstitutional by any court or only by special constitutional courts with the authority to rule on the validity of a statute.
