Understanding Unconstitutional Laws: When Do They Break The Rules?

A law is deemed unconstitutional when it is in direct conflict with the constitution. Depending on the type of legal system, a statute may be declared unconstitutional by any court or only by special constitutional courts with the authority to rule on the validity of a statute. In some cases, a law may be deemed unconstitutional because the body that made the law had no power to do so. For example, county laws have been ruled unconstitutional when they try to impose a tax beyond land and entertainment taxes. National laws have been ruled unconstitutional for limiting human rights, such as freedom of expression and the right to a fair trial.

A law conflicting with the constitution

There are several examples of laws being declared unconstitutional. In some cases, it is because the body that created the law did not have the authority to do so. For instance, county laws have been ruled unconstitutional when they attempt to impose taxes beyond those assigned to counties, such as land and entertainment taxes. National laws have also been ruled unconstitutional when they limit human rights, such as freedom of expression and fair trial rights.

Additionally, laws have been declared unconstitutional due to a lack of public participation in their creation. This was the case with Kiambu's Finance Act, which was ruled unconstitutional twice. The declaration of unconstitutionality can also reflect a court decision or the opinion of an individual. For example, the Supreme Court may declare the mandatory death sentence unconstitutional, as in the case of the misuse of telecommunication devices to charge bloggers.

It is important to note that not all laws are created equal, and the process of declaring a law unconstitutional can vary depending on the country's legal mechanisms for challenging laws. In some countries, laws are presumed constitutional unless explicitly challenged and ruled upon by the appropriate judicial authority. This highlights the dynamic nature of constitutional law and the ongoing efforts to ensure laws align with the principles outlined in the constitution.

No power to make a law

Laws are deemed unconstitutional when they are not in accordance with the constitution. This can occur when the body making the law had no power to do so, as is the case with some county laws that overstep their authority. For example, county laws in certain jurisdictions have been ruled unconstitutional when they attempt to impose a tax beyond land and entertainment taxes. National laws have been deemed unconstitutional when they limit human rights, such as freedom of expression, the rights of arrested persons, and the right to a fair trial.

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. This determination is typically made by a proper court, which can vary depending on the legal system. In some cases, any court may declare a statute unconstitutional, while in other systems, only special constitutional courts have the authority to rule on the validity of a statute.

The process of declaring a law unconstitutional involves a court finding that a legislative act or law conflicts with the constitution. As a result, the court will declare the law void in whole or in part, meaning that it is no longer enforceable or valid. This can occur at the national or subordinate-level legislature, such as at the state or provincial level.

It is important to note that not all laws are created equal, and the process of declaring a law unconstitutional can vary depending on the legal system and the specific circumstances. In some cases, a court decision may be required, while in other cases, a statement of unconstitutionality may be made without a formal court ruling. Ultimately, the determination of whether a law is unconstitutional is a complex and nuanced process that requires a thorough understanding of the applicable constitution and legal framework.

Lack of public participation

In constitutional law, a law becomes unconstitutional when it is not in accordance with the applicable constitution. This can occur when there is a lack of public participation in the creation of the law, which has been the case for some county laws. For example, Kiambu's Finance Act was found to be unconstitutional twice due to a lack of public involvement in its formation.

Public participation is essential for the legitimacy and effectiveness of any law. It ensures that the law reflects the values, needs, and interests of the community it serves. When the public is involved in the law-making process, it can provide valuable input and insights that may otherwise be overlooked. This can include personal experiences, expertise, and diverse perspectives that contribute to a more informed and well-rounded law. Additionally, public participation fosters a sense of ownership and investment in the law, leading to greater compliance and a more democratic society.

The absence of public participation in law-making can have several negative implications. Firstly, it may result in laws that are out of touch with the realities and needs of the people they affect. This can lead to laws that are ineffective, impractical, or even detrimental to the community. Secondly, excluding the public from the law-making process can erode trust in the government and legal system. People may perceive the laws as illegitimate or unfair, particularly if they feel their voices and concerns have been ignored. This can lead to a breakdown in social cohesion and even civil disobedience.

Furthermore, a lack of public participation can indicate a failure of democratic principles. Democracy is founded on the idea of popular sovereignty, where the power to make laws rests with the people. When laws are made without public input, it undermines this fundamental principle and can lead to a concentration of power in the hands of a few. This can result in laws that favour special interests or privileged groups, exacerbating social and economic inequalities. Therefore, ensuring public participation in law-making is crucial for upholding democratic values and maintaining a just and equitable society.

In conclusion, a lack of public participation in law-making can lead to laws that are unconstitutional, as they may conflict with the values and principles enshrined in the constitution. Public involvement is essential for the legitimacy, effectiveness, and fairness of the law. It ensures that laws are responsive to the needs and concerns of the community and promotes a more democratic and just society.

Limiting human rights

National laws are frequently ruled unconstitutional because they limit human rights. For example, the SLAA sections in Kenya violated freedom of expression, the rights of arrested persons, and the right to a fair trial. When laws, procedures, or acts directly violate the constitution, they are deemed unconstitutional. This determination is made by a court, which can be any court or a special constitutional court, depending on the legal system.

Constitutionality refers to the status of a law, procedure, or act's accordance with the constitution. An act or statute enacted as a law by a national or subordinate-level legislature may be declared unconstitutional if it conflicts with the constitution. This can occur when the body making the law had no power to do so or when there was no public participation in the law-making process.

In the United States, for example, the Supreme Court has the authority to rule on the constitutionality of laws. If a law is found to be in violation of the Constitution, it is declared void in whole or in part. This means that the law is no longer valid and cannot be enforced.

While the declaration of unconstitutionality is often made by a court, there are also instances where someone feels that a law or action is against the Constitution without a court decision. This highlights the complex nature of constitutionality and the role of the courts in interpreting and upholding the principles enshrined in the Constitution.

It is important to note that not all countries have a mechanism for challenging laws as unconstitutional. In the absence of such a mechanism, all laws are considered constitutional unless they directly violate the constitution.

Court decisions

A law becomes unconstitutional when the proper court determines that it conflicts with the constitution. Depending on the type of legal system, a statute may be deemed unconstitutional by any court or only by special constitutional courts with the authority to rule on the validity of a statute.

In the United States, the Supreme Court has made several decisions on state laws being held unconstitutional. For example, in the case of Parish School Bd. v. Stewart (1970), a district court decision held that Louisiana's constitutional and statutory provisions limiting eligibility to vote in general obligation bond authorization elections were unconstitutional. Similarly, in Bower v. Vaughan (1970), a district court decision ruled Arizona's one-year residency requirement for treatment in a state hospital unconstitutional.

In addition to state laws, local laws can also be deemed unconstitutional by court decisions. For instance, in Wisconsin v. Constantineau (1971), a California loyalty oath was ruled unconstitutional, similar to the one condemned in Baggett v. Bullitt (1964).

Frequently asked questions