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What is Constitutionality?

Constitutionality refers to the alignment of laws, decrees, and governmental actions with the principles and provisions of a country's constitution. It's the bedrock that ensures justice and the rule of law, safeguarding citizens' rights against arbitrary governance. Curious about how this impacts your daily life and the balance of power in government? Let's delve deeper into its significance.
Sherry Holetzky
Sherry Holetzky

Constitutionality, or the ability to pass constitutional muster, is the test for laws and statutes to ensure that they do not violate the Constitution. Each law is believed to be constitutional, unless or until it is struck down in whole or in part. However, it has long been held that an unconstitutional law is void from its inception, not only after being declared so, and that no person is bound by it and no court or other agency is bound to enforce it.

When constitutionality is called into question, a case will be made that the law has caused damage to a person or entity. If the likelihood of damage can be shown, the person or entity is said to have standing to sue in order to attempt to have the law struck down as being unconstitutional. Any law or statute may be deemed unconstitutional as applied, which means as applied to the specific case, although it may retain its constitutionality in other situations. On the other hand, there are times when only certain sections of a statute are ruled unconstitutional and the remainder is allowed to stand. A law may also be ruled unconstitutional on its face, or fatally flawed, which means it is unconstitutional in its entirety.

The US Bill of Rights includes the first ten amendments to the Constitution.
The US Bill of Rights includes the first ten amendments to the Constitution.

There are different methods, also called levels of scrutiny, by which constitutionality is determined. Strict scrutiny is the most rigorous assessment and applies to First Amendment rights, suspect classes (i.e., classes based on race, national origin and sometimes alienage), and other fundamental rights (e.g., the right to vote, travel, privacy). When one of these classes or rights is violated and is defended in court, the government has the burden of proving that the disputed act or law is necessary to achieve a compelling government purpose.

Laws cannot violation the Constituion.
Laws cannot violation the Constituion.

Few challenged laws can pass constitutional muster under a strict scrutiny analysis, generally because at least one of the tests cannot be met. Even where the government can show a compelling interest, or persuasive reason for the law or statute in question, the remedy prescribed is often deemed too intrusive or restrictive. Therefore, in cases where strict scrutiny is applied, the government generally loses.

Intermediate scrutiny is the next strongest level of scrutiny. It's actually closer in rigor to strict scrutiny than to the lowest level of scrutiny. Intermediate scrutiny has been applied to cases involving gender discrimination, illegitimacy, and public education through the 12th grade for illegal aliens. The burden of proof is generally on the government to show that the disputed act or statute is substantially related to an important government purpose.

Finally, minimum scrutiny, more commonly referred to as rational basis, is somewhat open ended in that it provides that to uphold constitutionality the government must only show a permissible governmental goal achieved by reasonable means. Here the burden is on the challenger, not the government, who must show that the disputed act or statute is not rationally related to a legitimate government purpose. This test is applied to a variety of issues including cases involving poverty, wealth, age, and the necessities of life. Because this test is rather deferential to the government, the government usually wins when rational basis is applied.

Frequently Asked Questions

What does "constitutionality" mean?

Constitutionality refers to the alignment or compliance of laws, decrees, and governmental actions with the constitution of a given country. A law or action is deemed constitutional if it adheres to the principles, rights, and provisions outlined in the nation's founding document. Conversely, if a law or action violates the constitution, it is considered unconstitutional and may be struck down by the judiciary, which serves as the guardian of the constitution.

How is the constitutionality of a law determined?

The constitutionality of a law is typically determined by the judiciary, particularly by a constitutional or supreme court. When a law is challenged, these courts review it in light of the constitution's text, principles, and the intent of its framers. The courts may also consider precedent, the historical context, and the law's impact on citizens' rights. If the law is found to be in conflict with the constitution, it can be invalidated or interpreted in a manner consistent with constitutional requirements.

What happens if a law is found unconstitutional?

If a law is found unconstitutional, it is nullified and no longer enforceable. The judiciary has the power to strike down the law in whole or in part, depending on the nature of the constitutional violation. This process is a key aspect of the system of checks and balances, ensuring that no branch of government exceeds its authority or infringes upon individual rights as protected by the constitution.

Can the constitutionality of executive actions be challenged?

Yes, the constitutionality of executive actions can be challenged in court. Individuals, organizations, or other branches of government may bring a lawsuit if they believe an executive action—such as a presidential decree or administrative regulation—violates the constitution. The judiciary then reviews the action in question, and if it is found unconstitutional, it can be overturned or limited in its application.

How does the concept of judicial review relate to constitutionality?

Judicial review is the process by which courts interpret the constitution and review the constitutionality of legislative and executive actions. It is a cornerstone of constitutional law, empowering the judiciary to ensure that all branches of government act within the constitutional framework. Judicial review maintains the rule of law by preventing arbitrary governance and protecting citizens' rights against potential abuses of power by the state.

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Discussion Comments


Just to add....

Suspect classes are determined by characteristics that are unalterable and have a history of intentionally unequal treatment.

Intermediate scrutiny is also referred to as rational basis with a bite.

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    • The US Bill of Rights includes the first ten amendments to the Constitution.
      By: TeX HeX
      The US Bill of Rights includes the first ten amendments to the Constitution.
    • Laws cannot violation the Constituion.
      By: James Steidl
      Laws cannot violation the Constituion.