Constitutionality
From Free net encyclopedia
Constitutionality is the status of a law, procedure, or act being in accordance with the laws or guidelines contained in a constitution.
When something is unconstitutional it is illegal by being a direct violation of a constitution; it is constitutional when it is in accordance with a constitution.
An act of the legislature of a government (a statute), which was enacted as a law by the council of a city, county, the legislature of a state or province, or by the national legislature of that country, is unconstitutional when the act's provisions conflict with a constitution or some other law having higher standing than the act in question. When a court decides that the act in question conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. The portion of the law that is declared void is considered to be struck down, as the statute is considered to be struck from the statute books, as a law that is unconstitutional has no effect.
Depending on the type of legal system, a statute may be declared unconstitutional by any court or only by special Constitutional courts who have the authority to rule on the validity of a statute.
In some countries, especially ones not having a formal written constitution, the legislature may create any law for any purpose and there is no provision for a law to be declared unconstitutional.
A constitutional violation is thus somewhat different from the breaking of a normal law, both in terms of seriousness and punishment. Laws can be declared unconstitutional, though this causes no punishment for those who passed the laws. In many states the supreme court or constitutional court is the final legal arbiter that renders an opinion on whether a law or action is constitutional.
Some examples of unconstitutional actions can be:
- A politician who abuses the powers of his constitutionally-established office.
- A legislature that tries to pass a law that would contradict the constitution, without first going through the proper constitutional amendment process.
- Any person acting on behalf of the government who tries to prevent an individual from exercising individual rights which the constitution protects (such as the right to vote or to practice religion).
Most constitutions define the powers of governments. Thus, national constitutions typically apply only to government actions. This means that only governments can violate the nation's constitution, but there are exceptions.
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)
See also
External links
- Do you have a right to disobey unconstitutional laws? (American jurisprudence)