Understanding Our Constitution - Part 31 - Constitutionality

The United States Constitution is a “rigid constitution” which means that it can only be modified through processes that the constitution itself specifies.

Constitutionality is the condition of acting in accordance with a constitution. Laws, procedures, and acts must adhere to what is set forth in this constitution. All laws are considered constitutional until challenged and declared otherwise.

When the proper court determines that a legislative act or law conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is called judicial review.

Some examples of unconstitutional actions can be:

A politician who abuses or acts outside of the powers of his office.

A legislature that passes a law that contradicts 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.

In some instances, part of a statute may be unconstitutional. If the invalid part can be removed, the constitutional portion continues to stand. The portion that is declared void is said to be “struck down”. If the unconstitutional portion can not be removed, the whole statute fails. The entire statute is then struck from the statute books.

When a statute is found to be unconstitutional, all rights, contracts, or duties that depend on it are void. No one can be punished for refusing to obey the law once it is declared unconstitutional. But, while the law remains constitutional, a person disobeying it - is subject to punishment. When legislation is being judicially questioned, a stay of execution is usually given.

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. Jur. 2d, Sec.178)