Constitutionality - Applicability

Applicability

An act (or statute) enacted as law either by a national legislature or by the legislature of a subordinate level of government (such as a state or province) may be declared unconstitutional. However, governments do not just create laws. Governments also enforce the laws set forth in the document defining the government—in the Constitution. In the United States, the failure to seat duly elected representatives of the people following a proper election, or the failure to provide for such elections would be unconstitutional even in the absence of any legislated laws whatsoever. When the proper court determines that a legislative act (a law) conflicts with the constitution, it finds that law unconstitutional and declares it void in whole or in part. This is called judicial review. The portion of the law that is declared void is considered to be struck down, or the entire statute is considered to be struck from the statute books. Depending on the type of legal system, a statute may be declared unconstitutional by any court or only by special Constitutional courts which have the authority to rule on the validity of a statute. In some countries, 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. In many jurisdictions the supreme court or constitutional court is the final legal arbiter that renders an opinion on whether a law or an action of a government official is constitutional. Most constitutions define the powers of government. Thus, national constitutions typically apply only to government actions. This means that only governments can violate the nation's constitution, but there are exceptions.

A constitutional violation is thus somewhat different from the breaking of a normal law, both in terms of seriousness and punishment. Declaring a law unconstitutional does not result in the punishment of those who passed it down.

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)