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Unconstitutional: Definition & Examples

Unconstitutional: Definition & Examples
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Lesson Transcript
Instructor: Mark Pearcy
'Constitutional' sounds like an easy definition - something that is allowable under the Constitution - but how do we know what is and isn't allowable? And when do we know if the definition should change? Through the federal court system, the Constitution built in a mechanism that allows us to change its meaning over time.

What Does Unconstitutional Mean?

Laws, despite their complexity, are often pretty easy to figure out. If the law says the speed limit is 55 miles per hour, then going over 55, even by one mile per hour, is a crime. Except, as we all know, there are degrees to any crime. If a police officer pulled you over and gave you a ticket for going only one mile per hour over the speed limit, you would probably be surprised and even a little outraged, even though you would recognize that technically, the police officer was right. Technically.

The concept of gray areas, or interpretations of the law that may leave room for doubt or flexibility, may seem comforting when we think about speed limits, but it's less so when we think about the rights and privileges we're guaranteed as Americans. When is speech actually free speech? When we say we have the right to bear arms, does that include all arms, like handguns? Or bazookas?

Fortunately, we have a system that includes a mechanism for settling such debates. The federal court system, created under Article III of the Constitution and headed by the Supreme Court, has one job and one only: to decide whether or not acts of government are allowable under the Constitution itself, or if they are unconstitutional.

How Does the System Work?

In Article III of the Constitution, the judicial branch is described in fairly skimpy fashion. In fact, the only requirement is for a Supreme Court to exist. It doesn't even say how many justices should be on it. There's also a bit about what jurisdiction it has. Specifically, the Constitution states that, 'all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority,' and then two specific crimes are named: impeachment and treason. That's about it.

The Constitution does say, however, that the judicial branch would include this Supreme Court 'and in such inferior Courts as the Congress may from time to time ordain and establish.' Congress did do that very thing, with the Judiciary Act of 1789, which created the modern federal court system, with 94 district courts and 13 courts of appeal.

A case that works its way through the federal courts can end up in front of the Supreme Court, though it's rare (out of thousands of cases per year, only a few dozen make it that far. The idea that the Supreme Court should rule on acts of government, including the other two branches of the federal government, wasn't a settled question until 1803 and the case of Marbury v. Madison, when the Supreme Court more or less declared itself the arbiter of constitutional issues. This process, of judging the constitutionality of laws and acts of government, is known as judicial review. Since the Marbury decision, the Founding Fathers' general expectation that the judiciary would be both passive and subservient to the other two branches has faded.

Issues of constitutionality often come up in a few specific areas: if there is a conflicting decision between different lower courts; if there is a constitutional interpretation by a high state court about federal law; or if there is a significant, often unresolved constitutional question. If the Supreme Court thinks a case merits their attention, they will issue a writ of certiorari, which is basically a green light to the main stage.

Examples of Unconstitutionality

The Court has often ruled that acts of government are violations of the Constitution. One of the most infamous was the 1819 case McCulloch v. Maryland, in which the Court ruled that a state had no right to tax a federal institution; in that case, a bank. The Court ruled this way because of a section of the Constitution called the necessary and proper clause, which allows Congress to make laws it needs to carry out its own powers. This is pretty much what the Court does - find the relevant section of the Constitution and determine if a given law is a violation of that document.

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