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Constitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When laws, procedures, or acts directly violate the constitution, they are unconstitutional. All others are considered constitutional until challenged and declared otherwise, typically by the courts using judicial review.
However, governments do not only create laws but also enforce the laws set forth in the document defining the government, which is the constitution. In the United States, the failure to seat duly-elected representatives of the people following a proper election and the failure to provide for such elections is unconstitutional even in the absence of any legislated laws.
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. That is called judicial review, and portion of the law declared void is considered struck down, or the entire statute is considered struck down from the statute books.[disputed ]
Depending on the type of legal system, a statute may be declared unconstitutional by any court or only by special constitutional courts with authority to rule on the validity of a statute.
In some countries, the legislature may create any law for any purpose, and there is no provision for courts to declare a law unconstitutional. That can occur either because the country has no codified constitution that laws must conform to like in the United Kingdom and New Zealand or because the constitution is codified, but no court has the authority to strike down laws on the basis of it like in the Netherlands and Switzerland.
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. Only governments can then violate the nation's constitution, but there are exceptions.
A constitutional violation is thus somewhat different from the breaking of a normal law in terms of seriousness and punishment. Declaring a law unconstitutional does not usually result in the punishment of those who passed it.
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)
A law in violation of an existing statute can be described as unstatutable.
A breach to the constitution could be minor or major. In the United Kingdom, much of the constitution is unwritten, which makes the term more ambiguous and cover an action that violates principles, procedures or rights that make it difficult to establish what is unconstitutional.
The case is clearer for the United States, which considers an act to be an infringement if it violates the spirit or the letter of the written constitution.
Here are some examples of unconstitutional actions:
Much debate often surrounds controversial laws enacted by state legislatures and the US Congress regarding constitutionality. Some of those who strongly opposed particular acts in the 19th century proposed protecting the people by applying the Principles of '98.
However, judicial review became the usual way to resolve US constitutional controversies. Few people there question that power's validity, and a leading legal expert stated that "it is as clear as such matters can be that the Framers of the Constitution specifically, if tacitly, expected that the federal courts would assume a power... to pass on the constitutionality of actions of the Congress and the President."
Judicial review also covers the evaluation of the constitutionality of the states' actions. It is even recognized that US federal judges are appointed for life to ensure their ability to engage in judicial review independently.
Influential examples of Supreme Court decisions that declared U.S. laws unconstitutional include Roe v. Wade (1973), which declared that prohibiting abortion is unconstitutional, and Brown v. Board of Education (1954), which found racial segregation in public schools to be unconstitutional.
There are different forms of constitutions.[further explanation needed] The US Constitution is a "rigid constitution" and so can be modified only as their express terms allow and as the constitution itself ordains.