The American concept of unconstitutionality was born before the Constitution was adopted. The stamp act congress of 1765, for example, declared that acts of Parliament imposing taxation without representation were unconstitutional and need not be obeyed. Then as now, of course, the British constitution was an unwritten collection of customs and usages, only partly reflected in statutes and common law principles. Since the adoption of the earliest state constitutions, however, the statement that a governmental action is unconstitutional has been taken as an assertion that the action violates a written constitution. In common speech, "unconstitutional" normally refers to an action's invalidity under the United States Constitution, but in law the term also refers to invalidity under a state constitution. Legislation is not the only form of governmental action that may be unconstitutional. When police officers conduct unreasonable searches and seizures, for example, they act unconstitutionally. Similarly, a state court acts unconstitutionally when it enforces a racially restrictive covenant.
An assertion of unconstitutionality can be made by anyone: a citizen making a complaint, a newspaper editorial writer, a lawyer arguing a case. The assertion may take on a more authoritative character when it is made by a public officer acting in a governmental capacity. Thus, the President might veto a bill passed by Congress on the ground that it is unconstitutional. (See civilrightsactof 1866; jackson ' s veto of the bank bill.) Or, the President might refuse to enforce an act of Congress on similar grounds. Such a presidential refusal led the House of Representatives to adopt articles of impeachment against andrew johnson, thus registering its view that Johnson's conduct was itself unconstitutional. An executive officer may decline to enforce a law for the purpose of allowing others to frame a test case, thus allowing the courts to rule on the law's validity. board of education v. allen (1968) resulted from one such refusal.
The official in Allen thought it important to get a judicial ruling on the constitutionality of the law in question. In fact, Americans have become accustomed to identifying the idea of unconstitutionality with a judicial declaration of unconstitutionality—and, in particular, with such a declaration by the Supreme Court. A lawyer, asked by a client whether a law is or is not constitutional, ordinarily will respond with a prediction of what the courts will hold.
From marbury v. madison (1803) forward, American courts have assumed that they have the power to disregard a statute that violates a constitutional norm. When a court holds a statute unconstitutional it refuses to give effect to the law in the case before it. Indeed, the Marbury opinion grounded the principle of judicial review in the need for a court to decide the case before it according to law, including the Constitution as the supreme law. Federal courts are not permitted to give advisory opinions on the law but make their constitutional rulings only in the context of concrete cases and controversies. Yet there is a sense in which any opinion is, in part, advisory. The statement of a reason for decision requires a court to move from the particulars of the case before it to the more abstract level of a rule or principle which can be applied later as a precedent in deciding another appropriate case. Occasionally, particularly in the area of the freedoms of speech and of the press, a court may hold a law invalid on its face. But even if the court merely says it is holding the law "invalid as applied," the ruling becomes a precedent for other applications to similar facts.
In a statement now famous for its inaccuracy, the Supreme Court said in Norton v. Shelby County (1886) that an unconstitutional law "is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." The statement is misleading in two respects. First, courts are no better than anyone else at undoing the past. A great many actions may be taken on the basis of a statute in the time between its enactment and its judicial invalidation. Justice often requires that those actions be given effect: a corporation organized under an invalid statute will be bound under its contracts; an official who enforces a law in good faith before the law is held invalid will not be liable in damages for the action. In Lemon v. Kurtzman II (1973), the Supreme Court allowed Pennsylvania to reimburse church schools for educational services performed under a statute before the Court had held the law invalid in lemon v. kurtzman i (1971).
Second, the Norton statement is misleading in the context of an overruling of a previous decision that has held a statute invalid. In adkins v. children ' shospital (1923) the Supreme Court had held the district of columbia minimum wage law unconstitutional, but in west coast hotel co. v. parrish (1937), the Court overruled Adkins. Was it then necessary for Congress to reenact the law for it to be effective? The attorney general issued an opinion answering this question negatively, and no one now challenges that opinion's soundness.
Determining whether a court has actually held a law unconstitutional may prove more difficult than identifying the court's holding on the underlying constitutional law. In dealing with a federal statute, for example, the Supreme Court may make clear its view of the Constitution's command, but it may not make clear whether it has held the statute invalid or construed the statute narrowly to avoid holding it unconstitutional. Such an ambiguity still bemuses collectors of antique trivia when they contemplate hodgson v. bowerbank (1809).
Ultimately, the notion of unconstitutionality refers not so much to a fact—or even an opinion, judicial or otherwise—as to a decisional process. In that process courts play the most prominent role, but now and then they yield the center of the stage to other actors.
Kenneth L. Karst
Bickel, Alexander M. 1962 The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Bobbs-Merrill.
Field, Oliver P. 1935 The Effect of an Unconstitutional Statute. Minneapolis: University of Minnesota Press.