We often hear talk of SCOTUS “declaring” a law unconstitutional or “striking down” a law. The problem is that neither of these phrases is a recognized legal concept. Instead, it is a political concept, used to criticize (or praise) the Court in the realm of public debate. Plus, constitutional decisions are made in the context of resolving a specific legal case or controversy. So just as important as the constitutional determination and declaration is the formal resolution of the case, the “It is so ordered” that comes at the end of every opinion.
This thought came to me after a question was posted to a listserv asking how many federal laws SCOTUS had “declared unconstitutional” this past term. The answer is not simple, because litigation context matters. Looking at the list of decided cases from October 2011, I come up with five. But only one conformed to the popular understanding of a law being declared unconstitutional–that we are left as if the law never was enacted and it cannot be used or enforced at all going forward. The rest require unpacking.
The obvious one is the Stolen Valor Act
Comments
In 1998 I was pulled over by police and issued a citation for licence suspended in the third degree shortly thereafter I left the state and resumed my life in Utah. While there my licence was reinstated due to the fact that the state decided it was unconstitutional to suspend my license to begin with now I am by K in my home state and I come to find out I still have a fine on the books for said violation it just didn’t seem right I have a hearing coming up to review the case do I still need to pay the fine?
Posted by: Jack French | May 13, 2016 5:13:41 PM
I generally agree with this post, but it’s not accurate to say that “declaring” is not a legal concept. I would say that strict legal terms, “declaring” a law unconstitutional means issuing a declaratory judgment that it is unconstitutional.
Posted by: AF | Jul 5, 2012 10:49:41 PM