T Nation

Courts and Unconstitutional Laws?


I am wondering, do lower courts in the US have the power to strike down unconstitutional laws, or is this power reserved only for the Supreme Court? Also, how does this process work?


In the middle of learning this (which reminds me I should stop procrastinating and go read for con law). I believe a lower federal court can strike down a law as unconstitutional if a case comes before it relating to that law. State courts can strike down laws that violate their state's constitution, but I don't believe the U.S. constitution. The area governing this is Article 3 and the case that established such judicial review was Marbury v. Madison. Subsequent cases expounded and refined the power of the court.


Okay, so here in Canada I believe how it works is if a law is stuck down by a lower federal court the government can then appeal that decision all the way to the Supreme Court, or the government can revise the law. (Someone please correct me if I'm wrong.) I assume this would work the same way in the United States?

In Canada, our individual rights are contained in the "Charter of Rights and Freedoms". The Charter also contains the "Notwithstanding Clause" which allows the legislators to ultimately overturn a Supreme Court decision to strike down a law, effectively preserving what was found to be an unconstitutional law. Does the US have the equivalent of the Notwithstanding Clause or are the court decisions always supreme?

I am also wondering if the US has the same system as Canada where judges may not be recalled from the bench or disciplined on account of any judgment they have made.


i think a constitutional amendment is the legislative response to something being unconstitutional. Not an easy task.


Judges cannot be recalled from the bench based on their judgments-only for judicial misconductt. Legislators here really cannot overturn a Supreme Court's decision that a law is unconstitutional. They can enact a constituional amendment that addresses the issue and effectively enacts the law. This has only been done 4 times. The legislature can also, in drafting legislation, stipulate that the piece of legislation is not subject to determination of constitutionality. This is also rare. It was part of The Protection of Marriage Act. I'm not sure what that is exactly, but I don't think it passed. I think it passed in the House and is either pending or was struck down in the Senate. This is my basic understanding, but I am still learning. Hope that helps


Yeah-it's only been done 4 times.


I see.

Thanks for the replies!


jsbrook - btw, where do you go to school and what are you studying?


No problem. Happy to help. I'm at University of Michigan Law school. First year.


That's cool.

What type of law do you plan to eventually practice?


4? Aren't there 27 Amendments?


Just in case anyone is interested here is the process:

A constitutional amendment requires the support of a two-thirds majority in each of the legislative houses, and the approval of three fourths of the individual States, either by State Legislature or by a State Convention. All of this must happen within a seven year period for the amendment to pass. The President cannot propose amendments, nor takes part in the amendment process.

There is a second, similar amendment method that has never been used.

I find US civics so fascinating.


This isn't quite right.

Firstly, there are (at least - but this will suffice for general discussion) two systems, as noted: state and federal courts.

State courts are courts of general jurisdiction -- they can hear cases on state, federal and constitutional law. Federal courts have limited jurisdiction -- they need personal or subject-matter jurisdiction. For the purposes of this discussion, all we need to know is that Constitutional questions are within the jurisdiction of federal courts.

So, both state and federal courts can rule on the Constitutionality of state and/or federal laws. The question is the applicability of their authority.

State court decisions are only binding interpretations within the state - so, state courts are not the preferred venues for people to bring suit if they want to try to get a federal law interpreted as unconstitutional. Those cases almost always land in federal court (and when they don't start there, they are often removed there). [ADDENDUM: I should note that state supreme court decisions on Con/federal law questions are reviewable by the USSC].

So, point one, is that generally questions on the Constitutionality of a law begin in lower federal courts.

Point two, is that lower federal court opinions are appealable for two levels up -- the Circuit Courts and the US Supreme Court. So lower-court rulings are only final once they've either been affirmed by a superior court or the next level up has declined to review.

The other thing to note is that, except for the USSC, the rulings of the district (and the circuit) courts are only binding within their respective jurisdictions. So if you're talking about having a federal law declared unconstitutional, for it to be binding authority throughout the U.S., that decision needs to be affirmed by the USSC.

Clear as mud, no? =-)


I don't know if jsbrook is correct, but I think his point was referring to Amendments to the Constitution that were passed in response to USSC decisions declaring something unconstitutional, not the total number of Amendments passed for any reason.


Thanks Boston. Yes, that makes a lot of sense.


Now that I reread what he wrote just above the post I quoted, I think you're right...my mistake.