Eleanor Finch
When something goes against the constitution, it is known as being 'unconstitutional'. The constitution can be violated by the government, public servants, and even national leaders, and there is ongoing debate about how to hold those responsible to account. In the US, the Supreme Court holds various laws and regulations as unconstitutional, and federal laws can be declared unconstitutional by federal courts. In other countries, such as the UK and New Zealand, there is no codified constitution for laws to conform to.
| Characteristics | Values |
|---|---|
| When a federal law is unconstitutional | The remedy is "nullification" of the law by "the several states" |
| The power to declare laws unconstitutional | Exercised solely by the federal courts |
| When the federal government acts beyond the scope of its powers | A state may determine that the federal government's "acts are unauthoritative, void, and of no force" |
| The First Amendment is violated | There is no penalty for violating the Constitution |
| The government endangers public health or safety | The government acts quickly to remedy the situation |
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What You'll Learn
The First Amendment
An action or law that goes against the constitution can be termed "unconstitutional".
> "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Despite its importance, the First Amendment has been violated numerous times throughout history, particularly during times of crisis. Leaders and public servants have often curtailed the freedoms outlined in the First Amendment, and those responsible are rarely held accountable.
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Unconstitutional rules of the FCC
An action or rule that goes against the constitution can be termed "unconstitutional". The US Constitution and the First Amendment have been violated many times over the past two centuries, and those responsible are rarely held accountable.
The Federal Communications Commission (FCC) is no exception to this. The FCC's indecency rules have been deemed unconstitutional by a federal appeals court, which stated that the policy violated the First Amendment as it was "unconstitutionally vague" and created a "chilling effect". This decision was the result of a lawsuit filed by Fox Television and other broadcasters. The FCC's indecency rules were initially introduced in 1975, when the agency fined the Pacifica Foundation for playing a 12-minute recording of George Carlin's "Filthy Words" monologue.
The FCC's authority has been limited by the Supreme Court, which stated that the FCC's power to police broadcast indecency was restricted to Carlin's "seven dirty words". However, in the last decade, the FCC shifted its focus and started to treat each broadcast of a show with indecency as a separate instance, increasing fines for indecency tenfold. This harder line led to broadcasters suing the FCC, and while the Supreme Court initially sided with the FCC, the case was sent back to the appeals court, which ruled against the FCC on the grounds of unconstitutionality.
The unconstitutional rules of the FCC are not rules that the agency is obligated under federal law to promulgate. Instead, they are regulations that the agency has created under its broad discretionary authority. This has resulted in the violation of individuals' constitutional rights, with no offers of apology or compensation for those affected. The victims of this constitutional abuse often suffer in silence, fearing governmental retribution for raising constitutional and legal arguments against the government.
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Federal laws vs state laws
The violation of the constitution is a serious issue, and it is referred to as "unconstitutional".
Federal laws apply to the entire nation, including all 50 states, the District of Columbia, and US territories. These laws are created and passed by Congress, signed into law by the President, and can be reviewed and struck down by federal courts if deemed unconstitutional. Federal laws cover a range of topics, including civil rights, anti-discrimination, immigration, bankruptcy, postal service, intellectual property, and military affairs. The US Constitution, with its Supremacy Clause, establishes federal laws as superior to state laws, ensuring uniformity across the nation.
State laws, on the other hand, are specific to each state and its residents. While they cannot reduce or restrict the rights of US citizens guaranteed by the Constitution, they can grant additional rights and impose more responsibilities on state residents. State laws vary significantly, and each state has its own constitution and legal system. They govern matters like family law, divorce, child custody, and local business regulations. When a state law provides more rights or imposes fewer restrictions than federal law, the state law prevails within that state. However, if a conflict arises between state and federal laws, the federal law takes precedence, and the state law cannot be enforced.
The interplay between federal and state laws can be complex, and conflicts may arise. Federal laws are designed to ensure uniformity on key issues, while state laws allow for more localized variations in rights and responsibilities. The Supremacy Clause of the US Constitution acts as a safeguard, ensuring that federal laws and the rights afforded by the Constitution take precedence when conflicts occur.
To summarize, federal laws provide a uniform framework for the entire nation, while state laws offer flexibility and the ability to adapt laws to the specific needs and preferences of each state and its residents.
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Accountability of those responsible
An action or a rule that goes against the constitution can be termed as "unconstitutional". When a legislative act or law is found to be in conflict with the constitution, it is deemed "unconstitutional" and declared void in whole or in part. This power to declare laws or acts unconstitutional rests with the judiciary, specifically the federal courts in the case of federal laws in the United States.
Now, coming to the accountability of those responsible for such unconstitutional actions or rules, it is observed that those who violate the constitution are rarely held accountable. Public servants enjoy immunity for liability in their performance of public functions, and this immunity often turns into impunity when it comes to the constitution. There is a lack of penalty or retribution for violating the constitution, and victims of constitutional abuse often suffer in silence, fearing governmental retribution if they raise their voices.
However, this does not mean that there are no checks and balances in place. In the United States, the Supreme Court plays a crucial role in upholding the constitution. Every year, the Supreme Court strikes down various laws and regulations that are found to be unconstitutional, particularly those infringing upon the First Amendment rights. Additionally, the states, as asserted in the Kentucky and Virginia Resolutions of 1798, have a right to interpret the Constitution and can declare federal laws unconstitutional when the federal government exceeds its delegated powers. This concept is known as "nullification".
Despite these mechanisms, the process of holding individuals accountable for unconstitutional actions or decisions can be challenging. Often, the laws or rules in question are attributed to anonymous lawmakers or bureaucrats, making it difficult to assign direct responsibility. Nonetheless, it is important to recognize that the accountability for unconstitutional actions ultimately lies with those in positions of power, including government officials, lawmakers, and members of the judiciary.
To strengthen the accountability of those responsible for unconstitutional actions, several measures can be implemented. Firstly, there should be increased transparency and disclosure of information regarding the creation of laws and regulations. This includes proper documentation and attribution of authorship to ensure that individuals responsible for unconstitutional provisions can be identified. Secondly, there should be clear and effective mechanisms for citizens to raise concerns or challenge unconstitutional actions without fear of retribution. This could involve strengthening the role of independent oversight bodies or ombudsman offices that can investigate complaints and hold accountable those who violate constitutional rights. Thirdly, educational initiatives and public awareness campaigns can play a vital role in empowering citizens to understand their constitutional rights and recognize when they are being infringed upon. By fostering a culture that values and upholds constitutional principles, the likelihood of unconstitutional actions being identified, challenged, and rectified increases.
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Immunity and impunity
In the context of a state or country, immunity is a procedural rule that grants protection from legal consequences, particularly in cases of human rights violations. State immunity has evolved over time, and while it was once an absolute power, new limitations have been imposed. For example, the International Court of Justice (ICJ) has handled cases that involve the tension between state immunity and human rights violations, such as Germany v Italy.
On the other hand, impunity refers to the absence of consequences or punishment for wrongful acts. In the context of a constitution, impunity can refer to the lack of accountability for violating constitutional rights. For instance, in the American context, the First Amendment has been violated numerous times, yet those responsible often face no repercussions beyond public disapproval. Similarly, in the international arena, heads of state and senior government officials have historically enjoyed immunity from prosecution, allowing them to commit grave crimes with impunity.
However, there have been efforts to combat impunity and hold individuals accountable, regardless of their rank or position. The adoption of the Rome Statute in 1998, which established the permanent International Criminal Court (ICC), was a significant step forward. The Rome Statute unequivocally states that it "shall apply equally to all persons without any distinction based on official capacity," rejecting the notion of immunity for heads of state and government officials. This marked a pivotal moment in challenging the unchecked power of world leaders and upholding the integrity of international law.
Furthermore, in the United States, the power to declare federal laws unconstitutional lies with the federal courts, as indicated by the Federalist Papers. This power of judicial review allows for the nullification of laws deemed to be in violation of the Constitution, serving as a check on the federal government's power and holding them accountable to the Constitution.
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Frequently asked questions
An act or law that goes against the constitution is deemed unconstitutional.
When a legislative act or law is found to be unconstitutional, it is declared void in whole or in part.
Depending on the type of legal system, a statute may be declared unconstitutional by any court or only by special constitutional courts. In the US, the power to declare federal laws unconstitutional lies in the federal courts, not in the states.
The Kentucky and Virginia Resolutions of 1798, written by Thomas Jefferson and James Madison, are considered the foundational documents of the theories of nullification and interposition. These resolutions asserted that states have the right to interpret the Constitution and declare federal laws unconstitutional when the federal government exceeds its powers.
Yes, the FCC has been known to violate individuals' constitutional rights, particularly with regards to the First Amendment.
