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[Servant Corps]

I have seen people saying that the government is doing something "unconstitutional", and yet the Supreme Court either ruled that it was constitutional, or never ruled on it at all (so the law remains valid and people will have to follow it). One example of something that someone might call "unconstitutional" would be, say, the idea that the United States President can wage a war "de facto" without needing to actually declare a war (which requires Congressional authorization) by just claiming he's the Commander-in-Chief and tell his army to invade a country. The only limit on this is the War Powers Act, which does require authorization for a military action by President after 60 days and for the President to inform Congress within 48 hours of the start of military operations. (In my search, I've seen that some people even argued even the War Powers Act is unconstitutional, because it put limits on the President's powers...so...yeah).

Thing is, thanks to the power of judicial review, the Supreme Court acquires the 'de facto' power to interpret the Constitution: the Court has the power to invalidate laws that it finds unconstitutional, and thereby implicitly determine what is and isn't constitutional. If the Supreme Court does not rule on the constitutionality of a law, then I suppose there can be a debate over if a law is unconstitutional or not, but unless the Supreme Court actively intervenes to stop a law, then the law would still be valid anyway, so debate over "constitutionality" would be pointless. And if the Supreme Court does rule on the constitutionality of a law, then it's clear that, due to judicial review, its word is final, and disagreement with the Court would appear to be pointless.

But I must be missing something. Why is the word "unconstitutional" being brandied about despite the fact that only the Supreme Court can realistically make a judgment about "constitutionality" thanks to judicial review.

EDIT: There is something I must speak up first, in the interest of discloure. I previously have said in past threads that the consitution gave the right to the Supreme Court to interpert the consitution. When I actually did the research right now and read said consitution, I realize I was wrong; it was in fact Marbury v. Madison which did that. I must apologize for this "flip-flop", if anyone cares.

[Virex]

Because people think that the high court should have ruled in a certain way? It's shorthand for "in my opinion this should be considered unconstitutional by the high court", but nobody is going to spend so much words on it.

[Tilla]

More and more often I'm seeing people calling unconstitutional ANYTHING that isn't specifically mentioned in the ancient documents. That's not only stupid, it's against the spirit of the constitution in the first place.

[Earthquake Damage]

Because people think that the high court should have ruled in a certain way? It's shorthand for "in my opinion this should be considered unconstitutional by the high court", but nobody is going to spend so much words on it.

It's also used in reference to (arguably unconstitutional) laws that have not been challenged in court, or at least not challenged in the Supreme Court.

[Bauglir]

To be clear, we are discarding the claims of people who call something unconstitutional because they dislike it, whether they've read the document or not, right? That's a large percentage of the use outside of official government documents/speeches (a speech given by a politician does not necessarily fall under that category, by the way).

[GTM]

A number of folks - even some past supreme court justices - are strict constructionists, (which for any non USA people reading this means that the constitution is what it is and shouldn't be interpreted).  So in their minds, when the supreme court does too much interpreting and deviates from the literal text, they're making unconstitutional decisions.  In their mindset, the supreme court is not infallible.

[Lord Shonus]

More precisely, strict-constructionists insist that you can't infer rights and powers from those already extant in the constitution, but anything that can be interpreted as falling under the explicitly given powers is fair game.  (This is far broader than it would seem from the description GTM gives.)


The fact of the matter is that most important issues will rarely get to the Supreme Court in the first place, as both sides have too much to lose, so the issue can remain in an abeyance with neither side satisified, but neither willing to take the risk of pushing for more. This abeyance does not mean that there can be no doubt or discussion on the Constitutionality of an issue.

[Karlito]

Well often there is a legitimate legal argument for the un/constitutionality of contentious issues. The Supreme Court rarely hands down unanimous decisions after all.

[knaveofstaves]

Well, if you reasonably believe that a law is unconstitutional, you can break it, lawyer up, and when you lose, appeal it.

Not that I would recommend this for anyone who doesn't have millions of dollars for lawyers.

[Strife26]

I believe that the answer to the original question is a matter of separate meanings, that is to say that people sometimes claim something is unconstitutional when it's against their own interpretation of the constitution, not the supreme courts. For example, a LCS gone wrong (right?) government could have the supreme court making judgments that are clearly against the will/word of the constitution, even though they'd technically be "constitutional."

[RedKing]

The problem is that "unconstitutional" is somewhat in the eye of the beholder. That seems counter-intuitive, given that the point of a written constitution is to avoid subjective interpretation, but there you have it.

It's akin to people saying something is "un-Christian", when you have thousands of denominations out there who don't agree on what being "Christian" entails. You'd get very different answers from a UCC and a Pentecostal.

Nowadays, it's in the same category as "activist judge" and "fascist", i.e. pejoratives that one side slings at things it doesn't like, while ignoring things which may well fit the definition but benefit "their" side of the political divide.