Background
The term unconstitutional is something that comes up often, particularly when it comes to the Supreme Court. According to Merrriam-Webster, the term unconstitutional can be defined as , ” not according or consistent with the constitution of a body politic (such as a nation).” In the case of this discussion, it is the Constitution of the United States. The biggest question that many people have is how do you consider something to be unconstitutional, meaning where is and how do you draw that line? This is definitely something difficult, hence why it is the Supreme Court’s sole job to decide that.
Supreme Court
Before going into specific examples of this being placed into action, it is important to discuss and provide information on the Supreme Court itself, as without an understanding of this, the rest is irrelevant. The Supreme
Court, as defined by dictionary.com, is “the highest court of the U.S.” The Supreme Court is made up of nine justices, which include eight associate judges and one chief of staff.
When the Supreme Court was first created, they were not really seen as the governing body on difficult court cases. What kind of power did they really have? Marbury vs. Madison is the perfect example. If John Marshall had decided to tell the Madison administration to give Marbury his commission, Madison could just ignore it and demonstrate the lack of power the court truly had. Instead, he had decided that the Judiciary Act of 1789, which is what allowed Marbury to make this ask, was “unconstitutional”, as it extended the courts power further than the constitution stated. This was the creation of judicial review.
Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan.
Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson.
Credit: Fred Schilling, Collection of the Supreme Court of the United States
Recent Example
This past year, a perfect example of a case where constitutionality came into effect. The case “West Virginia v. Environmental Protection Agency” took place in June of 2022. This was all about the Clean Power Plan rule, which dealt with carbon dioxide emissions. It moved from that to the Affordable Clean Energy rule from the EPA. However, the Supreme Court deemed this was unconstitutional, as the EPA was a Federal Agency, and therefore, does not have the authority to do so.
Roe v. Wade was a court case that took place back in the 1970’s granting the right to abortions to all states. However, that decision was overturned in 2022 as well. The Supreme Court decided that no where in the constitution does it guarantee a right to privacy, and this right of an abortion was not included in the category of enumerated rights, therefore, a mandatory right of an abortion would be considered “unconstitutional”.
Political Aspect
The thought many people have is about how the Court is very political. Presidents, who are the ones who nominate justices, typically pick those of their own party. It is very curious how their political views could not play a part, as they are supposed to be unbiased and strictly look at the Constitution. Certain decisions by certain justices raise questions as to whether or not they actually keep it unbiased.
Many cases end up going to the Supreme Court due to the fact that they are very controversial. That is what makes their job so difficult, as they have to sort out the controversy and keep the Constitution and the betterment of the country in mind.
Conclusion
The term unconstitutional has a very basic definition. However, when the topic starts to get discussed, it gets much more complicated. There are layers to it, and controversy tends to be the result. The system put in place has the country’s best interest in mind, however, just like everything else, it is not perfect. It is up to us as a country to help keep that in check by getting involved.
https://www.merriam-webster.com/dictionary/unconstitutional
https://www.dictionary.com/browse/supreme-court
https://supreme.justia.com/cases/federal/us/597/20-1530/
This post is a solid introduction to the most nebulous and theoretical branch of our government. I particularly appreciated that you touched on the origins of the Supreme Court, as well as the intentions of the creators. One of the most interesting dynamics in the United States is the separation of powers between the different branches. More specifically, the judicial branch has no enforcement power of their decisions. So when a landmark decision like Dobbs v. Jackson gets handed down, the Supreme Court has to rely on action taken by the legislative or judicial to enforce their opinions.
This can obviously be viewed in a restrictive light, where branches are limited to their own spheres. Historically, however, the branches can take individual action on the same issue, causing powerful shifts in current policies. For instance, in the first two decades of the 21st century, the judicial, executive, and legislative branch made a series of sweeping decisions that related to the punishment of falsifying military honors.
In 2005, the legislative branch created the Stolen Valor Act, which created a maximum punishment of six months in prison for misrepresenting military honors or awards. The act was challenged all the way up to the Supreme Court, and in 2012, they heard the case under U.S. v. Alvarez, ultimately finding the Stolen Valor Act was an unconstitutional infringement of the First Amendment. However, the executive branch found a work around by developing a federal database that made verification of the military easy (US Courts). This fascinating give and-take demonstrates the beauty of our governmental system.
I also enjoyed your acknowledgement of how political biases can influence the Supreme Court because I think we’ve been seeing a huge uptick in recent years. There have been increased conversations about “expanding” the court to dilute politics’ influence on the court’s rulings, although that action would create a slippery slope that threatens the integrity of democracy. Perhaps the more compelling argument regarding changes in the Supreme Court has been a renewed examination of lifetime appointments. With only one justice having ever been impeached (back in 1805), once a Justice is confirmed, they’re in for life. This can create a tense environment where each appointment of a justice carries echoing implications for the next several decades in the United States. By establishing term limits, some argue presidents would be less pressured to gain political power, and instead nominate individuals who are most worthy and experienced.
https://www.uscourts.gov/educational-resources/educational-activities/separation-powers-action-us-v-alvarez
This post was very well-written, and I certainly enjoyed reading it. Your example of the 1803 Marbury vs Madison case lays a great foundation for the true meaning of the word “unconstitutional,” because a pretty high number of people do not actually know what it means to be unconstitutional. I have heard a lot of people discuss issues they perceive as unfair or oppressive (which very well could be) and label them as unconstitutional, despite the fact that these issues do not technically violate the constitution.
Breaking down the Roe vs Wade case into technical terms was also a great way to explain the true meaning of the word “unconstitutional.” Since this case was so controversial and overturned so recently, it gives people a solid understanding of how the Supreme Court makes its decisions. Additionally, since the Roe vs Wade case was so controversial, the actual issues of women’s rights and morality are more well-known by today’s public than the issues that were prevalent in cases that happened hundreds of years ago.
An issue that was recently found to be unconstitutional is the severe lack of funding in low-income Pennsylvania schools. As recently as three days ago, it was brought to light by attorneys, parents, educational facilitators, and entire institutions who filed lawsuits about the vastly different levels of funding allotted to different public K-12 schools in Pennsylvania. A troubling pattern surfaced regarding the types of Pennsylvania schools that received more funding than others. It was found that Pennsylvania schools in high-income areas received much more funding than schools in low-income areas. In fact, Commonwealth Court Judge Renee Cohn Jubelirer stated that “students who reside in school districts with low property values and incomes are deprived of the same opportunities and resources as students who reside in school districts with high property values and incomes” (Juhasz, 2023.) It was found that Pennsylvania schools were potentially being underfunded by $4.6 billion (Juhasz, 2023.) However, this Tuesday, a judge ruled that this major financial gap in education between Pennsylvania public schools of varying income levels can no longer exist. Governor Shapiro has commented that he and others are working to ensure that “1.7 million [Pennsylvania] children can access a high-quality education. . .” (Lieberman 2023.)
I brought this case up because I found it so interesting that cases as recently as a couple days ago are being deemed as unconstitutional, meaning it is crucial for the public to understand what it means to be unconstitutional.
Sources:
https://whyy.org/articles/pennsylvania-school-funding-lawsuit-judge-rules-unconstitutional/
https://www.edweek.org/policy-politics/pennsylvania-school-funding-is-unconstitutional-judge-says-heres-what-could-happen-next/2023/02#:~:text=Here's%20What%20Could%20Happen%20Next,-By%20Mark%20Lieberman&text=The%20fifth%20most%20populous%20U.S.,education%2C%20a%20judge%20ruled%20Tuesday.
Great piece on the meaning and complications of the term “unconstitutional.” This term gets thrown around a lot in political arguments, and it is not uncommon to see it used incorrectly.
The fact this term is often misused and its definition is not clear and defined makes the Supreme Court’s job extremely difficult and extremely important. I believe the clarity issues in this discussion stems back to the lack of clarity and conciseness in the Constitution itself. An article from The New Republic quotes what former President Thomas Jefferson said about the Constitution. Jefferson wrote, “provide in our constitution for its revision at stated periods.” “[E]ach generation” should have the “solemn opportunity” to update the constitution “every nineteen or twenty years,” thus allowing it to “be handed on, with periodical repairs, from generation to generation, to the end of time.” Jefferson and the other American leaders at the time that the Constitution was written believed that the document and others like it was more so a starting point than the never changing rule of law. Since they set it up in a way that it could be changed, the words of the Constitution have been changing in the 235 years since its ratification. Since the constitution has been changing, the American idea of what is constitutional (or unconstitutional) has been changing as well.
The example you mentioned about the right to an abortion being deemed “unconstitutional” was a big change that seemed to shock many people. A practice that was becoming almost a common thing in society today being repealed fifty years after it was first enacted came as a surprise, and since then individual states have made their own decisions on whether or not to allow abortions. The current law in Pennsylvania says that abortion is legal up to the 24th week of pregnancy. However, many states have differing opinions on this issue. This is an issue that could swing back and forth in the future after any shifts of political power happen. You also mentioned the political aspect, and as a Supreme Court justice the task of looking at just the law and not bringing in one’s own political views can often be difficult.
Overall, great piece and insight on the understanding of what makes something “unconstitutional.”
https://newrepublic.com/article/63773/what-jefferson-said