Author:Kenneth L. Karst

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The American concept of unconstitutionality was born before the Constitution was adopted. The STAMP ACT CONGRESS of 1765, for example, declared that acts of Parliament imposing TAXATION WITHOUT REPRESENTATION were unconstitutional and need not be obeyed. Then as now, of course, the British constitution was an unwritten collection of customs and usages, only partly reflected in statutes and COMMON LAW principles. Since the adoption of the earliest state constitutions, however, the statement that a governmental action is unconstitutional has been taken as an assertion that the action violates a written constitution. In common speech, "unconstitutional" normally refers to an action's invalidity under the United States Constitution, but in law the term also refers to invalidity under a state constitution. Legislation is not the only form of governmental action that may be unconstitutional. When police officers conduct unreasonable SEARCHES AND SEIZURES, for example, they act unconstitutionally. Similarly, a state court acts unconstitutionally when it enforces a racially RESTRICTIVE COVENANT.

An assertion of unconstitutionality can be made by anyone: a citizen making a complaint, a newspaper editorial writer, a lawyer arguing a case. The assertion may take on a more authoritative character when it is made by a public officer acting in a governmental capacity. Thus, the President might veto a bill passed by Congress on the ground that it is unconstitutional. (See CIVILRIGHTSACTOF 1866; JACKSON ' S VETO OF THE BANK BILL.) Or, the President might refuse to enforce an act of Congress on similar grounds. Such a presidential refusal led the House of Representatives to adopt ARTICLES OF IMPEACHMENT against ANDREW JOHNSON, thus registering its view that Johnson's conduct was itself unconstitutional. An executive officer may decline to enforce a law for the purpose of allowing others to frame a TEST CASE, thus allowing the courts to rule on the law's validity. BOARD OF EDUCATION V. ALLEN (1968) resulted from one such refusal.

The official in Allen thought it important to get a judicial ruling on the constitutionality of the law in question. In fact, Americans have become accustomed to identifying the idea of unconstitutionality with a judicial declaration of unconstitutionality?and, in particular, with such a declaration by the Supreme Court. A lawyer, asked by a client

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whether a law is or is not constitutional...

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