What unconstitutional actually means

Let’s clear something up since I’ve seen way too many people confuse this concept: what does it mean when a Court declares a law to be unconstitutional? What must happen once the Court declares a law unconstitutional?

Here’s what many seem to think must happen: the legislature must promptly modify or repeal the law in question.

Here’s what actually happens: nothing.

The decision declaring a law unconstitutional just means said law is now unenforceable. Accompanying the declaration is an implicit injunction on the Executive Branch against enforcement of that law. There’s still little stopping the law from being enforced despite being declared unconstitutional, though.

The legislature can pass any law it wants, but whether that law will be enforced is entirely a different matter. Because the law is still actually on the books, a person may become subject to arrest and/or civil penalty for violating it. And in Court they may raise the challenge that the law has been declared unconstitutional, presenting the necessary citations, and the judge will dismiss the charges or lawsuit with prejudice. If the law is being actively enforced, in a manner suggesting the Executive Branch was basically ignoring the Court’s declaration, then the Court may explicitly bar enforcement by direct Court order – but rarely is that necessary, because attempting to press charges on a law that cannot be enforced through the Court is just a waste of time and money.

Let’s look at the sodomy bans that existed prior to Lawrence v. Texas, 539 US 558 (2003), arguably the largest demonstration of the misunderstanding of the “unconstitutional” concept. Many States still have such bans on the books. I would add that given the breadth of the decision in Lawrence, that fornication laws are also unconstitutional1Lawrence v. Texas, 539 US 558 at 567: “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
, but many States still have those. As those bans are not enforceable, any person arrested under those laws would find the charges dismissed, either before pleading “not guilty” as the judge would just throw them out without even considering them, or when the challenge is made.

But the legislature is under no obligation to remove the law from its books. It just cannot be enforced.

If the text of the law is problematic, rather than what it seeks to pre- or proscribe – Courts have declared laws to be “unconstitutionally vague” – then the Court may give the legislature a set amount of time to update the law. If the law is not updated in that time frame, the challenged law then becomes unenforceable, because the Court will take their failure to act as a sign that they’re not interested in updating, and by extension enforcing that law. Even if they are attempting to draft new legislation in that time frame, the expiration date determines when the ex post facto prohibitions kick in – see Article I, Sections 9 and 10 of the Constitution of the United States.

Let’s look at Chicago, where the Court struck down their law that essentially forbids the establishment of gun shops within city limits. Because the Court recognized the city still has an interest in regulating gun shops – just as cities like to regulate any commercial establishment through their zoning ordinances among other ordinances – the city was given a time frame by which to establish new zoning laws. If they failed to act in that time frame, then gun shops would’ve been subject to the standard commercial zoning ordinances and could not be specially zoned until new zoning laws were written. Yet the new laws would probably not withstand Court challenge, meaning Chicago just wasted more time and money.

Basically it all comes down to this: whether a law is enforced is on the judicial and executive branches. Whether the law exists is up to the legislature. Declaring a law “unconstitutional” just means it cannot be enforced. But the Courts in the United States do not have the authority to order the legislature to repeal a law and, to the best of my knowledge, have never done so.

Whether the legislature repeals or modifies a law that is declared unconstitutional is entirely on them, but they are under no obligation to do so.