4

Are there any examples where Judicial Review has not been the process used to deem an act unconstitutional?

3 Answers 3

5

Several examples come to mind. This may not be comprehensive.

Attorney General's Opinions Ands The Equivalent

In state and federal governments in the United States, there is typically an official in the Attorney General's office who reports directly to the Attorney General who writes Attorney General's opinions which are binding legal authority on the government officials in that state or in the federal government, as the case may be, on legal issues.

One purpose for which an Attorney General's Opinion is frequently used is to declare that a law shall be considered unconstitutional for all purposes by government officials in that governmental body.

Typically, this is only done when the precedents regarding a law's unconstitutionality are unequivocally clear, for example, because the U.S. Supreme Court or the state supreme court in the state in question, has declared a virtually identical law to be unconstitutional (e.g. a religious test to run for public office in a state constitution), even though a court has not ruled on this particular law and it remains on the books.

County attorneys and city attorneys in their respective local governments often do the same thing.

State and federal tax collection agencies often following the federal model of regulation like documents called "Revenue Rulings" and "Revenue Procedures" will sometimes make determinations that are binding on the government that are essentially identical in process and effect to an attorney-general's opinion, except that these are typically issued under the supervision of the top tax policy official in the tax collection agency, rather than by an official in the Attorney General's office.

This is also sometimes done by administrative or independent agency boards in the course of carrying out their determinations.

For example, the Environmental Protection Agency might determine, by regulation, that a "right to farm" law under a state statute or state constitution is unconstitutional to the extent that it interferences with its environmental regulation of farms.

Prosecutorial Discretion

Frequently prosecuting attorneys refrain from bringing charges under laws that they believe to be unconstitutional (at least in the circumstances that present themselves where the law could theoretically be used) as a matter of explicit or implicit policy.

Even when a policy is explicit, however, it is often an internal policy not disclosed to the general public. And, since prosecutors routinely exercise prosecutorial discretion for all manner of reasons, it isn't easy to identify cases where a failure to bring a particular charge is a result of a determination by a prosecuting attorney that a law is unconstitutional, at least as applied in the circumstances of a particular case.

Real Estate Title Standards

A somewhat similar practice is found in real estate title work, most often in cases involving racially restrictive real estate covenants. Often there is a statute, regulation, or simply an industry standard privately adopted title standard that title companies trying to determine the state of title to real property use to disregard racially restrictive real estate covenants (and certain other less well known title issues) on the grounds that they are unconstitutional. This is done notwithstanding the general common law rule that duly executed and recorded real estate covenants are binding and run with the land.

Mass Implementation Of Retroactive Precedents

In rare circumstances, when a once widely used legal practice is determined to be unconstitutional and to have retroactive effect, such as convictions of crimes by non-unanimous juries in the State of Oregon, an ad hoc administrative process is established to identify and summarily invalidate the unconstitutional convictions or judgments, without litigating those cases in the courts on a case by case basis.

Legislative Determinations and the Veto Power

A legislative body will often repeal or amend a law for the reason that the law in question is believed to be unconstitutional, even if the constitutionality of this particular law has not been adjudicated in a court. In theory, this is a way in which a legislative body deems an existing law unconstitutional. In practice, however, different legislators will justify the repeal or amendment of an existing law for different purposes and there is no obvious way for someone not familiar with the legislative history of an act and the related deliberations to know if a law was repealed or amended because it was unconstitutional.

Similarly, sometimes a President or Governor vetos legislation for the reason that this politician believes that a bill passed by the legislature is unconstitutional. But there is generally no definitive way to determine which vetos are for this reason and which vetos are for some other reason.

Pre-Litigation Advisory Opinions

The federal courts are not allowed to issue advisory opinions in the absence of a genuine case or controversy as a rules of the jurisdictional limits on their authority under Article III of the United States Constitution.

But some states grant either the state supreme court, or a special committee or council, the authority to review newly enacted statutes, and/or proposed ballot initiative, to determine if they are unconstitutional on their face, before they take effect. In many civil law countries outside the United States, a constitutional court, or a "council of state" has similar authority.

Military Law

Under the Uniform Code of Military Justice (UCMJ) in the United States, disobeying a lawful order is a ground to impose military justice penalties, but court-martial or otherwise.

Implicit in the provision of the UCMJ, is the right and obligation of people subject to this provision of the UCMJ (basically active duty military personnel), to exercise independent judgment to disobey an unlawful order. One form of unlawful order is a military order to do something unconstitutional.

So, in the first instance, a soldier given an order must evaluate whether or not the order which has the force of law as to them, is unconstitutional, and secondarily, this is raised as a defense before the appropriate military justice body (e.g. a court martial) to a prosecution seeking to discipline the soldier for disobeying an order under the UMCJ.

To the extent that raising a defense in a court martial is equivalent to raising a defense in a court proceeding, that really isn't any different than ordinary judicial review. But, when a soldier refuses to follow an order on the grounds that the order is unconstitutional, this amounts to an invalidation of the order on constitutional grounds by a means other than judicial review.

Constitutional Amendments

The 14th Amendment to the United States Constitution specifically held that all laws adopted by the Confederate government during the U.S. Civil War issuing public debts were void as a matter of law.

Similarly, the adoption of various other constitutional amendments, such as the 13th Amendment prohibiting slavery, upon adoption, immediately caused all laws authorizing and regulating the institution of slavery in the United States to become unconstitutional.

Prohibition and the abolition of poll taxes provide other examples of existing laws being determined to be unconstitutional immediately, when constitutional amendments take effect.

Non-Court Precedents

Specific historical acts and courses of dealing are often treated as determinations that different kinds of conduct are, or are not, constitutional.

For example, the U.S. Civil War was taken as a non-court precedent establishing that a U.S. state does not have a right to unilaterally secede from the United States of America, even before a court reached that determination. This likewise implicitly resulted in the conclusion that all confederate laws were unconstitutional.

Many examples of this involve separation of powers provisions of the constitution and provisions adjudicating the internal affairs of legislative bodies.

The former are rarely litigated so custom, practice, and political pronouncements have to suffice instead.

The latter are often expressly non-justiciable (i.e. beyond the jurisdiction of the courts) so determinations of when legislative procedures are constitutional or not are often vested in the discretion of the legislative bodies themselves.

Most constitutional questions related to electoral college results, Congressional elections, and the constitutional amendment process are non-justiciable and are therefore resolved by legislators rather than judges.

3

The Apportionment Act of 1792 allocating members of the House of Representatives is an example. After it was passed by Congress, President Washington determined that it violated the Constitution in two ways: it gave different states different ratios of population to members of the House, and it gave eight states more than one member of Congress per thirty thousand residents (the Constitution says "the number of Representatives shall not exceed one for every thirty thousand," which can be read as either a restriction on the number of representatives in each state or as a restriction on the total number of representatives). In response, Washington vetoed the bill, and the veto was not overridden (Congress passed a different act, which he signed).

Granted, this never entered into law. However, it was passed by Congress, and preventing the enactment of unconstitutional statutes was one of the original purposes of the veto. If an act isn't deemed unconstitutional through judicial review, it means it was deemed unconstitutional through the political branches of government, by people who are just as sworn to uphold the Constitution as a judge is.

1
  • Indeed, I seem to recall reading that some early presidents were of the opinion that the veto was only appropriate if they believed the law to be unconstitutional, and that it should not be used for legislation that they merely didn't approve politically. Times changed, obviously. Feb 15, 2023 at 17:35
0

Are there any examples where Judicial Review has not been the process used to deem an act unconstitutional?

Any and every time a jury nullifies an act, law or edict intended to prosecute a fellow citizen on grounds of unconstitutionality, with or without a rationale given in the verdict. Also when Congress acts within its purview to repeal unconstitutional laws, when an executive makes the same admission with regard to the prior acts of his office, and so on, said acts are being appropriately deemed unconstitutional by someone in an authoritative role per the Constitutional rules of government to do so. No one has any authority to act contrary to the Constitution, regardless of office, and every subordinate and every other branch and person has license to find such acts unconstitutional by virtue of their own oaths of office or of citizenship and refuse to comply.

In short, every body pertaining to the government has authority to declare an act unconstitutional, including the Executive, Judicial, and Legislative branches, and first and foremost, the people themselves.

You must log in to answer this question.