Constitutionality is the test for laws to ensure they don’t violate the Constitution. Unconstitutional laws are void from inception, and anyone can challenge them if they cause harm. Different levels of scrutiny determine constitutionality, with strict scrutiny being the most rigorous. Few contested laws pass under strict scrutiny, while minimal scrutiny is deferential to government and usually results in government wins.
Constitutionality, or the ability to pass constitutional muster, is the test for laws and statutes to ensure they do not violate the Constitution. Every law is held to be constitutional, unless or until it is overruled in whole or in part. However, it has long been held that an unconstitutional law is void from its inception, not just after it is declared so, and that no person is bound by it and no court or other body is bound to enforce it.
When constitutionality is challenged, it will be argued that the law has caused harm to a person or entity. If the probability of damage can be demonstrated, it is said that the person or entity is entitled to take legal action in order to attempt the annulment of the law due to its unconstitutionality. Any law or statute can be considered unconstitutional as applied, i.e. as applied to the specific case, although it may retain its constitutionality in other situations. On the other hand, there are times when only certain sections of a statute are declared unconstitutional and the rest are allowed to remain in effect. A law can also be declared unconstitutional on first sight, or fatally flawed, meaning that it is unconstitutional in its entirety.
There are different methods, also called levels of scrutiny, by which constitutionality is determined. Rigorous scrutiny is the strictest assessment and applies to First Amendment rights, suspect classes (for example, classes based on race, national origin, and sometimes alienation), and other fundamental rights (for example, the right voting, travel, privacy). When one of these classes or rights is violated and defended in court, the government has the burden of proving that the contested act or law is necessary to achieve a compelling government purpose.
Few contested laws can pass constitutional muster under rigorous scrutiny analysis, generally because at least one of the tests cannot be satisfied. Even when the government can show a compelling interest, or persuasive reason for the law or statute in question, the prescribed remedy is often deemed too intrusive or restrictive. Thus, in cases where strict control is enforced, the government generally loses.
The intermediate exam is the next strongest level of scrutiny. It is actually closer in rigor to strict control than the lowest level of control. Intermediate control was applied to cases of gender discrimination, illegitimacy and public education up to the 12th grade for irregular foreigners. The burden of proof generally rests with the government to demonstrate that the contested act or statute is substantially related to an important government purpose.
Finally, minimal scrutiny, more commonly referred to as rational basis, is somewhat open-ended in that it provides that to uphold constitutionality, government need exhibit only a permissible government goal achieved by reasonable means. Here the onus lies with the challenger, not the government, which must demonstrate that the contested act or statute is not rationally related to a legitimate purpose of government. This test is applied to a variety of matters, including cases involving poverty, wealth, age, and the necessities of life. Since this test is rather deferential to government, government usually wins when a rational basis is applied.
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