What Makes Something Unconstitutional?

by Judge Gerald A. Williams
North Valley Justice of the Peace

On the national level, one political party clearly has enough representatives and senators to pass whatever health-care proposals it desires.  It has not done so in part due to public opposition.  Meaningful debate is always good and every American knows that they have a right to free speech and to question their government.

However, concerned citizens who appeared at town-hall meetings and tea party protests were accused of spreading lies and being uninformed.  One commentator noted that doing so keeps supporters of new health care entitlements from having to contemplate the possibility that these citizens have a rational basis for opposing so-called health care reform.

Both sides have used terms incorrectly and out of context, even though there are clearly defined meanings.  One such term is “unconstitutional.”

Generally the U.S. Supreme Court has established three categories of what kind of review will be applied to a government’s actions to determine whether something is constitutional.  If strict scrutiny is applied, then the law or action will be upheld only if it is necessary to achieve a compelling government interest.  On the other end, if a rational basis test is applied, then the law will be upheld if it is merely rationally related to a legitimate government interest.  Between these two, there is an intermediate scrutiny that, if applied, will uphold a law if it is substantially related to an important government purpose.

The level of scrutiny to be applied will likely control the outcome of the case.  For example, if something is a fundamental right, like anything in the First Amendment, or has been declared to be a fundamental right, like the right to privacy, then strict scrutiny will be applied to government action trying to restrict that right.  Any restriction based on someone’s race is also going to trigger strict scrutiny.

Free speech works as an example.  Freedoms of speech and assembly allow the free flow of ideas and debate and are a prerequisite for a free society.  However, there are numerous time, place and manner restrictions on speech.  For example, false advertising, defamation and the disclosure of top secret information are not protected speech.

The next time you hear someone declare that an action of either the previous or current President to be “unconstitutional,” feel free to ask them, “How?”  It might be fun to see whether they understand their own argument.

Judge Williams is the presiding justice of the peace for the Northwest Regional Court Center.  His column appears monthly in The Foothills Focus.


  1. Shouldn’t the burden always be on the GOVERNMENT to prove that what it is doing IS constitutional rather than burdening citizens with the requirement to prove the govermnent is acting unconstitutionally?

  2. The Onion just did this:

    “Area Man Passionate Defender Of What He Imagines Constitution To Be”


  3. “Both sides have used terms incorrectly and out of context, even though there are clearly defined meanings”

    Both sides? Really?

  4. With all due respect to the honorable Justice…using open-ended terms like “rational basis” to justify whether a law is Constitutional, has turned out to be a dangerous way to justify an out-of-control-big-government.

    There should be a better mechanism than something that vulnerable to bias…like a stricter set of guidelines that would not allow a complete government takeover of our healthcare, based on an interstate-commerce clause.

    We are sinking the great ship of America, and we have judges sitting on benches splitting hairs over things that should be more clearly defined with common sense.

  5. Veritas Vincit says

    “… has been declared to be a fundamental right, like the right to privacy”

    With all due respect to the judge, how can something not specified in the Constitution be “declared to be a fundamental right?”

    If the document was open to speculative discovery of interpretive new rights such as the judge suggests in that statement, why did the Framers go to such lengths to be very clear in their enumerations?

    And why did they go on to say that anything not contained in this document specifically was specifically reserved to the states?

    The Constitution is a compact between two equals; the several States and the national government. It is therefore odd that one party to this compact has been allowed to define the terms of the agreement.

  6. Veritas Vincit says

    “… based on an interstate-commerce clause.” That has been grossly misrepresented to suit the purposes of that one party to the agreement to thus allow that single party to grow unabated into areas and activities where the Framers would never have wished it to grow.

    James Madison vetoed legislation that would have appropriated funds for the construction of federal roads in spite of the fact that he supported the idea. His written opinion supported by the SCOTUS at the time clearly notes that such an action by the federal government would require a Constitutional Amendment as there was no provision for it under the existing Constitution (1792).

    I think President Madison knew more about the Constitution and its intent and meaning than we do today. His example strongly demonstrates the UnConstitutional nature of today’s use of the “general welfare” clause.

  7. Judge Gerald Williams says

    I find both interesting and somewhat amusing that some of the comments are apparently holding me accountable for a series of cases from the U.S. Supreme Court. Trust me, they don’t ask my opinion before they announce something. There are many statues and appellate decisions that are problematic at best; but I don’t have the option of ignoring them.

    As I tell many at their photo enforcement hearing, if you don’t like this law, don’t yell at me. I didn’t write it, vote on it or pass it and none of the fines go to either the court or to Maricopa County. If you have a problem with this or any other state statute, consider contacting your state senator. It is not my job as a judge to “change” a statute.

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