Unconstitutional Law

 When Government Oversteps Its Bounds

“All laws which are repugnant to the Constitution are null and void.”
- Chief Justice John Marshall, Marbury v. Madison (1803)

This foundational statement from the U.S. Supreme Court established the doctrine of judicial review, asserting that the Constitution is the supreme law of the land - and any statute conflicting with it cannot stand.

The Ethical Foundation

At its core, declaring a law unconstitutional is not merely a legal act - it’s a moral safeguard. The Constitution represents the social contract between citizens and government. When a legislative body enacts a statute that violates constitutional rights, it breaches that contract and erodes public trust.

Ethically, government officials - from legislators to law enforcement - swear an oath to uphold the Constitution. When they enforce or defend unconstitutional laws, they act in bad faith and betray the public trust, even if they claim to be “just following orders” or “interpreting intent.”

Legal Authority and Precedent

Marbury v. Madison (1803)

Chief Justice Marshall’s ruling in Marbury v. Madison established that it is “emphatically the province and duty of the judicial department to say what the law is.” This means courts are the final arbiters of constitutionality.

If a law violates the Constitution - no matter how widely supported or how long it’s been on the books - it is void ab initio (invalid from the start).

Hoke v. Henderson (1833)

In Hoke v. Henderson, the North Carolina Supreme Court ruled that any statute depriving a citizen of “rights of person or property without a regular trial” is not law at all. This case underscores the due process principle, which demands fair and impartial treatment before depriving anyone of liberty or property.

Ethical Complications

1. Selective Enforcement

Government agencies often enforce unconstitutional laws for years before they are challenged or overturned. This creates systemic harm:

• Citizens lose rights without remedy.

• Law enforcement gains excessive discretion.

• Officials claim ignorance or immunity.

2. Judicial Reluctance

Courts sometimes avoid ruling laws unconstitutional to preserve political stability or to defer to legislative “intent.” Ethically, this abdication allows injustice to continue under the guise of “judicial restraint.”

3. Legislative Overreach

Legislators frequently pass laws that flirt with or directly contradict constitutional limits - from speech restrictions to property seizures to surveillance measures. When political motives outweigh constitutional fidelity, citizens’ rights become collateral damage.

4. Public Misunderstanding

Many Americans believe that if a law exists, it must be valid. In reality, unconstitutional laws remain enforceable until challenged and overturned - leaving ordinary people punished for acts that should never have been crimes.

The Legal Reality: Void, But Enforced

Even though unconstitutional laws are technically “void,” they often remain active until struck down. This paradox is a legal and ethical failure:

• Legally, unconstitutional laws have no authority.

• Practically, citizens suffer under them until a court intervenes.

This disconnect raises a fundamental ethical question:

Should a government enforce a law that violates the Constitution simply because it has not yet been declared void by a court?

A government committed to justice should err on the side of liberty, not convenience.

Citizens’ Rights and Responsibilities

The principle of null and void gives citizens moral standing to question authority and demand accountability. Understanding constitutional supremacy empowers people to:

• Challenge unlawful ordinances or regulations.

• Demand that public officials uphold their oath.

• Seek judicial review of laws that infringe on basic rights.

But it also comes with responsibility - to use legal channels, stay informed, and support constitutional integrity even when it’s inconvenient or unpopular.

The Ethics of Constitutional Fidelity

When a government enforces unconstitutional laws, it violates both legal precedent and moral duty. The Constitution is not optional, and “following orders” is not a defense for violating it.

The true test of governance lies not in how power is exercised, but how it is restrained. A free society depends on leaders who remember that the Constitution belongs to the people - not to those in power.