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Clearly, if a branch takes an action (legislative or especially executive), you can not correctly refer to it as "UN-constitutional" until it was challenged in, and reviewed by, the courts and found in violation of Constitution (doesn't stop the people opposing the action using that word, but they are technically incorrect).

However, is there a clear indication that you can validly technically state that an action that has not yet been challenged in court is ""constitutional"?

I'd prefer an answer that is grounded in either specific legal opinion (e.g. where SCOTUS either accepted, or rejected, characterization of some action as "constitutional" without having been challenged); or in constitutional scolarship.

The question is US-centric, and UK "unwritten" Constitutional system based answers are NOT what I seek since US system works differently

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    Very well phrased, and happy that you distinguished between US and UK versions of "constitution" – Affable Geek Nov 24 '14 at 15:41
  • I'm not entirely sure that you couldn't legitimately refer to something as "unconstitutional" before the courts got through it. If Congress passed a law raising the election age back to 21, that'd be blatantly contradictory to the 26th Amendment. However, I don't think that scenario is worth mentioning in the question, since it's so unlikely. – Bobson Nov 24 '14 at 15:59
  • @Bobson - I don't think the obviousness of the issue has anything to do with due process (similar to how you can't call someone "guilty" even if they are 100% clearly guilty, having committed a crime on national television and confessed; before the court finds them so) – user4012 Nov 24 '14 at 16:12
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    The courts don't cause a thing to be "constitutional" or not, we just trust their evaluation whether or not the thing is constutional. – Sam I am Nov 24 '14 at 17:34
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    The constitution is a cultural backbone of the USA, and as such has a cultural interpretation and a legal interpretation. Whilst there are many lawyers, you will find most claims about constitutionality are made in the cultural arena. This of course doesn't answer whether the legal position is by default permissive or restrictive. – LateralFractal Nov 24 '14 at 22:08
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I think you are getting bogged down in definitional issues that do not really help clarifying anything.

The constitution is written in English, anybody can read and interpret it and many people have done so. Unless you subscribe to the view that the constitution has no meaning whatsoever beyond what the court said about it, you have to recognize that some things can in principle be coherent with its contents and others cannot. It's convenient to have an adjective for that and I would contend that in English that word is “constitutional”, simply because it's the way in which English speakers use it.

Using the word “constitutional” based on such a personal interpretation of the constitution obviously does not imply that the person using it has the power of invalidating a given norm within the US legal system or that the US supreme court would necessarily subscribe to the same interpretation but why should the word “constitutional” solely be defined by that?

The analogy with criminal law discussed in the comments is a good one. If you go too far in the “the law is only the courts' decisions” direction, you have to conclude that a murder is not a murder until a court says that it is. But that would strike most people as absurd, everybody (including the courts themselves!) act as if there really are laws forbidding murder and not only individual decisions that judges pull out of their hats.

Similarly, the constitution is the basis for deciding what's constitutional or not. Equating “constitutional” with “validated by the constitutional court” is possibly still defensible for an observer but it is obviously useless for the court itself because it would be left with nothing to justify its decisions. Although judges sometimes do appear to take some freedom with the letter of the text, they certainly mostly pretend to be following the law (in this case “discovering” whether something is constitutional or not, as it were), not making it up as they go. They have to assume that the constitution really has a meaning and hence that things can be (un)constitutional even before they reveal their decision in a given case.

It also seems rather circular to request a US supreme court decision about this. Why should it have a monopoly on what the word means? Why would it even need to use it?

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    You should remove the last section on murder. Someone not convict of murder might take offense being called a murderer and might sue for defamation/slander. Words have meaning after all. – user1873 Nov 26 '14 at 14:44
  • @user1873 Indeed but the meaning of the word “murder” is obviously broader than “having been found guilty of murder”, defamation proceedings notwithstanding. My point is that you just cannot account for all uses of the word or think the law has any meaning if you don't admit that. – Relaxed Nov 26 '14 at 14:48
  • @Relaxed - except that the analogy of "constitutional" is indeed "having been found guilty of murder" and not simply "murder" – user4012 Nov 26 '14 at 15:19
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    @DVK I just argued that there is no reason for that so merely stating the opposite is not very useful but either way if you grasp the distinction, you should realize it makes the question moot. The important thing to realize is that a definition cannot be “true” or “false”, merely common or not. You can define “constitutional” in that way if you like, it makes no difference. It's obviously not what people mean in many actual uses of the word and there is no basis to declare one usage or the other “technically incorrect”. – Relaxed Nov 26 '14 at 15:50
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    If you are bothered by this imprecision, you are free to use phrases like “ruled unconstitutional by the Supreme Court”, which is actually what people do if they specifically want to discuss that. Incidentally, what would be the word for “compatible with the constitution” then? Why arbitrarily deprive yourself of such a useful word? – Relaxed Nov 26 '14 at 15:50
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Yes, constitutional means:

allowed by a country's constitution

Unconstitutional means:

not allowed by the constitution of a country or government

Unlike murder, which only has a legal definition, (un)constitutional has a non-legal definition. Anyone capable of reading and understanding English can declare something is constitutional. The Supreme Court may have declared itself the ultimate "legal"authority of what is (un)constitutional, based upon Article III, Section 2, Clause 2 ...

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. [...] This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

but, the aren't the ultimate authority on the English language.

  • This question should really be moved to English.SE – user1873 Nov 27 '14 at 4:35
  • (+1) I am not sure the difference with murder is as sharp as you make it to be. In a general sense, the reasoning of the court is similar: It matches a particular set of facts with the rules, e.g whether some action meets the definition of murder, whether something is a “right” protected by the constitution or whether some action goes beyond the powers allocated to a particular institution (e.g. the president). The adjective itself might not appear in the text but the constitution is the definition of what's constitutional, just like the law on murder is the definition of what's murderous. – Relaxed Nov 27 '14 at 9:30
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The premise of the question is wrong: An action can certainly be unconstitutional even if no court has ruled it is. For instance, courts are willing to call hypothetical acts unconstitutional if it helps in the discussion:

If New York provided that, where a businessman invokes the Self-Incrimination Clause of the Fifth Amendment, he shall forfeit, say, $10,000, the law would plainly be unconstitutional as exacting a penalty for asserting a constitutional privilege. What New York could not do directly, it may not do indirectly. Yet penalizing this man's family corporation for his assertion of immunity has precisely that effect.

(from the dissent in Campbell Painting Corp. v. Reid, 392 U.S. 286).

The flipside is also true: A court can mention that something would be constitutional, even if that something hasn't been enacted. For instance, from Chapman v. US, 500 U.S. 453:

The same objection could [500 U.S. 453, 467] be made to a statute that imposed a fixed sentence for distributing any quantity of LSD, in any form, with any carrier. Such a sentencing scheme - not considering individual degrees of culpability - would clearly be constitutional.

The hypothetical scheme has never been formally challenged, because it was never actually a law; it's used for the purposes of discussion, but the court doesn't say "would be ruled constitutional"; it says "would be constitutional". Constitutionality is independent of a court's ruling, it's just that a court is generally considered to be the best judge of it, and that it's only directly relevant in a court proceeding (and courts will most often defer to previous rulings about the constitutionality of something).

  • Interesting answer, though it seems to say that while a court is the only official arbitrator, something can be deemed constitutional (or unconstitutional) prior to said court ruling? So, the answer is 'yes, something can be called constitutional, but it'd be a matter of opinion, rather than legal status'? – user1530 Nov 26 '14 at 21:16

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