Is it Constitutional?
Understanding the Constitutional law-making process
Process
When examining federal laws, it is important to ask a simple but critical question: “Is it constitutional?” The U.S. Constitution provides a clear framework for how laws are made, who has the authority to create them, and what checks exist along the way. The following flowchart illustrates this process step by step, with references to specific constitutional provisions.
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Here is a brief examination of each step of the process for checking the constitutionality of laws.
Step 1:
Was the Law Passed By Congress?
The Constitution vests all legislative power in Congress. Article I, Section 1 makes it clear that only Congress has the authority to make federal laws. If a law was not passed through this body, it is unconstitutional from the start.
Step 2: Does Congress have Delegated Authority?
Even if Congress passes a law, it must fall within the powers granted to it by the Constitution. These delegated powers are primarily found in Article I, Section 8, which lists specific areas like taxation, regulating commerce, declaring war, and establishing post offices. If the law goes beyond these delegated powers, it is unconstitutional.
Step 3: The President's Role
After Congress passes a bill, it goes to the President. Under Article I, Section 7, the President may:
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Sign it into law, making it official.
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Veto it, returning it to Congress.
If vetoed, the law is not valid unless both houses of Congress override the veto by a two-thirds vote. If they do not, the bill fails.
Step 4: The Ten-Day Rule
The Constitution also outlines what happens if the President does nothing:
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If 10 days pass while Congress is in session and the President does not sign or veto, the bill automatically becomes law.
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If Congress adjourns before the 10 days expire, the bill does not become law. This is known as a pocket veto.
Step 5:
Final Determination- Is it Law?
If a bill has followed all the constitutional steps—passage by Congress, proper authority under Article I, Section 8, and correct handling by the President—it is legally a law.
Step 6:
What about the Supreme Court?
The final section of the flowchart addresses a common misconception: whether the Supreme Court has the power to determine if laws are constitutional. According to the Constitution:
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The Supreme Court has no authority to legislate (Article I, Section 8).
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Its role, as outlined in Article III, Section 2, is limited to specific cases and controversies—not to rewriting or vetoing laws.
This perspective challenges the modern practice of judicial review, where the Court interprets laws and strikes down those it deems unconstitutional. The chart emphasizes a strict reading of constitutional roles, suggesting that ultimate authority over constitutionality rests with the people and their elected representatives—not the judiciary.
JUDICIAL REVIEW-
CHALLENGE TO THE ABOVE FLOW-CHART
The above flowchart pushes back against judicial review. However, some argue that there are strong historical and constitutional arguments that support it. Here’s a breakdown of the main arguments in favor of judicial review:
The Supreme Law of the Land
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Article VI, Clause 2 (The Supremacy Clause) states that the Constitution is the “supreme Law of the Land.”
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This means that when ordinary laws conflict with the Constitution, the Constitution must prevail.
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Judicial review is the mechanism by which courts ensure that unconstitutional laws are not enforced.
The Judiciary's Duty to Apply the Law
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Judges are sworn to uphold the Constitution.
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If a law contradicts the Constitution, judges cannot faithfully apply both.
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Therefore, they must apply the Constitution and disregard the conflicting law.
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This reasoning was famously articulated by Chief Justice John Marshall in Marbury v. Madison (1803), the case that established judicial review.
Checks & Balances
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The Founders designed the government with three branches—legislative, executive, and judicial—each checking the others.
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Without judicial review, Congress could pass laws outside its authority and the President could enforce them unchecked.
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Judicial review prevents legislative and executive overreach, helping maintain balance among the branches.
Protection of Individual Rights
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The Founders designed the government with three branches—legislative, executive, and judicial—each checking the others.
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Without judicial review, Congress could pass laws outside its authority and the President could enforce them unchecked.
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Judicial review prevents legislative and executive overreach, helping maintain balance among the branches.