Remedies For Unconstitutional Law

An unconstitutional law is one that is contrary to the provisions of the Constitution. States have the power to nullify unconstitutional laws. However, before a remedy is effective, it must address the unconstitutional law and achieve its legislative purpose. The following article discusses various remedies for unconstitutional laws.


Citizens can challenge unconstitutional laws by civil suits

In the United States, citizens can challenge unconstitutional laws by filing civil suits. Under the Constitution, a citizen can file suit to seek money damages from a local or state government official. Under section 1983, state and local officials can be held liable for unjust actions in federal court. This federal law has been on the books since 1871. It was originally enacted to combat the lynchings of newly freed Black citizens.

States have power to nullify unconstitutional laws

Whether or not states have the power to nullify unconstitutional federal laws depends on the state. While Congress cannot mandate specific laws to be followed in all states, a state can refuse to enforce a federal law, so long as it does not violate its constitution. In the past, states have used their power to challenge the constitutionality of federal laws, but this power has dwindled over the years.

Because of the widespread use of the term “nullification” in recent decades, it is usually used in a less restrictive context. For example, it has been used to describe cities’ ability to declare themselves a sanctuary for illegal aliens. Under the Supremacy Clause, however, states cannot outright defy federal law. Therefore, protests in the name of nullification are merely empty words.

Effective remedies address unconstitutional law

Effective remedies address unconstitutional law are different from statutory remedies. They are designed to ensure that the government respects constitutional values as well as statutory rights. If a statute is unconstitutional, a person may sue in court to get a remedy. But such remedies are not available for every violation. Nevertheless, there are some cases in which a judge-made remedy may be the appropriate remedy.

Remedy should further legislative objective

A remedy for constitutional defects should be tailored to the broader public interest, which is to have the government act in accordance with the Constitution and preserve aspects of the law that are constitutional. The public’s interest in having legislation conform to the Constitution is a valid one, and the public has a right to benefit from the legislation as a whole. In this vein, courts play a different institutional role than legislatures.