Illegal vs Unconstitutional

  • In U.S. politics what is the difference between something being illegal vs unconstitutional?

    My current understanding (as a non-US person):

    • Wouldn't something illegal automatically be unconstitutional (laws flow from the constitution), the legality overrides the constitutionality.
    • If something is unconstitutional there isn't necessarily a law making it illegal, as a matter of practicality.

    The American legal code is separate from the constitution, though it cannot violate the limits set in the constitution.

  • SoylentGray

    SoylentGray Correct answer

    9 years ago

    Illegal means it is against the law and there are civil or criminal penalties associated with it. However there is nothing in the constitution that would prohibit the sale/consumption of alcohol by minors (just an easy example). In fact until 1919 only a few states had any drinking age limit. This is a law but neither barring it nor allowing it violates the constitution.

    There are things that are unconstitutional that are not illegal. For instance there is no penalty for members of congress or a president for passing/signing a law that blatantly infringes a constitutionally protected right. There are not penalties associated with violating the constitution.

    The Constitution is written as a limit and basic guide for running the government of the United States. It provides the limits of the power and provides some activities where the government has responsibilities. Laws are written as limits on individuals. Part of the codification of laws is including the penalties that may be prescribed in the event of violation, as well as exemptions to the law. For instance the killing of another person through violence is illegal. However there is an exemption if you are in imminent danger from the person and are unable to escape.

    Constitution is a META law.

    @DVK the constution has some meta laws, but it's not all meta laws. There are laws regarding how new states are added, there are laws regarding how electors are elected, there are laws requiring you to have available access to an attorney, There are laws requiring people convicted in one state, to be returned to that state to be tried, There was even once a law prohibiting the sale of alcohol

    Might be better to think of it as "the laws the government has to follow" as opposed to "the laws that individuals have to follow, even as they go about conducting government business".

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Content dated before 7/24/2021 11:53 AM