OK. I was responding to parent, which stated there is a difference between a judge's interpretation of constitutionality and literal constitutionality - i.e. that a law can be unconstitutional regardless of whether a judge interprets it to be such. Which is obviously nonsense.
> They're saying the Citizens United ruling was of the first type, not the second.
You seemed to miss that, so I was trying to clarify it.
I did not miss that. I was responding to it. Perhaps you are not understanding what I am saying.
How did they determine CU was of the first type? Did they interpret it to be of the first type, or is there an objective view of it that simply makes it so? And if the latter, where is this objective view located that all can see? And why did 4 of the 5 justices not have access to see the objective view?
In other words: deciding something is unconstitutional and interpreting something as unconstitutional are exactly the same thing. There is no such thing as unconstitutional outside of interpretation.
> Citizens United was based on the law being [objectively] unconstitutional, not the court’s interpretation of the law [being that it is an unconstitutional one].
I read:
> Citizens United was based on the law being unconstitutional [in the opinion of the court], not the court’s interpretation of [how] the [constitutionally-compatible and therefore still on the books] law [should be applied to Citizens United].
OK. My interpretation seems to be much closer to the words as written. I'd give myself credit for being a textualist, if I didn't think that label was just a scam.
In any case, your read is that the court had an opinion about the constitutionality of CU (which is exactly what it had). And my read is exactly the same: opinion = interpretation.
A law can be so blatantly and obviously unconstitutional that everyone can see it and refuses to arrest or charge people for breaking it. It's pretty easy to construct test examples, "Bob Smith must pay 2x tax", or "Black people can't do X".
The supreme court doesn't make a law unconstitutional. It already was or wasn't. They provide notice to the system that the law will now be seen as unconstitutional or not.
If they get it wrong (lets say we know because another SC overrules them in the future) it doesn't change the constitutionality of the law, just whether it's enforceable or not during those periods.
>The supreme court doesn't make a law unconstitutional. It already was or wasn't.
No. If the Supreme Court is asked whether a law is constitutional or not, they form an opinion on whether it is or is not. The law exists as law up until the moment the Supreme Court is asked and interprets it one way or the other. It does not exist as one or the other until that moment, even though it is the law, and after that moment it only exists as one or the other based upon the majority opinion of 9 people. Laws are not discovered to be constitutional or unconstitutional, because interpretations are not discovered, they are formed.
>A law can be so blatantly and obviously unconstitutional that everyone can see it and refuses to arrest or charge people for breaking it.
That doesn't make the law unconstitutional. It just makes it a bad law. Bad laws can also be constitutional.
So I'm not sure what your point is.