THE LEGISLATIVE STATUS OF AN UNCONSTITUTIONAL STATUTE

Authors

Earl T. Crawford, Member, Missouri bar; University of Kansas

Abstract

Once a statute has been found to violate some constitutional provision, a legislature is faced with a difficult problem of how to change the statute so as to effect the desired policy and still not violate constitutional principles. The general nature of this problem is suggested by such inquiries as these: Will the subsequent overruling of a previous judicial decision declaring a statute unconstitutional require any legislative action to put the statute into effect? Can a statute, which has been held violative of the constitution, be amended by corrective or curative legislation without complete re-enactment if the statute as amended is to become operative? Can a constitutional amendment be used to revive an unconstitutional law without further legislative action? Does the nature of the constitutional defect make any difference so far as the need for complete re-enactment is concerned? Is the nature of the amending process of any real significance?

It is the purpose of this discussion to answer, if possible, these and other related questions. No attempt will be made to treat the various problems which involve the effect of the statute on persons or property, either before or after the removal of the constitutional vice, unless incidentally insofar as legislation is required to place the act in operation. The basic or underlying nature of the unconstitutional statute from the standpoint of the necessity for legislative action to give it effect as law will be the general theme of this study.

Recommended Citation

Earl T. Crawford, THE LEGISLATIVE STATUS OF AN UNCONSTITUTIONAL STATUTE, 49 Mich. L. Rev. 645 (1951).
Available at: https://repository.law.umich.edu/mlr/vol49/iss5/2