The Constitutionality of Laws

There are, in general, four ways for a law to be ruled as unconstitutional.

(1) The law violates a specific right explicitly protected by the Constitution (e.g. the right to bear arms, or the right to not have troops quartered in one's house during peace-time).

(2) The law violates a specific right implicitly protected by the Constitution (e.g. the right to have children).

(3) The law violates a general right explicitly protected by the Constitution (e.g. the right to equal protection under the laws, the right to due process).

(4) The law violates a general right implicitly protected by the Constitution (e.g. the right to privacy).

It should be noted that it is sometimes ruled that a law in itself does not violate one of these rights, but that the law as it is applied violates one of these rights.

Examples of laws that are unconstitutional on the basis of (1)-(4) above:

(1) A law requiring people to quarter troops in their houses during peace-time (violation of 4th Amendment).

(2) A law prohibiting people from having children (violation of right to have children implicit in 5th and 14th Amendments)

(3) A law banning homosexuals from renting apartments (violation of "Equal Protection" clause of 14th Amendment).

(4) A law banning the use of contraception by married couples (violation of the right of marital privacy implicit in 3rd, 4th and 8th Amendments).

It is important to note here that the violation in question in (3) is not a violation of a right to rent an apartment. It is a violation of the right of homosexuals to be treated equally, by the laws, with non-homosexuals. If other people may rent apartments, then homosexuals may rent apartments.

Laws that are directed only against one group (because of sex, race, class, religion or sexual orientation, for example) are unconstitutional because they are discriminatory in their form, and not because of the kinds of actions that they prohibit. One does not even need to know what the law in question is, in order to know that such a law is unconstitutional, because its form (intentionally directed against one group) is discriminatory.

The exception here is laws that are directed against minors.

Furthermore, as stated above, it can be ruled that a law is unconstitutional because although it is not discriminatory in its content, it is applied in such a way that it is discriminatory.

Take, for example, a law that prohibits non-married couples from living together. Such a law, at least prima facie, is not prohibited by the Constitution. It is important to understand this claim. The Constitution is silent, for the most part, about many areas of life that may be regulated by states' laws. So long as specific rights are not violated, or  general rights are not violated, the Constitution does allow states to create many laws of varying kinds. This law, at least prima facie, would be such a permitted law.

However, if it transpires that the law is only invoked when gay or lesbian couples are found living together, then the law may be deemed unconstitutional in its application, since it violates the Equal Protection clause of the 14th Amendment. A law that simply said "homosexual couples may not live together" would be obviously unconstitutional, because of its violation of the same "Equal Protection" clause.

The question that remains, at least in this case, is whether the law, if equally and fairly applied to all non-married couples, could be shown to violate any specific or general rights protected by the Constitution. For example, does it violate the  general, implicit right to marital privacy? In the case of this particular general implicit right, the rulings of the Supreme Court may be ambiguous. (In the case of the rulings of the Court concerning the Equal Protection clause, the rulings are not, or at least not normally, ambiguous.)

Here it is worth noting the concurring opinion of Justice Douglas in Roe v. Wade (not everyone would agree with this):

"[The] Ninth Amendment obviously does not create [i.e. invent] federally enforceable rights [however] a catalogue of [the rights acknowledged by it] includes customary, traditional and time-honored rights, amenities, privileges, and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the Constitution. Many of them in my view come within the meaning of the term "liberty" as used in the 14th Amendment.

First is the autonomous control over the development and expression of one's own intellect, interests, tastes, and personality. These are rights protected by the First Amendment and in my view they are [absolute]. Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. These ["fundamental"] rights, unlike those protected by the First Amendment, are subject to some control by the [police power]. Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf. These rights, though fundamental, are likewise subject to regulation on a showing of ["compelling state interest"]. [A] woman is free to make the basic decision whether to bear an unwanted child... The State has interests to protect. [Voluntary] abortion at any time and place regardless of medical standards  would impinge on a rightful concern of society. The woman's health is part of that concern: as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as [a medical one]." (p. 426)