We have so far had a couple of questions of the form "is 'X' constitutional?" (as applied to USA). Ex: Is the PATRIOT ACT constitutional?

  1. Should such questions be in scope at all?

    The cons include the fact that there are only 2 kinds of answers: "Nobody knows until SCOTUS rules on it" or "Yes as per SCOTUS case ABC".

    The caveat is that the 'X' in question may not neatly align to existing SCOTUS rulings.

    The pros include the fact that there are only 2 possible good answers (see the cons) - "Yes" (include proof) and "Nobody knows".

  2. If not, is there any way that such a question can be salvaged? (if you claim that "yes", please provide an example edit of how to make the above Patriot Act question salvageable).

3 Answers 3


I think these types of questions should be allowed, but we need to ensure that they are constructed in such a way as to rely on the fact that is available. Specifically, answers should be a discussion of existing Court precedent and free of speculation about how the Court might act in the future.

I think both the edits that were made to this question and my answer to it are a good example of how these questions can be successfully rewritten and how they can be answered in an effective manner.


Yes, these questions can be salvaged.The simple fix is "What are the arguments for why X is unconstitutional." If the Supreme Court or a lower court has ruled against those arguments, then that can be noted in the answers. If the issue has never been taken to court, then the arguments can be taken from advocacy groups. Either way, a definitive answer can be arrived at.

This also avoids those pesky situations where the Supreme Court has shown that we are a nation of men, not laws. (I.E. DUI checkpoints and the 4th Amendment, Jury Nullification, etc.)

  • 3
    I think we want to stay away from questions that have never been argued before the Court before as they are the only body that can authoritatively speak to the validity of the argument. If there is precedent on a particular topic a good answer will cite that. If there is not, the question should be closed as the information is unavailable. Jan 4, 2013 at 16:18
  • @MichaelKingsmill, Why shouldn't we present arguments that were presented to the Court? Denying answers with those sorts of references will make it harder to find what was argued, and what the court did/didn't reject. What "information is unavailable"? I think you miss the point, if the question is about what argument is there why X provision of a law is unconstitutional, information certainly is available. Either that argument was presented in court, or citing sections of the constitution that those provisions violate. The SC changes their mind.
    – user1873
    Jan 4, 2013 at 16:44
  • I think it is fine to characterize the arguments made by either side in a case before the Court as it informs that decision as you point out. I was just saying if the Court has never heard anything on the topic, it would be best to leave media speculation and the like out as those opinions wont relate to the details of a specific case/law and are no more authoritative than you or I sharing our own opinions. Jan 4, 2013 at 17:41
  • Arguments are made by lawyers, they aren't made by SC justices. A lawyer who can cite previous case law, and show how the courts have ruled in similar cases, and have made similar interpretations of the constitution are just as authoritative as I am. Just because the Patriot Act hasn't been challenged in court, doesn't mean we cannot determine arguments that would be made by each side for why it is/n't constitutional.
    – user1873
    Jan 4, 2013 at 17:46
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    Allowing such information makes the question far too broad to be usefully answered here. The specific details of any challenge are of paramount importance to the decision and cannot be viewed in a vacuum independent of any proceeding. The SC could uphold/strike-down portions of the law, the case could be thrown out for a variety of procedural reasons, specifics of an eventual challenge may have extenuating circumstances that limit the justices decision to the one case, external of other precedent a la Bush v. Gore. Talking about hypothetical cases is pure speculation and too broad for SE. Jan 4, 2013 at 17:54
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    The problem is Constitutional law is a complex and technical topic, and opinion of somebody without relevant training has very high chance of being wrong just because he does not have enough knowledge on the subject. So the only proper answer to such question would be a quote from a knowledgeable lawyer specializing in constitutional law. Which is fine but on most cases what would happen instead is people expressing their opinion why X should be unconstitutional according to their political preferences, which is much less useful. This would be very hard to turn into a productive answer.
    – StasM
    Feb 23, 2013 at 22:01

I just noticed some of these questions and came to ask the same question!

I think in most cases, the question can stay, but really should be reworded to ask "what are some arguments for/against constitutionality" rather than literally "is it constitutional" as you and others have already stated, the only people that can answer that are the courts.

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