# What determines Whether something is "Constitutional" in the USA ? **URL:** \ **Category:** Great Debates\ **Created:** [July 1, 2002, 8:04pm UTC](https://boards.straightdope.com/t/what-determines-whether-something-is-constitutional-in-the-usa/116893 "2002-07-01T20:04:57Z")\ **Posts on this page:** 3\ **Page:** 3
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [July 3, 2002, 7:42pm UTC](https://boards.straightdope.com/t/what-determines-whether-something-is-constitutional-in-the-usa/116893/41 "2002-07-03T19:42:10Z")
> [@](#): > > \*Originally posted by Jodi \* > \*\*Look, I’m not going to reinvent the wheel here. Your views on this subject are pretty well known. So, I assume are my own – at least from the above, if not from any other thread. Anyone caring about the subject of jury nullification can bore themselves senseless with earlier threads on the subject, but I see no need to reinvent the wheel yet again. If anyone _does_ care, do a seach on “jury nullification” or, better yet, look at any one of the dozens of threads on how to get out of jury duty. \*\* That’s fine, but I wasn’t trying to hijack the thread. I believe that the ultimate Constitutionality of a law can be determined by an individual’s conscience, and that determination can be acted through on jury nullification. It was a perfectly valid discussion regarding the OP. Btw, I can’t find a thread where we debated jury nullification before - do you happen to remember what the title was, or was it lost in the great server switch? ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [July 5, 2002, 10:24pm UTC](https://boards.straightdope.com/t/what-determines-whether-something-is-constitutional-in-the-usa/116893/42 "2002-07-05T22:24:01Z")
> [@](#): > > \*Originally posted by Jodi \* > My peeve: People declaring something is or is not constitutional, when what they mean is that _in their opinion_ it _should or should not be_ constitutional. “‘In God We Trust’ is unconstitutional!” “Discrimination is [in all cases] unconstitutional!” “Flag burning is unconstitutional!” One my pet peeves: people telling other people what they mean. > [@](#): > > But it is the Supreme Cour that decides what is constitutional. At the end of the day, theirs is the only opinion that counts in any practical sense. There is big difference between whose opinion matters as a practical matter, and which opinion is correct. I may think someone is guilty or innocent, but it is the jury’s opinion that matters. That doesn’t mean that the jury actually is correct. It is possible for a jury to find someone guilty, when that person is innocent, just as it is possible for the Supreme Court to decide a question of constitutionality incorrectly. Now, if you wish to base your opinions regarding constitutionality solely on the basis of what the Supreme Court says, that is valid. But it is not valid to insist that everyone else do so. > [@](#): > > You, as a juror, undermine the judicial system when you take it upon yourself to decide what ought or ought not be the law. If the judicial system is immoral, then it deserves to be undermined. > [@](#): > > The jury nullificationist places him- or herself above the legislature, the judiciary, and the rest of society to take upon him- or herself the role of deciding – alone – the legitimacy of the law. That’s ridiculous. Everyone has the obligation to evaluate laws’ morality. A person who claims to have as much right as anyone else to decide what is moral is not putting himself above everyone else; he is putting himself on the same level. It is people like you, who claim that certain groups have rights not shared by others, that are putting some people above others. ---
**Author:** ![rsa](https://avatars.discourse-cdn.com/v4/letter/r/839c29/32.png) [@rsa](https://boards.straightdope.com/u/rsa)\ **Post date:** [July 6, 2002, 3:20pm UTC](https://boards.straightdope.com/t/what-determines-whether-something-is-constitutional-in-the-usa/116893/43 "2002-07-06T15:20:31Z")
To address the specific example in the OP, I think a point is being missed here. The Supreme Court is not likely to say that the phrase “under God” is constitutional on its face. They are likely to say that it is a _de minimus_ violation and therefore allow it to remain because they can’t be troubled to waste their time on such trivialities. (Although I don’t understand why they would agree to hear a case on trivialities in the first place.) Or, as with IGWT, they may say that since the phrase has been around for quite a while, its use has become secular and is not “religious”. I don’t agree with this reasoning, but the point is that they are not likely to give carte blanche to have “under God” inserted into every government document and proclamation. [Previous page](https://boards.straightdope.com/t/what-determines-whether-something-is-constitutional-in-the-usa/116893.md?page=2)