If you frame it as a Constitutional question it has to be defined by the supreme court. Right.
If you frame it as a question of "what's the current law" then it is something that has to be defined in the legislature. Right.
If you look at reality, then it is really going to come down to the officer of other government "functionary" that you have an interaction with knowing the status on both of the above.
Which of the above scenarios do we want to act on to guarantee our rights in all 50 states. I have to say that now is not the time.