I did not miss that. I was responding to it. Perhaps you are not understanding what I am saying.
How did they determine CU was of the first type? Did they interpret it to be of the first type, or is there an objective view of it that simply makes it so? And if the latter, where is this objective view located that all can see? And why did 4 of the 5 justices not have access to see the objective view?
In other words: deciding something is unconstitutional and interpreting something as unconstitutional are exactly the same thing. There is no such thing as unconstitutional outside of interpretation.