Monday, May 11, 2020

Unconstitutional Even If You Can See It

Nobody intended to set these traps for you, but they exist.  I want to prepare you to recognize them.  These "traps", which are unusual among traps in that they form by accident, appear throughout the laws of the individual states and of the United States.  If you know how they work, you may be able to protect yourself from them.

The essence of the trap is this: though provisions of these laws are frequently unconstitutional -- they have often even been notoriously declared unconstitutional by an appellate court with the requisite jurisdiction -- they remain "on the books" until they are removed by the legislature by whose authority they were made.  By this, I mean that if you read your state's statutes (or those of the United States), you will see the unconstitutional parts just as you see the rest of them.

Some states, such as Pennsylvania, have been kind enough (though not always) to post notices informing us that the unconstitutionality of particular laws still found "on the books" has been settled since before I was born (as in the example found behind the previous link).  Most states, I think, have been somewhat less courteous (the magnificent State of Indiana, which is my own state, is one of the latter) to their own people or to their fellow Americans at large by flagging those of their laws that are known to be unconstitutional.  Some of the time, the unconstitutionality is pretty obvious (even when it appears in a state's own constitution), but the rest of the time, anyone reading statutes without the assistance of annotations* should remember: "laws" that you see on the page or on the screen could be unconstitutional, and those that are will not necessarily be marked with any perceptible sign of their unconstitutionality.  Be cautious.

And be aware: when a statutory provision that supposedly establishes something as a crime does not express in any useful way what conduct it criminalizes, that is a red flag.

* Annotations to statutes are helpful in that they can at least call attention to what courts have already managed to recognize as unconstitutional.  However, the information that they provide can only be as correct as the courts have been.  These annotations are designed for the use of the legal profession, for which anticipating what courts will consider the law to be in the future (by understanding how courts have previously dealt with the same or similar legal issues) is necessary in order to provide any kind of reliable assistance to clients.  For that use, the annotations serve their purpose.  However, for those who also see a need to maintain a more civic-minded, justice-seeking, truth-and-accuracy-friendly understanding of our constitutions and other law, court decisions may be neither an adequate nor an entirely reliable guide to understanding a constitution or a part of it.

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