Let’s take the law about virtual child porn for example. The Supreme Court ruled that images of virtual (ie, not a real child) porn were legally protected and therefore OK.
I assume that even if I was arrested for that, once the Supreme Court said, hey, it’s legal (in someone else’s case) then I would be officially off the hook, right?
BUT!
The Supreme Court doesn’t get a case until other courts have a whack at it.
So what if one of the subordinary courts to the SC ruled that the law was unconstitutional? While we’re waiting for the SC to make up its mind, can I do the action? If I get arrested, can I say, hey, it’s cool, the court ruled that way, EVEN IF THE SC CHANGES THE RULING?
You see what I’m asking? Do we have to wait for the SC to rule on a case before we can ignore an unconstitutional law? Or does the first court to rule give a free pass to everyone?
But if a circuit court (or some other local court) rules that a law is unconstitutional they can rule that law void in their jurisdiction. That would get you off the hook.
Though I’m pretty certain a court could hold the law in abeyance until review at a higher level. And I’m damn certain that one would be.
Any court can make a ruling on the constitutionality of a law – in fact, to get a constitutional case to SCOTUS (in the absence of the rare original-jurisdiction cases), it’s necessary that an argument be made, normally at the trial level, that the statute or its application violates the constitution, and then appeal the ruling up the ladder of appellate courts.
Right at the moment, there are cases in which an action is unconstitutional in only some states, because a Federal circuit court with jurisdiction over those states has ruled one way, and another Federal circuit court, with jurisdiction over other states, has ruled the opposite way, and SCOTUS has not yet addressed the question. (The Pledge case comes to mind – only in the Ninth Circuit states is the requirement of a school district that the Pledge be recited deemed a violation of the Constitution, though there is SCOTUS precedent dating from 1941 that no schoolchild can be compelled to recite it.)
There was one case, of which the details do not come to mind, in which an appeal was taken directly from the Cincinnati police court to SCOTUS, there being no intermediate levels of appeal available by an odd quirk of appellate law.
A court’s jurisdiction is defined by law. In New York, for example, the justice courts have jurisdiction only over the town or village for which they were elected (though they have limited initial jurisdiction within that county – a J.P. can arraign an accused person for a crime outside his town, then the case goes to the appropriate town court for trial). City courts only have jurisdiction in that city, County courts only in that county. But the “Supreme Court” (which is actually two steps down from the top) is located in each county but has statewide jurisdiction. But suppose you were haled into town court in and for the Town of Monticello, in the Catskills, and advance the argument that the circumstances in which you were arrested violate the Fourth Amendment. The judge rules on that argument, and his decision has validity only in the Town of Monticello – though it’s precedent to be considered (but not binding) in other courts in similar circumstances.
If you were found guilty and sent to jail for a crime under a law that was later declared to be unconstitutional, you would have an immediate right to a rehearing on the case, with a dismissal if the ruling of the court finding the law unconstitutional was binding over the jurisdiction sentencing you.
But I’m asking about the other way around. Say YOU were the one found guilty, and then a higher court found the law unconstitutional. You would be set free. So I read about it in the newspaper and say to myself, “Self, I see that this law is unconstitutional! Yippee!” I then go out and do whatever the law stops me doing. THEN the Supreme COurt steps in and overrules the court and says the law IS constitutional.
You probably would not be set free as long as the state was continuing to appeal your case. The sequence would go trial, conviction, sentence (at which time you’re in prison), appeal by you, finding by appeals court that the law is unconstitutional, appeal to SCOTUS, ruling by SCOTUS that the law is constitutional. Until SCOTUS rules you’re behind bars. IANAL etc.
If the state doesn’t appeal and you are released, or if SCOTUS declines the appeal and you are released, then SCOTUS accepts another challenge to the same law and finds it constitutional, I believe double jeopardy applies and you can’t be re-arrested for the original criminal act. If you commit the act again after SCOTUS reverses (or in another jurisdiction) you can be arrested. My non-lawyerly opinion is that if you did it between the appeals court decision and SCOTUS’s later decision is that you would be OK since the act wasn’t illegal at the time you commited the act.
I think the situation he’s defining falls under the ‘no ex post facto’ clause.
If something is not illegal and you do it, then it’s made illegal, you can’t be held criminally liable for performing the action prior to the action being made illegal.
Not true. All this means is that you would now have the right to petition the local court for a rehearing on your case, with a fairly strong argument. But the local prosecutor would be able to argue against this, and might even try various ways to keep you in jail, like charging you with some other, closely-related offense.
For example, the Supreme Court declared sodomy laws unconstitutional back in July. But there are still people who were convicted of sodomy in American prisons. Also, at least a couple of southern states (VA & SC, I think) are still arresting & charging people for “soliciting” sodomy. Claiming that the SC ruled sodomy laws unconstitution, but that they have separate laws making solicitation of sodomy a crime. And that the Supreme Court hasn’t ruled those laws unconstitutional (yet).
Ah, but the action was made illegal by the legislature antecedant to the act itself. So it’s not ex post facto.
Does the court’s declaration that the law is unconstitutional serve as a complete reversal of the legislature’s actions? If it does, by what Constitutional powre is this so? Suppose we’re talking about a federal district court - does one federal district judge have the power to negate an act of Congress across the entire country? If I’m in the Fourth Circuit, can I rely upon an Eleventh Circuit ruling that the law is unconstitutional?
I just read an article about this issue a few days ago, and I’ll see if I can find it. But the upshot is, insofar as I recall, is that the question the OP asks is, in fact, not a matter of settled law. There is nothing explicitly preventing a prosecutor from charging for conduct that was committed during the pendancy of an apellate court’s overturning ruling if the law in question was ultimately upheld. But that principle leads to patently absurd results.
The article mentioned a 1982 case involving the regulation of corporate takeovers, where the state had a law that forced a company trying to take over another to publish notice of a tender offer at least x days in advance of the offer’s being effective. The company claimed that the state law burdened interstate commerce and was unconstitutional. The trial court found that the law was unconstitutional, and it was appealed to the Supremes. In reliance on the trial court’s ruling, the company made a tender offer without the requisite notice.
By the time the case got to Washington, the tender offer had been withdrawn. So there was some noise about it being moot. However, the Court noted that the case was not moot because, if it reversed the lower court’s finding, the company would be exposed to criminal liability. While admittedly dicta, this language indicates that the Court felt that had they gone the other way, it would be permissible to prosecute the company for violation of the law, even though the only existing court ruling at the time said the law was unconstitutional.
There are arguments to be made each way. But the author’s conclusion was that this is an unsettled question.
Here is a way to BROADLY look at it. Though it doesn’t quite work out as stated…
The Supream Court declared the dealth penalty unconstitutional. So all the people on death row were commuted to life imprisonment. When the Supream Court reversed itself those people who had been sentenced to death, then commuted to life, were not re-sentenced to death.
It doesn’t quite work out as the Supream Court actually said "the death penalty as currently applied was not constitutional. Thus leaving a doorway open for the dealth penalty to be inacted if it was inacted differently.
**
As are most things in U.S. law, it probably kinda depends.
First, I see the issue not so much as whether the law is constitutional or unconstitutional per se but as a question of notice. This, in turn, depends on when and under what conditions the case is considered “good law.” For example, I believe that under the federal system, a published appellate court decision remains good law after the Supreme Court grants cert. The case remains binding precedent in that circuit until the actual opinion overturning the decision becomes final. It follows that you would not have notice that the law which had been struck down was actually constitutional since, in fact, it was not constitutional in that jurisdiction at that time.
To see this more clearly, assume that there is an appellate decision striking down a law in one jurisdiction but SCOTUS doesn’t take it. Now suppose that there is a later case affirming the law in a different circuit. SCOTUS takes the second case and upholds the law. Though the first case has now been effectively overruled and the law upheld in ALL U.S. jurisdictions, people in the first jurisdiction had no notice that the law was constitutional and enforceable. Thus, the the law would be constitutional, enforcing it in that jurisdiction for that period would not be.
Maybe this is a hijack or just a stupid question, but aren’t all laws constitutional until they are ruled unconstitutional? Legislative makes’em, executive inforces’em and judicial checks the math.