# Is it appropriate for the legislature to debate the constitutionality of a law? **URL:** \ **Category:** Great Debates\ **Created:** [January 15, 2016, 5:59pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256 "2016-01-15T17:59:09Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [January 15, 2016, 5:59pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/1 "2016-01-15T17:59:09Z")
I’m actually trying to settle an internal debate that arose as I read an email I received today. I get a weekly summary of specific topics being discussed in the Missouri Legislature. Today’s said in part " In the Senate Ways and Means Committee this week, Senator Schaefer presented his legislation, SB 575, to eliminate the earnings taxes in St. Louis and Kansas City. Senator Schaefer maintains that the 1-percent earnings tax is unconstitutional and could be overturned in court." And my first response was “then let it be addressed in court. It is not up to the legislative branch to repeal a law because they believe it to be unconstitutional. It is not up to them to decide such matters.” And yet…I also believe that they shouldn’t pass laws they know to be unconstitutional in the first place, just to waste everyone’s time having a court strike it down in two years. I believe it’s wholly appropriate and necessary as a legislator to say that a proposed law unconstitutional on its face and not vote for it for that reason alone. Yet I have a problem with them repealing a law for ostensibly the exact same reason. Is this hypocritical? Is this contradictory? What do you think? ---
**Author:** ![Inner\_Stickler](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inner_stickler/32/318_2.png) [@Inner\_Stickler](https://boards.straightdope.com/u/Inner_Stickler)\ **Post date:** [January 15, 2016, 6:22pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/2 "2016-01-15T18:22:54Z")
I think it’s a little weird to single out unconstitutional as a reason not to repeal a law. I’m no lawyer but I thought a legislature could repeal any law that they wanted as long as they’ve got the votes to do it and for any reason. ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [January 15, 2016, 6:28pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/3 "2016-01-15T18:28:42Z")
Well, the Constitution is what the President and Congress take an oath to uphold. (I’m not sure about state legislators.) I think anyone involved with lawmaking should take seriously and solemnly their duty to keep laws within constitutional limits, including when they’re considering overturning a law. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [January 15, 2016, 6:31pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/4 "2016-01-15T18:31:06Z")
I’m not saying it’s not within their power. It is. So long as they have the votes they can do it because they don’t like that the statute isn’t written in iambic pentameter. But the legislative branch doesn’t determine whether a law is constitutional. So I guess I’m trying to rectify why I feel that repealing a law for that reason is “wrong” when I’d clearly support them refusing to initially pass a law for exactly that reason. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [January 15, 2016, 6:33pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/5 "2016-01-15T18:33:10Z")
The constitution is the law of the land, any legislator who votes for something he considers unconstitutional is breaking his oath of office and should resign. Thinking a judge will substitute his own will for the constitution and declare a valid law unconstitutional is different. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [January 15, 2016, 6:35pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/6 "2016-01-15T18:35:55Z")
From the [Missouri Constitution, Article III, Section 15:](http://s1.sos.mo.gov/CMSImages/Publications/MissouriConstitution_05.13.2015.pdf) > [@](#): > > Every senator or representative > elect, before entering upon the duties of his office, shall take and subscribe the > following oath or affirmation: “I do solemnly swear, or affirm, **that I will support the > Constitution of the United States and of the state of Missouri**, and faithfully perform > the duties of my office, and that I will not knowingly receive, directly or indirectly, > any money or other valuable thing for the performance or nonperformance of any act > or duty pertaining to my office, other than the compensation allowed by law.” It is absolutely appropriate for a state congress person to evaluate their actions and votes in terms of constitutionality. Saying that duty between new and existing laws is different doesn’t make sense. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 15, 2016, 6:36pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/7 "2016-01-15T18:36:09Z")
This is really a bizarre question. > [@Enderw24](#): > > But the legislative branch doesn’t determine whether a law is constitutional. So I guess I’m trying to rectify why I feel that repealing a law for that reason is “wrong” when I’d clearly support them refusing to initially pass a law for exactly that reason. The legislative branch is not the _final arbiter_ of whether a law is constitutional, but that doesn’t mean they are not allowed to make their own determination. Presumed unconstitutionality is not just a valid reason to repeal legislation - which, after all, is a legislative act in the first place - it’s the _best_ one. Ideally, the courts should never have to step in. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [January 15, 2016, 7:10pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/8 "2016-01-15T19:10:28Z")
> [@puddleglum](#): > > The constitution is the law of the land, any legislator who votes for something he considers unconstitutional is breaking his oath of office and should resign. > Thinking a judge will substitute his own will for the constitution and declare a valid law unconstitutional is different. But that’s the distinction I’m trying to make. They’re not voting on a law when they believe that vote would create an unconstitutional law. There is a law. If they do nothing it will continue to be a law. But the argument being made is that they must act in order to end a law they believe to be unconstitutional. But the determination of whether a current law in unconstitutional isn’t up to the legislation. Again, they clearly have the right and the power to repeal any law that is within their power to repeal. But I don’t think they have the right to determine the constitutionality of a current law. So I’m not against the action. Just the rationale behind it. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [January 15, 2016, 7:23pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/9 "2016-01-15T19:23:32Z")
> [@Enderw24](#): > > But that’s the distinction I’m trying to make. They’re not voting on a law when they believe that vote would create an unconstitutional law. There is a law. If they do nothing it will continue to be a law. But the argument being made is that they must act in order to end a law they believe to be unconstitutional. > > But the determination of whether a current law in unconstitutional isn’t up to the legislation. > > Again, they clearly have the right and the power to repeal any law that is within their power to repeal. But I don’t think they have the right to determine the constitutionality of a current law. > > So I’m not against the action. Just the rationale behind it. I wouldn’t say they MUST act, but they may act and as part of that action can base it on their assessment of the constitutionality of a law. They absolutely have the power to make their own determination and draw their own conclusion as to the constitutionality of any law. Their assessment simply isn’t binding in the same way that a judicial action is. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [January 15, 2016, 7:23pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/10 "2016-01-15T19:23:40Z")
> [@Enderw24](#): > > But that’s the distinction I’m trying to make. They’re not voting on a law when they believe that vote would create an unconstitutional law. There is a law. If they do nothing it will continue to be a law. But the argument being made is that they must act in order to end a law they believe to be unconstitutional. > > But the determination of whether a current law in unconstitutional isn’t up to the legislation. > > Again, they clearly have the right and the power to repeal any law that is within their power to repeal. But I don’t think they have the right to determine the constitutionality of a current law. > > So I’m not against the action. Just the rationale behind it. This just doesn’t make any sense to me. Why should they be precluded from any particular avenues of discussion about enacting or repealing a law, or amending it for that matter? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 15, 2016, 7:42pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/11 "2016-01-15T19:42:06Z")
Yeah, others have said it quite well. Just because the legislature isn’t the final word on constitutionality, doesn’t mean that it is wrong of them to have an opinion on it. If a legislature thinks that a previous legislature exceeded its authority, why should someone have to sue in order for the statute to be voided? Having the legislature act to repeal something that is arguably a mistake just might save everyone a whole lot of time and effort. Now, there’s times when the legislature may want to push the bounds on whether some proposal is constitutional or not, with the expectation that courts may say they have gone too far. That can be acceptable, depending on the merits of any particular proposal. But to say a legislature is doing something wrong by using its lawful authority for this particular reason? I don’t get why that’s a problem. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 15, 2016, 7:58pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/12 "2016-01-15T19:58:54Z")
> [@Enderw24](#): > > Again, they clearly have the right and the power to repeal any law that is within their power to repeal. But I don’t think they have the right to determine the constitutionality of a current law. They don’t have the _legal mandate_ to determine the constitutionality of a law, but they certainly have the right. Deciding on policy and implementing it via legislation is the essential role of the legislature, and passing (or abstaining from amending) unconstititional laws is _good policy_. Why do you think legislatures take an oath to uphold the Constitution? It’s not just because it was carried over from judicial oaths of office and nobody bothered to rewrite it. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [January 16, 2016, 12:51am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/13 "2016-01-16T00:51:59Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They don’t have the _legal mandate_ to determine the constitutionality of a law, but they certainly have the right. . . . And, to my mind, some responsibility, too. I agree with **Ravenman** here: if they think an unconstitutional law was passed by a previous session of their body, they ought to take this into consideration. Maybe opinions will be split, and not enough of them will feel that way. Maybe the courts will rule differently from the legislative consensus. In the long run, that’s what Supreme Courts are for. But the legislature is part of the process, and it would be wisest of them to act in accordance with their constitutional conscience. ---
**Author:** ![Stringbean](https://avatars.discourse-cdn.com/v4/letter/s/d6d6ee/32.png) [@Stringbean](https://boards.straightdope.com/u/Stringbean)\ **Post date:** [January 16, 2016, 5:07am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/14 "2016-01-16T05:07:49Z")
So pass whatever shit you want and see what sticks? That’s real American. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 16, 2016, 5:11am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/15 "2016-01-16T05:11:01Z")
> [@Enderw24](#): > > And yet…I also believe that they shouldn’t pass laws they know to be unconstitutional in the first place, just to waste everyone’s time having a court strike it down in two years. I believe it’s wholly appropriate and necessary as a legislator to say that a proposed law unconstitutional on its face and not vote for it for that reason alone. Yet I have a problem with them repealing a law for ostensibly the exact same reason. Why do you think that? IOW, I think you have not thought out your position thoroughly. Make your case as to why those two instances are substantively different? Remember that striking down a law requires the enactment of a new law. Why make people suffer thru a law you believe to be unconstitutional for the time, expense and personal toll it can take to bring a suit to the Supreme Court? ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [January 16, 2016, 5:22am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/16 "2016-01-16T05:22:38Z")
I’d guess Senator Schaefer has other reasons he wants to eliminate that tax and the constitutionality is just providing his fellow legislators with a palatable excuse. ---
**Author:** ![Malden\_Capell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/malden_capell/32/5274_2.png) [@Malden\_Capell](https://boards.straightdope.com/u/Malden_Capell)\ **Post date:** [January 17, 2016, 1:56pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/17 "2016-01-17T13:56:11Z")
Happens frequently in the UK - the House of Lords Constitution Committee warns of Bills violating the constitution and invites amendments to do away the problem. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 17, 2016, 7:47pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/18 "2016-01-17T19:47:36Z")
A question for the OP based on a current example: if a state has a law banning same-sex marriage, should the legislature: 1. Conclude that the law is unconstitutional based on the recent SCOTUS decision and repeal it immediately; or, 2. Do nothing and leave the law on the books, denying gay folks the right to marry in their state, until someone challenged the law in court? Similarly, once the courts started striking down Jim Crow laws back in the 50s and 60s, should legislatures have started repealing their similar laws, even if they hadn’t been a party to the challenge to another state’s laws? Or should they have kept all their Jim Crow laws on the books once passed, and required the citizens of the state to be subject to unconstitutional laws until each one had been challenged in court and struck down? ---
**Author:** ![Horatio\_Hellpop](https://avatars.discourse-cdn.com/v4/letter/h/e5b9ba/32.png) [@Horatio\_Hellpop](https://boards.straightdope.com/u/Horatio_Hellpop)\ **Post date:** [January 18, 2016, 1:41am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/19 "2016-01-18T01:41:03Z")
> [@Stringbean](#): > > So pass whatever shit you want and see what sticks? > > That’s real American. Well, yeah, it kind of is. It’s not the legislature’s role to _determine_ whether a bill is constitutional, but it’s entirely their role to _assert_ that it is. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [January 18, 2016, 5:23pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/20 "2016-01-18T17:23:04Z")
> [@John\_Mace](#): > > Why do you think that? IOW, I think you have not thought out your position thoroughly. Make your case as to why those two instances are substantively different? Remember that striking down a law requires the enactment of a new law. Depends on what you mean by “striking down.” If the court strikes something down, there need not be a law passed either to accomplish that or to take the place of the struck down law. If the legislature does it, they aren’t striking something down. You are correct that they do have to enact a new law repealing the old law, but in doing so the argument isn’t about the constitutionality of the new law but rather of the old one. ’ My position is that the legislature is neither qualified to determine the constitutionality of a law nor is it within their power to do so. Again, realize I’m not saying they can’t repeal the law. They can. Just that I don’t approve of that argument for the reason to do so. > [@TriPolar](#): > > I’d guess Senator Schaefer has other reasons he wants to eliminate that tax and the constitutionality is just providing his fellow legislators with a palatable excuse. No doubt. There’s a lot going on behind the scenes in the Missouri legislature that I didn’t bring up because it wasn’t really pertinent to the argument in question. But I have no doubt there are strings being pulled by a specific person in St. Louis to get this to the floor. > [@Northern\_Piper](#): > > A question for the OP based on a current example: if a state has a law banning same-sex marriage, should the legislature: > > 1. Conclude that the law is unconstitutional based on the recent SCOTUS decision and repeal it immediately; or, > > 2. Do nothing and leave the law on the books, denying gay folks the right to marry in their state, until someone challenged the law in court? > > Similarly, once the courts started striking down Jim Crow laws back in the 50s and 60s, should legislatures have started repealing their similar laws, even if they hadn’t been a party to the challenge to another state’s laws? > > Or should they have kept all their Jim Crow laws on the books once passed, and required the citizens of the state to be subject to unconstitutional laws until each one had been challenged in court and struck down? Again, it depends. Sometimes the Supreme Court publishes an extremely narrow ruling that says “this ruling is for this case alone and shouldn’t be used as precedent beyond this.” Othertimes they’ll take an extremely wide view that purposely goes way beyond the parties in question. But taking a Judicial decision and applying it to your law is just fine. That’s exactly why the courts are there in the first place. It’s NOT the same as asserting your legal opinion in the absence of a court ruling. And once again I’ll state that it’s not that I believe the legislators cannot do it…just that I believe it’s inappropriate for them to do so. [Next page](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256.md?page=2)