# 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:** 3
**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 19, 2016, 1:56pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/41 "2016-01-19T13:56:43Z")
It’s called separation of powers, not separation of duties. Upholding the constitution is a duty that all three branches share. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 19, 2016, 1:57pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/42 "2016-01-19T13:57:45Z")
Way I see it: Arguing in debate “this law is unconstitutional” and then later passing a bill that just says “Be it resolved: Act X is hereby repealed” does not create a stare decisis thst the subject of Act X as unconstitutional, and is fair game for legislation. The _record of the argument_ is NOT law. OTOH passing a bill that reads: "Be it Resolved: Municipal earnings taxes as enacted by Act X are unconstitutional, therefore it is repealed " would be an attainder that breaches the separation of branches. ---
**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 19, 2016, 2:49pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/43 "2016-01-19T14:49:11Z")
Uh… what? ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [January 19, 2016, 3:10pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/44 "2016-01-19T15:10:52Z")
That made perfect sense to me. Suppose the House passes a law making it illegal to wear a burqa. (This is, sadly, actually a debated issue in Canada.) A year later a new party takes over Congress and repeals the law. Several legislators, in debating the law, state that one of their reasns for doing so is that they feel the law is unconstitutional. That does not constitute \*stare decisis \*making burqa-baning unconstitutional. It’s a perfectly valid justification for repealing the law but doesn’t constitute precedent, so in the future Congress could quite possibly pass the same legislation again. However, in repealing the burqa law, Congress can say “This law isn’t in effect anymore.” Whatever their reasons for doing so is their call. What they can’t meaningfully do is throw something into the bill of repeal saying “Oh, and it’s unconstitutional, too.” ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [January 19, 2016, 3:12pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/45 "2016-01-19T15:12:05Z")
> [@Dangerosa](#): > > Nope, I think that someone in party B has an obligation to ask the courts for an injunction when the law is passed. If its really that unconstitutional, the courts will step in before harm is done. No, that’s not how our system works. Someone has to show harm (and have standing) before the courts will step in. ---
**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 19, 2016, 3:32pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/46 "2016-01-19T15:32:56Z")
> [@RickJay](#): > > What they can’t meaningfully do is throw something into the bill of repeal saying “Oh, and it’s unconstitutional, too.” Well, commentary about their reasons for repealing it are “unmeaningful” by definition. There is no difference between **JRDelirious** ’ two examples except that one is a bit longer. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 19, 2016, 3:56pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/47 "2016-01-19T15:56:41Z")
> [@Northern\_Piper](#): > > What about this: > > 1. Party A controls the Legislature. Party B is the minority. > > 2. Party A introduces a bill. Party B opposes the bill from the get go, saying it’s unconstitutional and they will devote all of their efforts to getting it repealed. > > 3. The Legislature passes the bill into law on a straight party division in each house. All members of Party A vote for the bill. All members of Party B vote against the bill, arguing it is unconstitutional, and they will do every thing in their power to have it repealed. > > 4. The next year, in the elections, Party B makes the new law the centre point of their campaign. Every candidate for Party B makes speeches saying the law is unconstitutional and they will repeal it as soon as they get a chance. > > 5. Party B wins the election, gaining a clear majority in both houses of the Legislate. > > 6. On the first day in office, the leaders of Party B announce that their first measure will be the repeal of the law, because it is unconstitutional, and the voters have agreed. > > 7. The leaders of Party A announce that Party B cannot repeal the law because it’s not the Legislature’s job to repeal a bill because they think it’s constitutional. > > **Dangerosa** and **Enderw24** , do you think Party A is right? The legislature can repeal the law for any reason it wants. It is logically impossible to argue that a legislature can’t act to pass, repeal, amend, or whatever a law based on constitutional grounds. A legislature must follow the constitution as it sees fit. Just because a previous legislature believed a law was constitutional doesn’t bind a new one to go along with it. They could repeal the law because they thought it was ugly or dresses funny, so certainly they can repeal it for more important reasons. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 19, 2016, 3:58pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/48 "2016-01-19T15:58:50Z")
> [@Dangerosa](#): > > Nope, I think that someone in party B has an obligation to ask the courts for an injunction when the law is passed. If its really that unconstitutional, the courts will step in before harm is done. > > And at that point its the executive branch’s job to determine whether the law is worth fighting for in court. > > I think party B has a responsibility to repeal it because they believe its a bad law. i.e. argue for it because its unpopular, or because its unfair. WHY is it unconstitutional? There is a root cause there, and that is the debate that should happen - not the binary of constitutionality AFTER a law is passed. That is the argument that should be being made in the legislature. > > Separation of duties - they are important. As noted, there is no “seperation of duties” when it comes to adhering to the constitution. All branches of government must do it, and in the case of a legislature, it has an obligation to repeal a law it views as unconstitutional. It need not and should not wait for a court to tell it what to do. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [January 19, 2016, 4:20pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/49 "2016-01-19T16:20:30Z")
> [@lance\_strongarm](#): > > The legislature can repeal the law for any reason it wants. > > It is logically impossible to argue that a legislature can’t act to pass, repeal, amend, or whatever a law based on constitutional grounds. A legislature must follow the constitution as it sees fit. Just because a previous legislature believed a law was constitutional doesn’t bind a new one to go along with it. They could repeal the law because they thought it was ugly or dresses funny, so certainly they can repeal it for more important reasons. Yes they CAN. I’m saying I don’t think its appropriate. Not that it should be illegal. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 19, 2016, 5:07pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/50 "2016-01-19T17:07:57Z")
> [@Dangerosa](#): > > Yes they CAN. I’m saying I don’t think its appropriate. Not that it should be illegal. What I’m saying is that it is not only appropriate for a legislature to consider the constitutionality of a law, it is REQUIRED. They can’t possibly do their job otherwise. They take an oath to uphold the constitution, just as judges do. You can’t pass laws and operate a legislature that it bound by a constitution without following that constitution. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 19, 2016, 5:46pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/51 "2016-01-19T17:46:50Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, commentary about their reasons for repealing it are “unmeaningful” by definition. There is no difference between **JRDelirious** ’ two examples except that one is a bit longer. Actually yes there is: in example 2, the hypothetical legislature tries to _enact an explicit statute decreeing that the prior action was unconstitutional_. It is not a throwaway “aside” comment. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [January 19, 2016, 9:33pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/52 "2016-01-19T21:33:04Z")
> [@lance\_strongarm](#): > > What I’m saying is that it is not only appropriate for a legislature to consider the constitutionality of a law, it is REQUIRED. They can’t possibly do their job otherwise. They take an oath to uphold the constitution, just as judges do. You can’t pass laws and operate a legislature that it bound by a constitution without following that constitution. You two appear to be talking past one another. The legislature that is debating whether to repeal the law for being unconstitutional is essentially telling the earlier session that they DIDN’T do what they’re REQUIRED to do. It can be pretty disrespectful. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [January 19, 2016, 10:33pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/53 "2016-01-19T22:33:39Z")
> [@kaylasdad99](#): > > You two appear to be talking past one another. The legislature that is debating whether to repeal the law for being unconstitutional is essentially telling the earlier session that they DIDN’T do what they’re REQUIRED to do. It can be pretty disrespectful. Would it be “disrespectful” if President Obama overturned one of President Bush’s executive orders? ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 19, 2016, 11:11pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/54 "2016-01-19T23:11:24Z")
> [@kaylasdad99](#): > > You two appear to be talking past one another. The legislature that is debating whether to repeal the law for being unconstitutional is essentially telling the earlier session that they DIDN’T do what they’re REQUIRED to do. It can be pretty disrespectful. So what? You don’t allow an unconstitutional law to remain in force just for “respect.” Should a legislature not repeal ANY laws out of “respect” for the previous lawmakers? ---
**Author:** ![Stonebow](https://avatars.discourse-cdn.com/v4/letter/s/ed8c4c/32.png) [@Stonebow](https://boards.straightdope.com/u/Stonebow)\ **Post date:** [January 20, 2016, 12:23am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/55 "2016-01-20T00:23:49Z")
I have a little practical experience with this (in terms of working closely with legislators) and the response I was always given is ‘It’s my job to represent the interests of my constituents. The court can decide if it is constitutional. Checks and balances.’ Which is a fair stance to take. My only issue is when it is paired with rhetoric about ‘judicial activism’ by ‘unelected judges,’ undermining confidence in the very concept. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 20, 2016, 12:28am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/56 "2016-01-20T00:28:36Z")
> [@Stonebow](#): > > I have a little practical experience with this (in terms of working closely with legislators) and the response I was always given is ‘It’s my job to represent the interests of my constituents. The court can decide if it is constitutional. Checks and balances.’ Yes, that’s a standard politician’s copout for not doing his job and ignoring the constitution. It’s very very wrong. > [@](#): > > Which is a fair stance to take. It’s not a fair stance, it’s a complete avoidance of responsibility. It would justify voting for absolutely anything, no matter how awful. The folks back home want a law putting Muslims in concentration camps? Okay, we’ll do it, and if it’s unconstitutional the courts can overturn it. It’s a violation of their oath to uphold the constitution. The idea that legislators acting with the authority of the constitution don’t have to abide by it is absurd. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [January 20, 2016, 12:30am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/57 "2016-01-20T00:30:24Z")
> [@lance\_strongarm](#): > > What I’m saying is that it is not only appropriate for a legislature to consider the constitutionality of a law, it is REQUIRED. Yes. However, the context is important. Here is an article on the OP situation: > **[E-tax 'unconstitutional' according to former solicitor general - The Missouri...](https://themissouritimes.com/e-tax-unconstitutional-according-to-former-solicitor-general/)** > > JEFFERSON CITY, Mo. – In a memorandum addressed to Sen. Kurt Schaefer, R-Columbia, and distributed throughout the General Assembly Thursday morning in advance of a… As I read it, the anti-tax Republicans aren’t just proposing to strip Kansas City and St. Louis of the allegedly unconstitutional part of their local income tax, but of the entire tax. Of course they should consider constitutionality. But I don’t respect attempts to turn what is essentially a political decision into a legalistic one. See: [St. Louis, Kansas City mayors testify against earnings tax repeal](http://www.stltoday.com/news/local/govt-and-politics/st-louis-kansas-city-mayors-testify-against-earnings-tax-repeal/article_2c55761d-e89f-5c77-87d0-12ded09e2581.html) > [@](#): > > Anyone who lives or works in both the city of St. Louis and Kansas City must pay this one percent tax. In St. Louis, it accounts for one-third of the city’s general revenue, generating $185 million in St. Louis last year. . . . > > Sean Marotta, the attorney who argued the Supreme Court case, said the cities’ tax was unconstitutional because no credit for income taxes paid to other states is provided. It seems reasonable to me that St. Louis and Kansas City credit income tax paid to other states when the St. Louis or Kansas City tax rate is higher. That would seem a reasonable way to balance any Constitutional issue without devastating municipal finances. And it isn’t anything like what the advocates of slashing tax rates are pushing. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 20, 2016, 12:39am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/58 "2016-01-20T00:39:34Z")
> [@PhillyGuy](#): > > Yes. However, the context is important. Here is an article on the OP situation: > > [E-tax 'unconstitutional' according to former solicitor general - The Missouri Times](http://themissouritimes.com/26111/e-tax-unconstitutional-according-to-former-solicitor-general/) > > As I read it, the anti-tax Republicans aren’t just proposing to strip Kansas City and St. Louis of the allegedly unconstitutional part of their local income tax, but of the entire tax. > > Of course they should consider constitutionality. But I don’t respect attempts to turn what is essentially a political decision into a legalistic one. See: > > [St. Louis, Kansas City mayors testify against earnings tax repeal](http://www.stltoday.com/news/local/govt-and-politics/st-louis-kansas-city-mayors-testify-against-earnings-tax-repeal/article_2c55761d-e89f-5c77-87d0-12ded09e2581.html) > > It seems reasonable to me that St. Louis and Kansas City credit income tax paid to other states when the St. Louis or Kansas City tax rate is higher. That would seem a reasonable way to balance any Constitutional issue without devastating municipal finances. And it isn’t anything like what the advocates of slashing tax rates are pushing. But those objections, which are legit, aren’t about constitutional review itself. You object to the legislature using constitutional review to go further and use it to launch a political act. That’s a different issue. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 20, 2016, 1:39am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/59 "2016-01-20T01:39:47Z")
What gets to the heart of this is who decides on the constitutionality of a law. SCOTUS took on that role in _Marbury v. Madison_ but there is nothing written that specifically puts it in the judiciary’s lap. I suppose one could say that the Legislature would never knowingly pass an unconstitutional law\* but by the same token one could easily argue that the executive’s role in carrying out the law while upholding the Constitution would imply that the Chief Executive (President or Governor) could decide if a law is unconstitutional; the drawback being that then constitutionality would depend on the whims of whoever was elected. So let’s just say that we assume that the courts deciding what is or is not constitutional is the best solution, that is not without problems of its own. Take the issue of standing with all of the birther claims. Who exactly can challenge the election of an ineligible candidate? No one really knows\*\* so I would have no problem in a state legislature repealing a law that allows the political party to put whomever they want on the ballot if they want to argue it is unconstitutional and replace it with one requiring a candidate to meet the requirements of the office. That may not be the case here (anyone paying the tax has standing) but perhaps the Legislature feeling it will be overturned wishes to have the cities avoid paying back all those taxes later on. Then it would be in their interest to repeal it now rather than a court overturning the law later on. - Sometimes I wonder if they pass the law just to see if the courts will uphold it. \*\* I would vote for the vice-president-elect as he is being prevented from taking the office he is entitled to due to the president-elect being ineligible to hold office. How likely is that to happen? ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 20, 2016, 2:44pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/60 "2016-01-20T14:44:28Z")
> [@Saint\_Cad](#): > > What gets to the heart of this is who decides on the constitutionality of a law. SCOTUS took on that role in _Marbury v. Madison_ but there is nothing written that specifically puts it in the judiciary’s lap. It is logically IMPOSSIBLE for a legislature not to determine the constitutionality of a law as part of its lawmaking duties. Marbury v. Madison simply said that courts can also do so. Before that, it was presumed that Congress would do so as part of its function. > [@](#): > > I suppose one could say that the Legislature would never knowingly pass an unconstitutional law\* but by the same token one could easily argue that the executive’s role in carrying out the law while upholding the Constitution would imply that the Chief Executive (President or Governor) could decide if a law is unconstitutional; Well, yes, he can. And he could refuse to abide by or enforce such a law. > [@](#): > > the drawback being that then constitutionality would depend on the whims of whoever was elected. What’s wrong with that? > [@](#): > > Sometimes I wonder if they pass the law just to see if the courts will uphold it. Oh yeah, they do that all the time. [Previous page](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256.md?page=2) [Next page](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256.md?page=4)