# 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:** 11\ **Page:** 4
**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 20, 2016, 2:56pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/61 "2016-01-20T14:56:12Z")
> [@JRDelirious](#): > > 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. It doesn’t matter. The legislature’s decree does not (and cannot) bind any future legislator or any court (except insofar as its repeal of the statute binds the court anyway). The additional verbiage has neither meaning nor effect. ---
**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, 3:06pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/62 "2016-01-20T15:06:35Z")
Let me put my position in different terms. The very act of passing a law presumes that the legislature thinks it is constitutional. A legislature does not have the power to pass unconstitutional acts, by definition. ---
**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 20, 2016, 3:19pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/63 "2016-01-20T15:19:01Z")
I agree. And if the law is challenged in court, there is a presumption that it _is_ constitutional and the challenger bears the burden of proof (except under strict or intermediate scrutiny). ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [January 21, 2016, 1:16am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/64 "2016-01-21T01:16:36Z")
> [@lance\_strongarm](#): > > Let me put my position in different terms. > > The very act of passing a law presumes that the legislature thinks it is constitutional. A legislature does not have the power to pass unconstitutional acts, by definition. Which is why its inappropriate to repeal a law because they believe its unconstitutional - unless it has suddenly become unconstitutional (i.e. states with laws on the books forbidding marriage equality that were passed before the Supreme Court ruling). ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [January 21, 2016, 5:09am UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/65 "2016-01-21T05:09:57Z")
> [@Dangerosa](#): > > Which is why its inappropriate to repeal a law because they believe its unconstitutional - unless it has suddenly become unconstitutional (i.e. states with laws on the books forbidding marriage equality that were passed before the Supreme Court ruling). The legislators, because they make up the duly elected legislature, can repeal any law that they themselves enacted. It’s not inappropriate. It’s a part of their duty. ---
**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 21, 2016, 2:05pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/66 "2016-01-21T14:05:35Z")
> [@Dangerosa](#): > > Which is why its inappropriate to repeal a law because they believe its unconstitutional - unless it has suddenly become unconstitutional (i.e. states with laws on the books forbidding marriage equality that were passed before the Supreme Court ruling). No, you’re still wrong. ---
**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 21, 2016, 4:33pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/67 "2016-01-21T16:33:31Z")
> [@Dangerosa](#): > > Which is why its inappropriate to repeal a law because they believe its unconstitutional - unless it has suddenly become unconstitutional (i.e. states with laws on the books forbidding marriage equality that were passed before the Supreme Court ruling). Reasonable people can disagree about whether a law is unconstitutional. If one legislature says a law is constitutional and passes it, that doesn’t mean the next one can’t disagree and declare that it isn’t, and repeal it. By that logic, courts couldn’t declare laws to be unconstitutional either! ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [January 21, 2016, 7:34pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/68 "2016-01-21T19:34:07Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, you’re still wrong. That’s fine. Why? What exactly is the downside to her and the OP’s point of view? I can give my reason: because the idea of “it’s not my job” is inherently not one I support. I think it leads to worse outcomes. If I think something is wrong, the only person I can actually make do something about it is myself. But that same viewpoint is why I am against defense attorneys defending clients they don’t believe and am for jury nullification. As a lawyer yourself, I’ll take a wild guess and say you aren’t. So what is your reason? What is wrong with it other than “that’s not how it’s done”? ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [January 22, 2016, 8:48pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/69 "2016-01-22T20:48:05Z")
> [@BigT](#): > > That’s fine. Why? What exactly is the downside to her and the OP’s point of view? > > I can give my reason: because the idea of “it’s not my job” is inherently not one I support. I think it leads to worse outcomes. If I think something is wrong, the only person I can actually make do something about it is myself. > > So what is your reason? What is wrong with it other than “that’s not how it’s done”? (post shortened, underline added) It’s not inappropriate for a legislator to discuss, champion, persuade, bullshit, deny, or even talk about their grandchildren while they are address their fellow legislators from the floor of the legislature. All sides of an issue are up for discussion, as it any issue. **Dangerosa** ’s position seems to be that legislators can not/must not/should not attempt to repeal a law which some/all legislators believe to be unconstitutional. The lawmakers are not restricted from repealing their own legislation. As you say - If I (legislators) think something is wrong, the only person I (the legislators) can actually make do something about it is myself (themselves). ---
**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 22, 2016, 9:00pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/70 "2016-01-22T21:00:08Z")
> [@BigT](#): > > So what is your reason? What is wrong with it other than “that’s not how it’s done”? I explained why in a number of posts in this thread already. > [@Really\_Not\_All\_That\_Bright](#): > > This is really a bizarre question. > > 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. > [@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. 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. > [@Really\_Not\_All\_That\_Bright](#): > > It doesn’t matter. The legislature’s decree does not (and cannot) bind any future legislator or any court (except insofar as its repeal of the statute binds the court anyway). The additional verbiage has neither meaning nor effect. To sum up, while the courts have the ultimate say in interpreting constitutions and ensuring they are followed, the coordinate branches have not just the authority but the _duty_ to follow them too. We are talking about the legislature limiting its own powers, something it is perfectly entitled to do. We are not talking about the legislature binding one of the other branches. As for why it’s a bad idea in policy terms, that’s been explained by others: people shouldn’t have to go to court to get unconstitutional statutes overturned. It costs them lots of money and may result in them being unfairly imprisoned or prevented from doing something they otherwise had the right to do in the interim. Courts are supposed to be the last resort, and courts don’t like to overturn statutes on constitutional grounds because of the principle of [constitutional avoidance](https://en.wikipedia.org/wiki/Constitutional_avoidance). Beyond that, forcing courts to address such issues often results in inconsistent verdicts in different jurisdictions. For example, for many years post-arrest, pre-Miranda silence was admissible in criminal trials in some federal circuits but not in others. ---
**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 22, 2016, 10:44pm UTC](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256/71 "2016-01-22T22:44:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > To sum up, while the courts have the ultimate say in interpreting constitutions and ensuring they are followed, the coordinate branches have not just the authority but the _duty_ to follow them too. Yes. The reason people seem to think that only courts have that power is that courts often have the last word since they are where people go to settle disputes over laws. But legislatures may also repeal laws as unconstitutional if a court doesn’t overturn it first. [Previous page](https://boards.straightdope.com/t/is-it-appropriate-for-the-legislature-to-debate-the-constitutionality-of-a-law/743256.md?page=3)