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.
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.
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).
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.
No, you’re still wrong.
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!
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”?
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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).
I explained why in a number of posts in this thread already.
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.
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.
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.