Is repeal a law itself?

[BigT]

@Ravenman

I’m trying to think of an instance where not having a law on the books would be unconstitutional. My immediate thought is that compelling the existence of a law that Congress seeks to be repealed would be a very serious judicial encroachment on the legislative power, but that’s just my opinion.

I believe this is one of the arguments against Proposition 8–that removing the right for only gay people to marry falls afoul of certain laws that never having ever allowed it would not. I’ve heard it articulated as, “You can grant rights, but you can’t take them away,” which is assumedly an oversimplification. (cf. prohibition)