Imagine, if you will, a town that has a law on the books that is actually unconstitutional but has never been challenged in a court of law or overturned in the legislature. It exists solely to allow the police to harass a certain group of people: The police will arrest someone under this bad law and then pressure them to plead down to a lesser offense. If they do not plead down, the charge related to the unconstitutional law is dropped. Either way, the law is never put in a position where it could be judicially overturned. An ACLU test case, for example, would go nowhere: The charge would be dropped and the accused would likely go free.
Assuming the legislature is in no mood to kill this law, is there any way to get this law off the books?
The easiest thing to do is to have someone bring an action for a declaratory judgment that the law is unconstitutional. Consider this opinion (warning: PDF) issued recently by the US District Court for the District of Nebraska. The plaintiffs sought a declaration that a recent amendment to the Nebraska Constitution violated the United States Constitution. The court agreed, and struck down the Nebraska Constitutional Amendment.
Courts also have a way around the Article 3 Standing Requirements, that would ordinarily bar such a lawsuit as moot. The principle is “capable of repetition but evading review.” It allows for lawsuits to challenge laws even when the issue has gone moot, either for the reasons stated above, or due to the time required for cases to wend their way through the legal system. For example, Norma Jean McCorvey’s (Roe of Roe V. Wade) case took well over 9 months to reach the Supreme Court. But courts would never be able to review abortion laws if they had to call the case moot because the woman had already aborted/ given birth by the time they got the case. So, they apply the “CofRbutER” rule to dodge mootness. Other examples would be students challenging school policies who have since graduated, etc.
Although the declaratory judgment thing would probably work, this is another way to prevent states from doing the type of thing you mentioned.
Fascinating. No matter how much a layman thinks he knows about the US legal system, no matter how dead-simple or esoterically tricky he thinks the inconsistency is, there’s always something waiting in the wings to blow it to smithereens.