Why is that not? Could you please give some legal background beyond simple assertions?
I’m not a lawyer, but from what I’ve gleaned in this thread, it’s that states have police power and their laws are presumed to be constitutional. Taken together, the state could pass this law, it will be presumed to be within its police power as a state, and it would take a court challenge to overturn it.
The court challenge could go either way, but the presumption is that it’s a constitutional law and within the powers of the state. The burden would be on the challengers to show otherwise.
And yet, despite it not being the way you perhaps want it to be, that isn’t how it works–the onus is on a challenger to a state’s duly passed law to demonstrate some reason to believe it is unconstitutional.
I would question if it were so clearly unconstitutional you should be able to point to a very simple constitutional principle it violates, and / or a precedent upholding that interpretation. Obviously finding the precedent is the reason this thread is speculative, but I don’t even really think anyone has put forth a real obvious case just from a textual analysis or historical legal analysis of the constitution that is very persuasive as to its illegality.
The best attempt I’ve seen was the suggestion if violates the freedom to move between States, but there’s already a dozen or more known exceptions to that freedom, and no broad consensus I can see that interfering with your freedom of movement is an inhibition against the State being able to prosecute crimes. In fact, core to how we handle crimes is the State gets to restrain your freedom of movement pursuant to that activity.
That says nothing about about the legal history of states and police power. That’s exactly the type of assertion I’m asking people, especially non-lawyers, to stop making.
I’m unsure here–Are you looking for a citation history of Supreme Court rulings that general police power resides with the states? That would be a pretty expansive study…
The thread has devolved into an uninteresting game of “Yes it is/No it isn’t”. I’m hoping that some meat can be added to the gruel.
That’s not how it works. Duly passed laws are presumed to be Constitutional when they are passed.
No, they aren’t. Martin_Hyde made that claim but politely backed off when I challenged him.
States may pass any bills at all. They are enforceable as long as they are on the books until a judge rules otherwise. Thus, they must be proven unconstitutional (or contain some other fatal flaw) before they are struck down, although some legislation is simply ignored after passage. But no one with sense presumes they are constitutional. They usually are, to our good fortune, but that is not a presumption: it is a mere hope.
Yes, a set of facts could exist where that prosecution could occur. It’s also possible that a set of facts could exist where, in that specific case, there would be constitutional problems, although appellate courts have been very hostile to those arguments to this point in criminal cases. There is no absolute bar to a subsequent criminal prosecution even for the exact same offense in a different state. But as a theoretical matter, I think it’s fair to say that a set of issues could exist where a court might say, OK, full faith and credit really requires that Georgia honor what the Florida jury found.
Otherwise, there’s no reason a court couldn’t find the defendant guilty of conspiring in one state, and another find them not guilty of murdering in another. First, like I mentioned, if the facts are suitable, two states can try the same person for the same thing. Second, conspiracy to X and X are different crimes, made up of different elements, and it’s easy to construct a set of facts where the conspiracy is 100% complete before any of the necessary elements of the murder come into play. Let’s say the defendant sits in Georgia and programs a robot with facial recognition and all kinds of weaponry in order to murder a particular dude. There’s a switch that activates the thing to live fire. Another person is paid to simply drive the robot down to where the victim lives, let the robot out of the back seat, and flip the switch, which he does. The victim is never seen again, and evidence is presented at trial that actually he just ran away. The robot never got near him.
Result in Florida: not guilty of murder, no proof a murder was actually committed. Result in Georgia: the mastermind was guilty of conspiracy before the robot even left the garage.
As to your questions about how it can be possible for one state to criminalize something when it seems like the “Crime” happens in a different state where that thing isn’t a crime, similar hypotheticals can be constructed where it seems like an easier case, I think. But really, the truth is that in law as in everything else, there are rules and there are not-rules. And there’s no rule against this particular thing. Imagine someone talking someone onto a boat and then chugging out into international waters and immediately murdering them. That’s going to be prosecuted. Wasn’t a crime where it happened, but, because laws are just shit we made up, at the end of the day, the rule is simply “yes we can prosecute that.”
Until a court declares them to be unconstitutional, which can’t happen until the State creates a test case by actually trying to prosecute someone under them.
I don’t believe that you are correct.
From that link:
In constitutional law, the presumption of constitutionality is the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, unless the law is clearly unconstitutional or a fundamental right is implicated. [bolding added]
I find that “unless” to be powerful, and also directly applicable to what I quoted. American history is replete with clearly unconstitutional bills passed as political acts. These are vastly outnumbered by the mundane laws that keep the country running, but we’re not discussing the routine and unobjectionable. Even courts are bound to make that distinction.
The very first sentence of your cite reads (emphasis added):
In constitutional law, the presumption of constitutionality is the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, unless the law is clearly unconstitutional or a fundamental right is implicated.[1]
So, laws are Constitutional unless they’re not. What was your point again?
I mean, if you want to insist that laws which nobody has ever been prosecuted under should be described as “presumed Constitutional” rather than something like “of currently undefined Constitutional status”, I guess that’s fine, but I don’t see what practical difference it makes.
Uh, I don’t recall this exchange, and I certainly have never intended to back off the general idea that State laws are presumed constitutional when passed barring any obvious presumption otherwise. I am not sure what statement of mine lead you to believe that–but regardless (and I am not interested in reparsing of prior posts battle), I do not back off of the claim that State laws are valid sans a successful challenge to them, and should be presumed valid without solid reason to presume otherwise. If some words of mine incorrectly gave the impression I had backed away from that claim I apologize for the confusion.
And what exactly are you looking for? Are you questioning the premise of general police power, or that the States have general police power? Or what specifically?
The question of whether a law is constitutional or not can be complicated and I think the dialogue here is making it even more convoluted/complicated than is necessary. Just because laws can be unconstitutional, doesn’t mean you can assume without evidence that all laws “could” be unconstitutional. If you think the hypothetical law is unconstitutional you need an explanation why, and unless I’ve missed it I haven’t seen one. The only explanation I’ve seen is an assertion from @wolfpup about free movement rights. Is it your belief the law would be unconstitutional for that reason?
I think you may be missing the importance of the “unless” within that unless is the principle that the courts need a pretty good constitutional argument to strike down a law duly passed by a legislature–State or Federal. It isn’t a wishy-washy unless that calls into question every law passed by the legislature.
While it can be difficult to predict how the Supreme Court rules, in most cases in which the Supreme Court has ruled a law unconstitutional there have been existing precedents or constitutional analysis at least supporting that idea, if not in direct Supreme Court precedent, then floating around in the legal community. I haven’t seen much evidence of that about a law like this, which goes back to my original comment that because such a law would be without any serious precedent there is no obvious answer as to how the court might rule and no obvious reason to assume unconstitutionality simply because “man this law would be stupid” and/or “man this law would suck.” Lots of stupid and shitty laws are entirely constitutional.
I literally quoted you. I don’t know how to rebut further than “I literally quoted you.”
I also don’t know how to respond the second part other than to ask you to reread my posts. I stated that the vast majority of laws are to be treated this way unless, the same unless that you are using. I also stated that my belief would be that this particular hypothetical would fall into the unless category. Not because states in general do such things but because this particular law would be suspect as a dodge around existing laws from its inception, exactly the sort of law that runs around waving red flaps with UNLESS on them in large letters. That it has never been mooted before and there are no precedents has been the point from the beginning. You cannot treat such a law as normal and usual. It must be given special and exacting examination. What such examination would likely be based upon is the issue. I’m assuming nothing other than courts would be sure to ask some deep questions. And I’m asking for information about those questions, not a restatement of what already has been repeatedly said for over 200 posts.
Which AIUI would be what happens after someone with standing brings up the issue in an argument before the competent court – and meanwhile the law is there, nominally enforceable unless they ask for and the court issues an injunction to prevent it from applying until the question is decided.
By my reading of that law, it would also apply to a NY travel agency that put together packaged trips to the Bunny Ranch, NV.
It’s somewhat oddly worded, but I agree with you. It says “including travel to a foreign country”, so that must be part of some larger category of travel, which could only mean domestic destinations.