17

When a court strikes down a federal/state law or state constitution as unconstitutional, can the legislature just leave that unconstitutional provision on the statute book as long as the executive does not enforce it, or is there an obligation to repeal the unconstitutional provision? I have been reading US state constitutions recently and noticed many have provisions barring same-sex marriage, which are obviously unenforceable following the Supreme Court decisions on the matter. Can the states just leave these provisions in their constitutions indefinitely ?

curiousenglishlawyer
  • 171
  • 3
  • 3
    https://law.justia.com/constitution/us/state-laws-held-unconstitutional.html has a list of about a thousand state laws struck down by the Supreme Court. They usually have citations, so you can cross-reference them with the current state legal code, and probably find lots more examples. One I tried at random is Virginia v. Black; the relevant law remains on the books exactly as it was. – Nate Eldredge May 25 '21 at 01:58
  • 4
    AFAIK, constitutionally, courts have no power to order Congress or state legislatures to enact or repeal legislation. – Nate Eldredge May 25 '21 at 01:59
  • Incidentally, this is frequently the opposite of the rule that applies when there are violations of European human rights treaties or certain kinds of EU mandates, and even domestic constitutional protections of human rights in many European countries. – ohwilleke May 25 '21 at 17:27

1 Answers1

15

No, there is no obligation to repeal

It is common for statutes held to be unconstitutional to be left on the books decades later, and for others which quite likely would be so held if anyone tried to enforce them to be similarly left for even longer periods. It is somewhat less common for state constitutional provisions, but it does happen, and as those commonly take more than a simple legislative act, there is even less motivation to go through the troublesome process in such cases.

There are even a few provisions in the US constitution which have become obsolete, but not actually amended away. For example, the so-called 'three-fifths compromise', which counted slaves as worth 3/5ths of a person for computing representation, was effectively repealed by the Civil War and the 13th amendment, but was not formally removed. That section was actually formally replaced by the 14th.

David Siegel
  • 113,558
  • 10
  • 204
  • 404
  • 2
    That's fascinating! So how does a law student or citizen, when picking a statute book off the wall, know if something is good law or not? Does the official law code or compilation of statutes come with annotations? (In the UK, we simply don't have judicial review of primary legislation, so a statute is always law unless repealed...) – curiousenglishlawyer May 25 '21 at 02:36
  • 1
    @curiousenglishlawyer It isn't always easy, as I understand it. There are annotated law codes, which give citations to cases in which the statutes have been interpreted as well as held invalid. But they are mostly not official, they are the work of specialized commercial publishers such as West, who hire people to check decisions for ones that should be listed in annotations. There have been some interesting copyright disputes over such codes, because the annotations are normally protested by copyright, but the actual laws are not. – David Siegel May 25 '21 at 03:26
  • 1
    "was effectively repealed by the Civil War and the 13th amendment, but was not formally removed." I think that's a distinction without a difference. The only way to change the constitution is by amendment. – eques May 25 '21 at 13:04
  • 4
    @eques The point is that there hasn't been an explicit amendment that said "remove the 3/5 section". Just an amendment that effectively contravenes that section implicitly. The distinction isn't in the effect but in the clarity. In one case it might be instantly clear which other parts of the law were affected even if you didn't already know what the other parts contained because of an explicit reference, but in another, you just have to know what parts it affected because you're already separately familiar with them. – Shufflepants May 25 '21 at 14:56
  • @eques The comment by Shufflepants exactly captures my meaning here. The language of Article I sec 2: "...the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other persons" remains in the Constitution, but is hard to see what "other persons" there could now be. People sentenced to life without parole, perhaps? But they are counted as whole persons. So a dead letter remains in the text. – David Siegel May 25 '21 at 15:50
  • @DavidSiegel but the text of the 14th Amendment invalidates it entirely. It is not possible for the text of the original 3/5 compromise and the 14th Amendment to be both applied. With the exception of the 21st which explicitly repeals the 18th, it's never been done. And even if an amendment explicitly repealed some text, it wouldn't eliminate the dead text problem entirely because you'd still ordinarily need the original text for understanding historical precedence. – eques May 25 '21 at 16:06
  • @eques You ae correct on the 14th, my error. Some other changes have been made, for example two paragraphs of Art II sec 3 were replaced by the 17th (direct election of senators). The 15th modified the apportionment of direct taxes clause, the 12 replaced the 4th paragraph of art II sec 1. The 20th modifies several portions of art I. – David Siegel May 25 '21 at 16:55
  • 1
    The last paragraph doesn't make much sense (and seems off-topic). The main body of the US Constitution cannot be edited, as there is no provision in the Constitution for doing so. The overall effect can be changed via amendment, but that essentially overlays the amendment on the previously existing Constitution and Amendments. The 3/5ths compromise is more akin to "dead code", left behind when a software developer removes all calls to a subroutine without editing the routine. – T.E.D. May 26 '21 at 01:36