Why Are So Many Unconstitutional Laws Still on the Books?

Answers to your questions about the news.
April 4 2013 3:12 PM

How a Bill Becomes Not a Law

What happens to unconstitutional state laws? Can they just stay on the books forever?

North Carolina State Capital building.
North Carolina Capitol building

Legislators in North Carolina have proposed a bill declaring that the First Amendment to the U.S. Constitution, which prohibits the government from establishing a state religion, does not apply to the state. North Carolina is no stranger to breaching the wall between church and state: Article VI, Section 8 of the state constitution already bars nonbelievers from holding office. Although the law has been declared unconstitutional, it remains on the books. Do unconstitutional laws just hang around forever?

Some do. Judges cannot reach into statue books and erase laws. Some state legislatures proactively repeal unconstitutional laws, either one at a time or in batches after a few of them pile up. Others just leave them there, because repeal would suggest agreement with what they consider to be the anti-democratic court decision. The Texas law criminalizing homosexual sex, for example, remains part of the state penal code even though the Supreme Court invalidated it nine years ago in Lawrence v. Texas. It’s not mere laziness but an act of protest by offended legislators. Democrats have repeatedly introduced bills to repeal the unconstitutional language, but they are never enacted into law. (For anyone worried about the legal implications of their sexual preference, the statute books contain an annotation explaining that the anti-sodomy law is invalid.) Louisiana law still imposes the death penalty on those who rape children, although the Supreme Court banned this use of capital punishment in 2008. Lawmakers probably don’t want to appear soft on child rape.

State constitutions, which are more difficult to amend than ordinary statutes, are rife with unconstitutional language. Arkansas, Pennsylvania, South Carolina, Tennessee, and Texas, along with North Carolina, all have language suggesting that atheists are barred from office.

The Supreme Court justices are pretty tolerant of states thumbing their noses at them from afar, but they will not tolerate meaningful resistance. After the Supreme Court declared school segregation unconstitutional in the landmark 1954 case Brown v. Board of Education, Arkansas passed a series of laws attempting to nullify the federal decision, forcing the court to issue a second decision emphasizing that the nine justices, and not the states, were the final arbiters of constitutionality.

If the North Carolina bill denying the separation of church and state passes, there’s another reason it might remain on the books for a long time: It’s immune from challenge in federal court. In order to challenge the constitutionality of a statute, a citizen must be able to show that it causes him some identifiable harm. In this case, the law simply states the sense of the legislature. Challenging it in court would be akin to challenging a Senate resolution that objects to the elimination of wrestling from the Olympics or a House resolution favoring the adoption of National Pet Week. The federal courts do not wade into debates without practical consequences. (A litigant may have better luck in state courts, which often have less stringent requirements for establishing standing.)

If North Carolina were to officially declare a state religion, the courts would be more likely to intercede. Declaring a state religion isn’t a consequence-free declaration like picking a state bird, a state flower, or a state fossil. Naming a state religion is more analogous to erecting a Ten Commandments monument in the state Supreme Court building. Members of other religions could challenge the move on the grounds that it offends their belief system and suggests state preference for one religion over another.

Got a question about today’s news? Ask the Explainer.

Explainer thanks Michael Gerhardt of the University of North Carolina School of Law, James Pfander of Northwestern University School of Law, and Kermit Roosevelt of the University of Pennsylvania Law School.

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