The Constitutionality Crisis


Government Without Limits

Passing Overturned Laws — Again

On rare occasion, the Supreme Court does find that the Congress has overstepped its bounds and passed a law which it is not empowered by the Constitution to pass. In the period between the passing of the unconstitutional law and its overturning by the Supreme Court, often many years, the American people must comply with these laws or face punishment including, possibly, prison time. Once such laws are overturned, the Congress typically makes some minor changes and passes the same law again.

The Gun Free School Zones Act

The Gun Free School Zones Act (P.L. 101-647, Sec. 1702(b)(1)) was originally enacted in 1990. This law was overturned by the U.S. Supreme Court on April 26, 1995, the Supreme Court (U.S. v. Lopez, 514 US 549) having found that Congress had exceeded its authority under the Commerce Clause.

Undaunted, the Congress made some minor changes which it believed addressed the Court's concerns and passed the same law again on September 30, 1996. Changes to the law, from its original, unconstitutional, version, include changing "Judiciary Committee" to "Committee on the Judiciary", changing "which is" to "that is" and "shall" to "does". Oh, yes, they also added in two places: "... that has moved in or that otherwise affects interstate or foreign commerce" — paying lip service to the Constitution's "commerce clause".

Note that nothing substantive about the new version of the law was changed from the original, unconstitutional law. It still imposes the very same prohibitions as the original. It is still unconstitutional but will remain in effect until someone prosecuted under that law can afford to appeal the case to the Supreme Court and can maneuver the appeal through the labyrinth of courts necessary even to be brought to the Court's attention. Then, of course, the Court has to agree to hear the case — something they do for only a small minority of the cases which make it that far.

The "System" Is Broken

The "system" is broken when the Congress can pass an unconstitutional law and it takes years to overturn it. The "system" is broken when honest citizens have to get arrested and prosecuted just to challenge the constitutionality of a law. And the "system" is very badly broken when the Congress can pass again the same legislation which even the very generous Supreme Court has already found to be unconstitutional.

The only way to fix the system is to return the power to judge laws' constitutionality to the states where it rightfully belongs.

"A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government."

Thomas Jefferson, In his first inaugural address

"It's no accident that the American people are constantly fooled by the fakery of phony politicians. They're not fooled by fake ballplayers, because they can't just talk a good game, they have to play a good game."

Jackie Mason and Raoul Felder

"Good intentions will always be pleaded for any assumption of power. The Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters."

Daniel Webster

"Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

Louis D. Brandeis

"Liberty has never come from the government... The history of liberty is the history of resistance ... a history of the limitation of governmental power, not the increase of it."

Woodrow Wilson

"As nightfall does not come at once, neither does oppression. In both instances there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness."

Supreme Court Justice William O. Douglas

"The true danger is when liberty is nibbled away, for expedience, and by parts. "

Edmund Burke

"Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations."

James Madison

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Justice Louis D. Brandeis, Olmstead vs. United States, 277 U.S. 438 (1928)