The Constitutionality Crisis


Criminals And Your Rights

You Are Represented By Criminals

Perhaps you've noticed, perhaps you've wondered. Whenever weighty constitutional issues are being decided by the Supreme Court, it is usually a criminal, often a real low-life, who is challenging the law. It might be a drug dealer, a pornographer, even a murderer, but it will always be a lawbreaker of some sort. These people often appear to be trying to "get off on a technicality."

The reason for this is simple: to have "standing" to challenge a law (under the existing system), you must be at risk as a result of having broken the law. "Standing" is a very complex issue. Suffice to say that even the most learned Constitutional scholar in the country cannot mount a constitutional challenge to a bad law without first breaking the law and getting arrested, or having a client who has.

Most of us are simply unwilling to break a law, get arrested and face the prospect of prison time to bring a constitutional challenge. All too often then, such challenges are the result of people who are in the business of breaking the law. Something is badly broken when decent people have to depend on criminals to protect their rights.

This is yet another reason to abandon the "judicial review" paradigm for constitutionality challenges. Ordinary people should be able to challenge the constitutionality of laws without having to become criminals!

In March of 2007, the U.S. Court of Appeals for the District of Columbia overturned, as being unconstitutional, three District of Columbia laws, one of which was 31 years old. "Justice delayed is justice denied." The law was finally struck down by the Supreme Court on June 26, 2008. The citizens of D.C. should not have had to live under the enforcement of unconstitutional laws for thirty-two years! Nor, of course, should anyone else.

It simply takes too long and is too expensive to challenge unconstitutional laws through the federal courts. Only a very small portion of challenges make it even to the appeals court level under the rules established by the federal courts. Far fewer yet make it to the Supreme Court itself. Challenges should instead be handled at the state level, by the states and all challenges should result in a response within a reasonable period of time.

"It is a testament to the difficulty of having a constitutional challenge heard that, as of the end of 2002, the Supreme Court had struck down only 158 provisions of federal statutes. Considering how voluminous are the federal laws and regulations, this is a very dismal showing on the part of the Supreme Court."

Warren Michelsen

"It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people."

Felix Frankfurter, United States v. Rabinowitz [1950]