It certainly is illegal. "Congress shall make no law..."; that is a law binding Congress, and when Congress makes such a law it is violating that law. Any legislator who votes for it is violating his oath.
However. There is nothing in the USA constitution forbidding states from making laws against abortion. That a passing majority on the Supreme Court pretends otherwise is merely a practical hindrance; such state laws, despite being 100% constitutional, cannot be enforced, because the lower federal courts, who have the power to stop such enforcement, are under the supervision of the Supreme Court, and bound to follow its opinions, no matter how wrong they are. State legislatures are not so bound, so they are entitled to make such laws, both as statements of principle and in anticipation of the day that the Supreme Court will come to its senses. (The same applies, of course, to federal legislators, but anti-abortion laws don't tend to be federal).
Anti-flag-burning laws: it is, I suppose, possible that many legislators actually believe such laws don't break the 1st amendment, in which case they're entitled to make the laws, even if the courts will block enforcement. I think it more likely, though, that they know perfectly well that the laws are unconstitutional, and they just don't care. I'm not aware of a respectable legal theory that can justify such laws.
Establishment clause law is again a murky case. The Lemon test is highly controversial, is disbelieved by many, and is likely to be overturned, especially if Michael McConnell gets onto the Supreme Court. Legislators, state or federal, who disagree with it (or state legislators who don't see where in the hidden crevices of the 14th amendment the Establishment clause can possibly lie hidden), are within their rights to make laws that contradict it.
In the case of the California law we are discussing, the legislature would be justified in passing this law if the majority who voted for it honestly believed that the statute passed by initiative is unconstitutional, and therefore not binding on them. And if the governor honestly believed that, then he would not be obliged to veto it. In my opinion, however, that is such a wacky belief that nobody with even a passing knowledge of the constitution could possibly believe it. I don't think the lower court which overturned the initiative believed it, and I don't think the legislators who voted for this law believed it. I think none of them care about the law, they only care about the outcome and the politics. And so I condemn them.
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timeasmymeasure
no subject
Date: 2005-09-12 03:36 am (UTC)However. There is nothing in the USA constitution forbidding states from making laws against abortion. That a passing majority on the Supreme Court pretends otherwise is merely a practical hindrance; such state laws, despite being 100% constitutional, cannot be enforced, because the lower federal courts, who have the power to stop such enforcement, are under the supervision of the Supreme Court, and bound to follow its opinions, no matter how wrong they are. State legislatures are not so bound, so they are entitled to make such laws, both as statements of principle and in anticipation of the day that the Supreme Court will come to its senses. (The same applies, of course, to federal legislators, but anti-abortion laws don't tend to be federal).
Anti-flag-burning laws: it is, I suppose, possible that many legislators actually believe such laws don't break the 1st amendment, in which case they're entitled to make the laws, even if the courts will block enforcement. I think it more likely, though, that they know perfectly well that the laws are unconstitutional, and they just don't care. I'm not aware of a respectable legal theory that can justify such laws.
Establishment clause law is again a murky case. The Lemon test is highly controversial, is disbelieved by many, and is likely to be overturned, especially if Michael McConnell gets onto the Supreme Court. Legislators, state or federal, who disagree with it (or state legislators who don't see where in the hidden crevices of the 14th amendment the Establishment clause can possibly lie hidden), are within their rights to make laws that contradict it.
In the case of the California law we are discussing, the legislature would be justified in passing this law if the majority who voted for it honestly believed that the statute passed by initiative is unconstitutional, and therefore not binding on them. And if the governor honestly believed that, then he would not be obliged to veto it. In my opinion, however, that is such a wacky belief that nobody with even a passing knowledge of the constitution could possibly believe it. I don't think the lower court which overturned the initiative believed it, and I don't think the legislators who voted for this law believed it. I think none of them care about the law, they only care about the outcome and the politics. And so I condemn them.