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Statutes in Exile:
Howard is back, and poses a very interesting constitiutional law question:
  Assume that the [Supreme] Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

  Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court's first ruling issued?
Terrific question. I have some vague intuitions about the answer, but instead of "preening [my]sel[f] in front of the blogospheric mirror" I think I'll turn this one over to our readers. If any one knows of a case where this happened or an article or book discussing this issue, please let us know about it in the comment section.

Ken (mail) (www):
If I were less lazy - a lot less lazy -- I would look at the language SCOTUS and other courts used afer the death penalty was once again declared constitution (given a proper statute) to explore this, and see whether they suggested that states would have to pass new statutes confirming with SCOTUS' latest read on the DP or whether they suggested that each statute, including ones previously in effect, would be scrutinized. However, I'm too lazy today.

However, I can't resist commenting on the abiding silliness of bloggers accusing other bloggers of preening or being narcissistic. In other news, water is wet, and you might want to remain vigilant during sex in case your partner sexually harasses you.
2.27.2005 2:35pm
Michael Froomkin (mail) (www):
I have posted an answer to your question at Discourse.net under the title The Amazing Reappearing Statute.
2.27.2005 3:54pm
Kevin (mail):
I once posed this precise question to my constitutional law professor, who completely dodged the question.

My hunch is that such laws would spring back to life. The Court is not a legislature, and therefore cannot literally strike statutes from the Code. Instead, it merely refuses to permit their enforcement in the courts.
2.27.2005 3:57pm
Ken (mail) (www):
Might we get a different answer if the question was not whether the state could prosecute people who committed the act after the flip-flop, but whether it could prosecute people after the flip-flop for conduct committed during the period that the statute was deemed unconstitutional?
2.27.2005 4:18pm
fiat lux (mail) (www):
Seems to me that someone would have to make a decision as to whether to begin (re-)enforcement of those old laws which had been overturned by SCOTUS.

Picking a fairly famous example, look at Griswold. In the event that SCOTUS reversed itself, the state of Connecticut would have to choose whether to start enforcing said law again. Would they?
2.27.2005 4:22pm
John Jenkins (mail):
I think the answer to Ken's question is no. It would be an ex post facto criminalization of something that was not (could not be) prohibited during that time period. I think that unconstitutional statutes remain on the books (we have some in Oklahoma), therefore if the statute were eventually declared constitutional again, it would be enforceable. As an aside, the death penalty as such was never declared unconstitutional: the procedures with which it had been administred were. I don't think that examining those statutes would be helpful, because all of the states that revived the death penalty did so with statutes that conformed to the new standards.
2.27.2005 4:25pm
Marty Lederman (mail):
A Court declaration of unconstitutionality does not have the effect of "stripping" the statute from the law books -- it "merely" serves as a de facto injunction against application of the statute (and as stare decisis w/r/t application of indistinguishable statutes in other jurisdictions). Thus, the standard view is that when the Court reverses itself, the statute "comes back to life" and may be enforced -- assuming, of course, that the legislature has not repealed it (which does sometimes happen). Probably the most thorough treatment is in Bill Treanor and Gene Sperling's 1993 article on "Prospective Overruling and the Revival of 'Unconstitutional' Statutes," 93 Colum. L. Rev. 1902 (1993). Treanor and Sperling attempt to argue that in certain circumstances the statute should not be permitted to "revive" absent legislative reenactment, but they concede that the argument is novel and against the weight of precedent.

One caveat: If a person engaged in conduct prohibited by a statute during the time that it was deemed unconstitutional, and did so in reliance upon the Supreme Court's declaration that it (or an analogous statute) was invalid, due process prevents criminal prosecution of that person for the conduct that occurred during the "period of unconstitutionality." See, e.g., Marks v. U.S., 430 U.S. 188, 191-96 (1977). That is to say, if a statute does "revive" upon overruling, it almost certainly does so only prospectively.
2.27.2005 4:28pm
OrinKerr:
Several readers pointed me to this 1937 opinion of the Attorney General in the wake of the Lochner era:

**************************************************

39 U.S. Op. Atty. Gen. 22, 1937 WL 1707 (U.S.A.G.)

United States Attorney General
STATUS OF DISTRICT OF COLUMBIA MINIMUM WAGE LAW

APRIL 3, 1937.

The courts have no power to repeal or abolish a statute; it remains on the statute books notwithstanding a decision holding it unconstitutional; and if such decision is subsequently overruled the statute will then be held
valid from the date it became effective. The District of Columbia minimum-wage law, held unconstitutional by the
Supreme Court in a decision subsequently overruled, is now a valid act and may be administered accordance with its terms.

The PRESIDENT.

MY DEAR MR. PRESIDENT:

In answer to your request of April 2, 1937, for my opinion respecting the
present status of the District of Columbia minimum-wage law, in view of the
recent decision of the Supreme Court in the case of West Coast Hotel Co. v.
Parrish, 300 U. S. 379, overruling the case of Adkins v. Children's
Hospital, 261 U. S. 525, I have the honor to advise you as follows:
The District of Columbia minimum-wage law was approved and became effective
on September 18, 1918 (c. 174, 40 Stat. 960). The act provided for its
administration by a Minimum Wage Board to be appointed by the Commissioners
of the District of Columbia. It further provided for the organization of the
Board and defined its powers and duties. The Board appointed under the
statute, acting in pursuance thereof, issued its order prohibiting the
employment in the District of Columbia of women or minor girls in certain
industries at less than a prescribed wage per month. The Children's Hospital
sought to enjoin the Board from enforcing its order against the hospital. An
injunction issued was sustained by the Supreme Court in the case of Adkins
v. Children's Hospital, decided April 9, 1923, on the ground that the
statute was unconstitutional. The effect of this decision was to suspend the
further enforcement of the act.
In the case of West Coast Hotel Co. v. Parrish, supra, the Supreme Court
said 'Our conclusion is that the case of Adkins v. Children's Hospital,
supra, should be, and it is, overruled.'
The decisions are practically in accord in holding that the courts have no
power to repeal or abolish a statute, and that *23 notwithstanding a
decision holding it unconstitutional a statute continues to remain on the
statute books; and that if a statute be declared unconstitutional and the
decision so declaring it be subsequently overruled the statute will then be
held valid from the date it became effective. Pierce, et al. v. Pierce, 46
Ind. 86, 95; McCollum v. McConaughy, 141 Iowa 172, 176, 119 N. W. 539, 541;
Christopher v. Mungen, 61 Fla. 513, 532, 55 So. 273, 280; Allison v. Corker,
67 N. J. L. 596, 600; Boyd v. Alabama, 94 U. S. 645, 649; State v. O'Neil,
147 Iowa 513, 515, 520, 523; The Effect of an Unconstitutional Statute by
Oliver P. Field, pp. 181, et seq. See also Thomas v. Gilbert, 76 Ohio St.
341; Jackson v. Harris, 43 F. (2d) 513, 516; Haskett et al v. Maxey et al,
134 Ind. 182, 190; Center School Township v. State, 150 Ind. 168, 173; Ray
v. Natural Gas Co., 138 Pa. St. 576, 590; Storrie v. Cortes, 90 Tex. 283,
291; Hoven v. McCarthy Bros. Co., 163 Minn. 339, 341; Allen v. Allen, 95
Cal. 184, 199; Crigler v. Shepler, 79 Kan. 834, 840; Adkins v. Children's
Hospital, supra 544; 7 R. C. L., p. 1010.
It is, therefore, my opinion that the District of Columbia minimum-wage law
is now a valid act of the Congress and may be administered in accordance
with its terms.

Respectfully,

HOMER CUMMINGS.
39 U.S. Op. Atty. Gen. 22, 1937 WL 1707 (U.S.A.G.)
2.27.2005 4:39pm
Greedy Clerk (mail):
I think the answer would be something like this: The question would be one of state law, i.e. whether state abortion statutes were overruled by implication. See, for example, the recent opinion of the Fifth Circuit in the appeal of the denial of the 60(b) motion in Roe v. Wade. The Circuit held that there was no case or controversy as the abortion statutes had been repealed by implication. The ruling was clearly one interpreting Texas law, not interpreting federal law (except obviously insofar as the state law dictated that as a matter of federal law there was no case or controversy).

As Marty points out, the question of whether a person could be prosecuted for conduct during the period in which it was held (presumably by mistake remember) that the conduct was not criminal is a question of due process, not one of ex post facto. As the conduct was criminal during that period (but the court mistakenly declared otherwise), no ex post facto issue is raised. As Marty further points out, there is law on point that a prosecution for such conduct would violate due process because the person was not on notice that they could face criminal sanction for such conduct. Note moreover that even before the decision cited by Marty, the Model Penal Code took this exact position listing it as one of the very few instances in which a mistake of law is a defense to criminal liability.
2.27.2005 6:10pm
Michael Herz (mail):
The issue is discussed, elegantly and at length, in William Treanor and Gene Sperling, Prospective Overruling and the Revival of "Unconstitutional" Statutes, 93 Colum. L. Rev. 1902 (1993).

From the introduction:

we argue that in some - but not all - circumstances, [*1906] statutes that were unconstitutional under the rule enunciated in the invalidating decision should not be revived when the invalidating decision is overturned. We base this conclusion upon two separate and independent theoretical bases.

First, full examination of the revival issue demonstrates the interactive nature of the relationship between judicial invalidation of statutes and majoritarian decision-making. Judicial review is not purely external to the legislative process: the very act of judicial invalidation powerfully shapes subsequent legislative deliberations. Belief in the finality of judicial judgments is so pervasive that, when a statute is struck down or when a judicial decision establishes a rule of law under which a statute is unconstitutional, its opponents frequently act as if the statute were gone for all time. At the very least, even if political actors realize the potential for reversal, the finding of unconstitutionality alters the way in which they spend their political capital. As a result, rather than seek to repeal a statute that appears to be, for all practical purposes, a nullity, they devote their political resources to other - more clearly consequential - matters. Revival in such circumstances can produce a result contrary to what the political process would have produced in the absence of the initial judicial decision.

We will call the response of political actors to judicial decisions political reliance. Proper concern for the majoritarian process leads to the conclusion that in some situations political reliance merits protection through nonrevival.

Second, the revival issue dramatically raises the question: when should statutes adopted by past majorities establish the starting point for current majoritarian lawmaking? The revival issue thus forces reconsideration of a question that has troubled Americans since the times of the debates over the ratification of the Constitution: why should we defer to what past majorities decided rather than consider issues anew? In this Article, we argue that, given the essentially libertarian bias of our constitutional system of governance, a statute that has once been unconstitutional under governing case law should not be revived if it constrains individual liberty (as do, for example, the abortion regulations sanctioned by Casey).

The way to protect political reliance and to force legislative reconsideration of constitutionally problematic statutes is through an extension of the doctrine of prospective overruling. When a court prospectively overrules an earlier decision, it decides that the new rule of law - the law announced in the overruling decision - will be applied only in cases that arise in the future; other cases will continue to be decided under the rule of law enunciated in the decision that is being overruled. The doctrine of prospective overruling currently applies only to conduct engaged in prior to the overruling decision. Recognition of the existence and the importance of political reliance and of the importance of legislative reconsideration of constitutionally problematic [*1907] statutes warrants an expansion of this technique. In this Article, we will argue that in a limited class of cases the doctrine of prospective overruling should be available to courts as they consider the enforceability of statutes enacted prior to the overruling decision. Thus, in certain instances, the overruling decision would not lead to revival; rather, a court would apply the rule of law of the initial decision to statutes passed prior to the overruling decision and therefore bar enforcement of the statutes (unless they were repassed after the overruling decision).
2.27.2005 8:55pm
PETER S. CHAMBERLAIN (mail):
This problem, and the problem of setting up a test case, has fascinated me ever since the Supreme Coui barred the death penalty for crimes other than murder, such as aggravated sexual assault of a child, under then-existing law.

The reasoning of Stogner v. California, holding revival of a prosecution for aggravated sexual assault of a child barred by limitations before the amendment, but while the victim was a minor, stronlgy suggests that, either under Ex Post Facto or Due Process analysis, the Supreme Court would hold a state may not prosecute under teh former, e.g. capital, statute between the time that was declared Constitutionally impermissible and any new opinion saying the states could have such laws.

Suppose some crusading DA wanted to set up a test case. Assuming the County Commissioners would give him the money to go all the way to the Supreme Court, the effect of Furman v. Georgia etc. was to force the states to revise their death penalty statutes to meet their criteria, so the old laws are no longer on the books in Teaxas and probably elsewerhee. Increasing a penalty after the commission of the crime is an Ex Post Facto no-no, too.

If you want another twist, what about a recodification, expressly described therein as "non-substantive," which had dropped the provisions held unconstitutional, after that decision by the Supreme Court was later reversed by that Court?

We have, on the other hand, seen some cases in which counsel for teh State were able to persuade Texas' highest criminal court to modify or abandon a rule of law beneficial to the defendant in a case, which they had announced earlier, retroactively, and nobody seens to see a real problem with that.

I handled one case in which I knew there was a controversy, but both the defendant, and the intermediate appellate court, thought the maximum punihsment for repeat felony DWI was only five years, so, against my advice, he turned down a plea offer of a three year term, the intermediate appellate court took the sme view, and then the State Prosecuting Attorney in Austin--who just happened to have written a contrry, unpreported opinion as a justice himself that we knew about but which could not be cited under the rules), persuaded the Court of Crimiinal Appeals to uphold his view and the 45 year term assessed against my client. Two weeks after he got out,thirteen years later after all the appeals, he got caught again on what was really about his 13th DWI.

Texas had two converse situations. After the legislature responded to 10,000 years to life sentences for possession of one marijuana joint by reducing this to a Cass C offense like a parking violation, and provided for some retroactive relief, the Court of Criminal Appeals, Texas' highest criminal appellate court, held that this violated the Separation of Powers Article of the Texas Constitution, inter alia. Years after the Texas Legislature provided for "deferred adjudication probation," without a finding of guilt or a final convictin for, e.g., a felony or theft,and thousands of people relied upon that law, and the courts' specific assurances under it on the record, in entring guilty or no contest pleas in order to get this defered-adjudication probation, the Texas Supreme Court, in a civil context, and then the Court of Criminal Appeals, held that this was a pardon, even as to future cases, by the legislature in violation of Texas Separtion of Powers Clause, the law was invalid, and all these people did have final theft or felony convictions, with resulting disabilities, contrary to what the law, their lawyers, and the judges had told them. The Legislature passed another law to try to solve that problem, but don't bet the ranch on that working, either.

I was the guest of honor at the aggravated armed robbery case, reversal of which by the Court of Criminal Appeals because there had been a very obvious "typo" three life sentences back alleging that the wallet passed from the robber to the victim though the rest of the blanks were filled in correctly, and that had been used at sentencing in this latest robbery. The court had cited an infamous early Texas case, Northern v. State, reversing a conviction for murder of a child for insurance because the indictment had not alleged that he had been dorwned in wter, as though that made any difference to the deceased, a point likeiwse not noticed and raised utnil afte the conviction and sentence. My case led to a Texas Constitutional amendement in 1983 requiring that such matters be raised prior to trial, something that could certainly have been done prospectively by statute. The prosecution avoided this issue in my case by dropping that enhancement count, but, assuming the case had still been pending when the 1983 amerndment took effect, it probably would not have affected this case. One of the funny sidelights was that if I had known the primary defendant was going to inherit a fortune, I might have given more consideration to his letter apologizing and requesting that I represent him in the case at the original trial.

After oiur highest criminal court, in a hodling I had anticipated in one case, had declared that telling a jury that a defendant might get probation, but barring any evidence about that process (which had come to give rise to some arithmetic calculations relied on by judges, juries, and defendants for years anyway), te Texs Constitution was amended specifically to permit that troubling instruction. The Texas courts upheld the amendment, which had the effect of lengthening jury setntences eprmitted under Texas law. In the middle of the whole process, the infamous McDuff case, which everyone knew would happen, just about killed parole in Texas, but the instruction still stands.

If anybody, prosecutor, defense lawyer,juror, victim, or whatever, still thinks criminal law makes any sense either from the perspective of the State or the defendant, or can say "criminal justice system," out loud without either throwing up or laughing out loud, they have probbly been living on the dark side of the moon for a long, long time.

The civil cases, such as minimum wage cases, probably are not relevant, either under the SWtogner language or some of the very early Ex Post Facto cases which appeared to limit it to crimes and criminal penalties, but I don't have those very early cases readily at hand here.
2.27.2005 9:22pm
PETER S. CHAMBERLAIN (mail):
This problem, and the problem of setting up a test case, has fascinated me ever since the Supreme Coui barred the death penalty for crimes other than murder, such as aggravated sexual assault of a child, under then-existing law.

The reasoning of Stogner v. California, holding revival of a prosecution for aggravated sexual assault of a child barred by limitations before the amendment, but while the victim was a minor, stronlgy suggests that, either under Ex Post Facto or Due Process analysis, the Supreme Court would hold a state may not prosecute under teh former, e.g. capital, statute between the time that was declared Constitutionally impermissible and any new opinion saying the states could have such laws.

Suppose some crusading DA wanted to set up a test case. Assuming the County Commissioners would give him the money to go all the way to the Supreme Court, the effect of Furman v. Georgia etc. was to force the states to revise their death penalty statutes to meet their criteria, so the old laws are no longer on the books in Teaxas and probably elsewerhee. Increasing a penalty after the commission of the crime is an Ex Post Facto no-no, too.

If you want another twist, what about a recodification, expressly described therein as "non-substantive," which had dropped the provisions held unconstitutional, after that decision by the Supreme Court was later reversed by that Court?

We have, on the other hand, seen some cases in which counsel for teh State were able to persuade Texas' highest criminal court to modify or abandon a rule of law beneficial to the defendant in a case, which they had announced earlier, retroactively, and nobody seens to see a real problem with that.

I handled one case in which I knew there was a controversy, but both the defendant, and the intermediate appellate court, thought the maximum punihsment for repeat felony DWI was only five years, so, against my advice, he turned down a plea offer of a three year term, the intermediate appellate court took the sme view, and then the State Prosecuting Attorney in Austin--who just happened to have written a contrry, unpreported opinion as a justice himself that we knew about but which could not be cited under the rules), persuaded the Court of Crimiinal Appeals to uphold his view and the 45 year term assessed against my client. Two weeks after he got out,thirteen years later after all the appeals, he got caught again on what was really about his 13th DWI.

Texas had two converse situations. After the legislature responded to 10,000 years to life sentences for possession of one marijuana joint by reducing this to a Cass C offense like a parking violation, and provided for some retroactive relief, the Court of Criminal Appeals, Texas' highest criminal appellate court, held that this violated the Separation of Powers Article of the Texas Constitution, inter alia. Years after the Texas Legislature provided for "deferred adjudication probation," without a finding of guilt or a final convictin for, e.g., a felony or theft,and thousands of people relied upon that law, and the courts' specific assurances under it on the record, in entring guilty or no contest pleas in order to get this defered-adjudication probation, the Texas Supreme Court, in a civil context, and then the Court of Criminal Appeals, held that this was a pardon, even as to future cases, by the legislature in violation of Texas Separtion of Powers Clause, the law was invalid, and all these people did have final theft or felony convictions, with resulting disabilities, contrary to what the law, their lawyers, and the judges had told them. The Legislature passed another law to try to solve that problem, but don't bet the ranch on that working, either.

I was the guest of honor at the aggravated armed robbery case, reversal of which by the Court of Criminal Appeals because there had been a very obvious "typo" three life sentences back alleging that the wallet passed from the robber to the victim though the rest of the blanks were filled in correctly, and that had been used at sentencing in this latest robbery. The court had cited an infamous early Texas case, Northern v. State, reversing a conviction for murder of a child for insurance because the indictment had not alleged that he had been dorwned in wter, as though that made any difference to the deceased, a point likeiwse not noticed and raised utnil afte the conviction and sentence. My case led to a Texas Constitutional amendement in 1983 requiring that such matters be raised prior to trial, something that could certainly have been done prospectively by statute. The prosecution avoided this issue in my case by dropping that enhancement count, but, assuming the case had still been pending when the 1983 amerndment took effect, it probably would not have affected this case. One of the funny sidelights was that if I had known the primary defendant was going to inherit a fortune, I might have given more consideration to his letter apologizing and requesting that I represent him in the case at the original trial.

After oiur highest criminal court, in a hodling I had anticipated in one case, had declared that telling a jury that a defendant might get probation, but barring any evidence about that process (which had come to give rise to some arithmetic calculations relied on by judges, juries, and defendants for years anyway), te Texs Constitution was amended specifically to permit that troubling instruction. The Texas courts upheld the amendment, which had the effect of lengthening jury setntences eprmitted under Texas law. In the middle of the whole process, the infamous McDuff case, which everyone knew would happen, just about killed parole in Texas, but the instruction still stands.

If anybody, prosecutor, defense lawyer,juror, victim, or whatever, still thinks criminal law makes any sense either from the perspective of the State or the defendant, or can say "criminal justice system," out loud without either throwing up or laughing out loud, they have probbly been living on the dark side of the moon for a long, long time.

The civil cases, such as minimum wage cases, probably are not relevant, either under the SWtogner language or some of the very early Ex Post Facto cases which appeared to limit it to crimes and criminal penalties, but I don't have those very early cases readily at hand here.
2.27.2005 9:22pm
arbitraryaardvark (mail):
I've been wrestling with this issue in the context of Talley v California and McIntyre v Ohio. These cases held that the government cannot require identification disclaimers on political literature. In 96 and 97 I contacted states asking them to revise their campaign guides in light of McIntyre. I was usually told that they would continue to enforce their (void) statutes until someone sued them. Due largely to my ineptness, I haven't done too well at suing them.
Judge Posner at the seventh circuit mistakenly thought that McConnell had overruled McIntyre, and upheld the statute in Majors v Abell. In Anonymous v Delaware, the judge found that the statute was so obviously unconstitutional we didn't have standing to contest it. One of my main bottlenecks is lack of cocounsel in the 20 or so states where I'd like to bring these cases.
I would prefer of course, that the officials simply comply with what the Supreme Court has held. I personally think they have an ethical and legal duty to do so; others see it differently.
2.28.2005 5:29pm
Dave Hardy (mail) (www):
That relaes to another issue I have encountered from time to time. Suppose a lower court enjoins enforcement of a criminal statute, and that injunction is ultimately voided (as in a PI voided by trial court at hearing on the merits, or a final injunction invalidated on appeal). Can the government go back and prosecute those persons who violaed the statue during the injunction.

I dunno. The case pro: the remedy wasn't really "striking" the statute, it was enjoining its enforcement. If the injunction is lifted, what's the barrier to enforcing it? Defendant bet that the injunction would be upheld and lost the bet. Life and law are like that at times.

The case con: apart from parking tickets, the law revolves around a principle that a person should be able to know what is lawful and hence conform to the law. Where a person is informed by "the system" that conduct is lawful, he ought not to be punished retroactively when "the system" changes its collective mind.

I wonder if we don't face a paradox similar to that posed by the question of constitutional retroactivity, and have to solve it as arbitrarily. I mean.,.. in 2005 the Court construes documents written in 1787/1789, and changes its mind. The documents and original intent/understanding date from 1787/1789... then how can they have meant something different in 2004 and in 2005? The Court has of course a body of caselaw that allows just that, under the right condition, in a manner which is rather practical, if totally illogical.
3.1.2005 12:15am
Robert Schwartz (mail):
Findings of unconstitutionality are not statutory repeals, and are not binding on non-parties to the original SCOTUS case by way of res judicata or collateral estopel. They are precedent only. They may cause authorities in other jusrisdictions to stop enforcing a statute, but the statutes are not thereby repealed, and arguebly continue in force, even if neglected.
3.1.2005 7:07pm