Revival of Dead Statutes

An interesting question from Howard Bashman:

Assume that the 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?

I happen to know of a law review article that addresses precisely this question (albeit in passing). As I have permission to reprint that article at will, here goes:

One thing to clear up right off the bat, however, is the common misconception that federal courts have the power to "strike" down a law. We usually imagine that a statute, once declared unconstitutional, "is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been passed."¹⁹¹ But this is not technically accurate. Despite such language used by courts and commentators, there is no such thing as "striking down." A federal court has no power to erase a statute from a state's lawbooks.¹⁹² As one prominent scholar said, "No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority."<sup>193

191</sup>Norton v. Shelby County, 118 U.S. 425, 442 (1886).

¹⁹²See Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 876 (1991) ("A federal court may hold a state statute 'overbroad,' but it cannot 'invalidate' a state statute in the sense of rendering it irredeemably null and void."); Nimmer, A Proposal for Judicial Validation of a Previously Unconstitutional Law: The Civil Rights Act of 1875, 65 COLUM. L. REV. 1394, 1398 (1965) (arguing that the Civil Rights Act of 1875, held unconstitutional by the Supreme Court, could be revived because it had never been repealed); see also Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248, 1257 (Cal. 1995) (holding that a federal court had not "invalidated" a state statute, but had merely "enjoined [its] enforcement"); Jawish v. Morlet, 86 A.2d 96, 97 (D.C. App. 1952) ("[A] statute declared unconstitutional is void in the sense that it is inoperative or unenforceable, but not void in the sense that it is repealed or abolished . . . .").

¹⁹³David L. Shapiro, State Courts and Federal Declaratory Judgments, 74 NW.U. L. REV. 759, 767 (1979).

Michael Froomkin also addresses the question here.


Stuart Buck