The Supreme Court and Zombie Laws
There’s an unresolved question about the Supreme Court that I’ve long puzzled over, one which might become relevant with a new Justice joining the court.
It’s long settled that the Court can rule laws unconstitutional, and unconstitutional laws are no longer enforceable. That’s because Article VI says that the Constitution is the “supreme Law of the Land,” and under Article III the Supreme Court is the highest court in the land.
But what happens to a struck-down law if the Court changes its mind and reverses an earlier decision? Does the old law spring back to life, or does the legislature have to pass it again? This might seem like a simple, easy-to-answer question, but it turns out that it’s not.
In Marbury v. Madison (1803), Chief Justice Marshall said that “a law repugnant to the constitution is void.” And in McCulloch v. Maryland, he wrote that “Should Congress … adopt measures which are prohibited by the Constitution … it would become the painful duty of this tribunal, … to say that such an act was not the law of the land.”
So that makes it seem like a law struck down as unconstitutional is gone, and if the Supreme Court later reverses itself and finds that what was previously unconstitutional is now OK, a legislature will have to re-pass the original law for it to come back into effect.
There’s another, more narrow theory. This theory agrees that when laws are found unconstitutional, they must stop being enforced. But the theory stops there. The laws remain on the books — though inoperative — unless the legislatures formally repeal them.
Well-annotated statutes will flag parts of legislative codes that are no longer good law, a kind of scholarly “step around the roadkill” warning when there’s no legislative clean-up. Edited versions of the Constitution also flag pieces that don’t make sense anymore, like the notorious “three fifths” House representation calculation. It’s still “in” the Constitution, despite that and the 13th Amendment abolishing slavery.
So by this second, narrow theory, a “struck down” law is ready to re-animate should the Court change its mind. And the attorney general in a given jurisdiction could try enforcing the old law every so often, testing whether the Court is ready to reawaken it.
Eric S. Fish, while a doctoral student in law at Yale, made a provocative analogy that backs up this second theory about struck-down laws coming back to life.
He pointed out that 2015’s Obergefell case, in which the Court provided for same-sex marriage throughout the US, didn’t strike down state marriage laws like Kentucky’s that explicitly said that marriage was “only” between “one (1) man and one (1) woman.”
Such a law was indeed held unconstitutional. But instead of striking it down, the Court’s decision simply required Kentucky to allow same-sex marriage too, contrary to the law’s text. So suppose that Obergefell itself is later overturned by a Court with a new Justice or two?
It seems that then Kentucky’s statute would be read again according to its original, unedited text. Why, then, should wholly invalidated, but never repealed, statutes really be treated any differently?
Plus there might be lots of statutes never enforced or challenged that are clearly unconstitutional thanks to a holding about a similar statute in another state. This happened with Roe v. Wade, which invalidated a number of state abortion laws. If Roe is reversed, are they back?
(By one count from the Guttmacher Institute, ten states have unenforced pre-Roe abortion bans still on their books.)
I suspect that laws held unconstitutional, but not repealed, will be found to be biding their time for return. Because a Court activist enough to start reversing itself on a bunch of issues will, regrettably, be activist enough to want old laws to see new life.
