Constitutional Law 101 | The Hoglawyer

Wednesday, February 28, 2007

Constitutional Law 101

Posted By on Wed, Feb 28, 2007 at 6:02 PM

I was at the legislature the other day and, the aphorism is true, watching bills made is as bad as watching sausage being made. Fortunately, unlike a typical hot dog, not every bad piece of "meat" comes out as a bill. The day I was there I was watching the Senate Judiciary Committee. They never got to the issue i was there and I won't bore you with the details of my esoteric bill. I was able to hear a discussion of extending the time death row inmates can file a clemency action from four years to six years. It failed. Like wise the "Do not retreat" bill did not pass that day. I was impressed that anyone would dare stand up to the National Rifle Association, but fortunately the legislature respects what the Prosecuting Attorney's Association has to say. They testified that this bill would give defendants more excuses to wiggle out of a murder charge. Next there was a bill to require police officers to decide who was the "primary aggressor" when they respond to domestic violence calls. Again, the day I was there it didn't pass because of a multitude of thorny issues such as whether it would open the door to civil rights claims if the police didn't follow the procedures required by the bill Some bills died without even being given a "second' so they could have an up or down vote. If you can't get a second, you probably didn't work hard enough before hand to get support. Maybe next time I go I'll actually write about it in a timely manner. To be sure, they work at a lightning pace over there and if you are not watching, a bill can live or die in a matter of minutes. All bills must be filed by March 5, so if anyone has been considering asking their congressman for anything- now is the time to contact your representative or senator for sure.

I had a point to this post before I began rambling - Constitution 101. While watching the Senate committee, everyone loves to throw around claims that something is unconstitutional. Or, as I say it, un-con-sti-TOO-shi-nal. The General Assembly isn't always persuaded by this claim, to be certain. Sometimes they KNOW something won't survive a court challenge but they do it anyway to make a statement. In the extended entry, I'll do my best to give a primer as to what makes something unconstitutional, as least as I see it. Lawyers, especially defense lawyers, love to claim something is unconstitutional. When the facts aren't on your side, claiming an action violates a constitutional right is sometimes the only argument you have left. The claim a particular law or government action is unconstitutional is a vast and broad area, so I'll concentrate on the different levels of scrutiny. I'm not sure I ever used the word "scrutiny" prior to law school and now it is something I take for granted. To me, constitutional scrutiny is the lens through which a court views a challenge to a particular statute's or action's constitutionality. Some actions are looked at more critically than others. One frequent claim is that a person or groups of people is being denied their right to "equal protection of the law." To say it a different way, they claim they are being discriminated against.

Not all discrimination by the government violates the constitution. Obvously, the government discriminates against criminals. They don't have the right to vote, some of them go to prison, some go on to be vice-president. A group may be treated differently if there is a rational basis for the discrimination and the purpose of the law is a legitimate governmental interest. We treat people who speed different

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