There are numerous states that have proposed/passed anti-protest laws in recent weeks.

Please explain how it's possible to compose text, and have it pass into law, which clearly abridges the 1st Amendment's freedom of assembly clause.

I certainly understand the "legal challenge" aspect wherein if a law is thought to be unconstitutional, it is put through its legal paces. But how can a law be put in force that outlaws the first and most basic civil liberty?

I'm not asking for a civics lesson--I want to know how it's legal to pass a law which requires breaking a tenet of the very framework laws are based upon.

Addendum: Should I move this question to Legal Community?

  • 1
    This seems like a better fit for law.se, since you are specifically asking about the legality of passing a law. The general argument is that the Constitution grants the right to assemble, but not to assemble anywhere. May 30, 2017 at 23:47
  • @IllusiveBrian Thanks...thought there might be a political/legal scholar who might know. I will add to my OP.
    – M.Mat
    May 30, 2017 at 23:49
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    I'm voting to close this question as off-topic because it does not appear to be about governments, policies, or political processes. This is better suited for Law SE. There are versions of this question that would assess the policy itself (enforcement or background). May 30, 2017 at 23:51
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    @DrunkCynic There are fair arguments for both LawSE and PoliticsSE for this question. Since it involves the legislative process, I'm inclined to say that PoliticsSE is a reasonable choice even if it isn't the only legitimate forum where this issue could be raised.
    – ohwilleke
    May 31, 2017 at 21:43
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    @DrunkCynic Except that the correct answer basically is a civics lesson.
    – ohwilleke
    May 31, 2017 at 23:31

3 Answers 3


In theory, legislators have a sworn duty to only pass laws that are constitutional. See United States Constitution, Article VI, Section 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

But, in practice, the only remedy someone has available if the legislature passes an unconstitutional law is to have a court determine that the law is invalid, which a court will only do in the event of an actual live dispute over its validity (the case or controversy requirement see U.S. Constitution, Article III, Section 2, Clause 1) by someone actually materially affected by the law (the standing requirement).

Legislators have absolute immunity from lawsuits over passing unconstitutional laws. See U.S. Constitution, Article I, Section 6 (in the pertinent part):

They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

Similarly, a legislature is usually considered to be an organ of the government rather than an entity in its own right that can be sued for money damages or injunctive relief, in most cases. Instead, it has governmental immunity from lawsuits.

Indeed, the fact that courts can overturn an unconstitutional law is one reason that legislators feel less obligated to make sure that laws that they pass are constitutional than they would under a regime of parliamentary sovereignty in which there was no form of judicial review of legislation available, because they don't have the last word on the question. In a regime of parliamentary sovereignty, legislators have a greater personal moral responsibility to uphold democratic and human rights norms in their legislation. See, e.g., here.

The idea behind the case and controversy and standing rules is that the American legal system interprets laws in a very context and fact dependent way, and also that the American legal system has always had comparative few judges relative to other legal systems. Indeed, often, it is impossible to know if a law is unconstitutional or not under the relevant legal standard until it is applied. So, this rule limits lawsuits that may or may not affect anyone (to conserve judicial resources), and requires that there be a context to illuminate and illustrate what the law means in a real world context rather than in the abstract.

The standing requirement also prevents people who actually like an unconstitutional law from bringing a sham lawsuit to declare it invalid and then intentionally losing the lawsuit. See, e.g., Antonin Scalia, "The Doctrine of Standing As An Essential Element Of The Separation Of Powers", 17 Suffolk University Law Review 881, 891 (1983).

As noted above, these requirements are rooted in Section 2, Clause 1 of Article III of the United States Constitution and the legal doctrines developed around it which have been interpreted to prohibit the filing of advisory opinions.

A minority of U.S. states and many countries have a different process that allows minorities in the legislature and certain other officials to seek advisory opinions on the constitutionality of laws passed by a legislature before it takes effect.

Sometimes these questions are ruled on by a "Supreme Court" (see, e.g., the advisory and suo moto powers of the Supreme Court of India and the power of the Supreme Court of Canada to issue "reference opinions"), sometimes by a body called a "Constitutional Court" (see, e.g., Germany's Federal Constitutional Court) and sometimes by a body called a "Council of State".

The Founders of the United States in the Constitutional Convention that produced the current U.S. Constitution which took effect in 1789, considered creating a similar body in the United States called a "Council of Revision" under a plan proposed by the Virginia delegation. But, this proposal was expressly rejected because judicial review of the constitutionality of legislation by the federal courts would provide sufficient means to ensure the constitutionality of legislation, and the institution would therefore be redundant.

More generally, pre-enactment constitutional review of legislation is not a core part of the U.S. legal culture, which it derived largely from the legal culture of England at the time of the American Revolution. This common law legal tradition had no historical traditional of judicial review of legislation at that time. Even today, after many reforms of its judicial system, the newly created U.K. Supreme Court can only hear appeals of lower court cases, much like the U.S. Supreme Court outside its very narrow trial court jurisdiction, and does not have the authority to issue advisory opinions.

  • 1
    Good answer! Citations would've definitely helped!
    – Noah
    May 31, 2017 at 2:37
  • @ohwilleke: your depth of knowledge and ability to communicate it continues to amaze me. Thank you.
    – M.Mat
    May 31, 2017 at 3:34
  • I believe it's possible to have a law declared unconstitutional even before its enforced, like the ACLU did the Communications Decency Act, by suing the attorney general.
    – user2565
    May 31, 2017 at 17:15
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    @barrycarter This is true, but you must then show it is facially invalid in all cases and further you still provide context because you have to challenge it with an individual who meets the case or controversy and standing requirements usually by demonstrating a genuine chilling effect that is objectively reasonable.
    – ohwilleke
    May 31, 2017 at 18:30
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    @Noah Citations added with accompanying minor revisions to the text.
    – ohwilleke
    Jun 1, 2017 at 0:34

Regarding a more causal sense of how...

It's feasible to pass blatantly unconstitutional laws whenever a plurality of legislators are more loyal to their anti-democratic sponsors than to the Constitution. Especially if the voters who put those legislators into office can be made to remain confused about who and what they've really voted for.

Even if such a law is certain to be overturned, that law may create a window of mischievous opportunity (and impunity) in the time between its passage and its overturn or repeal. During that window the sponsors may be able to freely advance toward some of their normally illegal goals.

  • "more loyal to their anti-democratic sponsors than to the Constitution." At least as often, the reverse is true. They are more loyal to the wishes of their constituents than to the anti-democratic Constitution.
    – ohwilleke
    Apr 12, 2018 at 3:11
  • @ohwilleke, Re "anti-democratic Constitution": in your view is the US Constitution generally anti-democratic, or specifically in certain parts and if the latter do any of those parts tend to obstruct peaceable assembly?
    – agc
    Apr 12, 2018 at 4:57
  • Certainly, the entire Bill of Rights is, by design, anti-democratic.
    – ohwilleke
    Apr 12, 2018 at 6:01
  • @ohwilleke, A follower of Prof. Klarmin's oppositional history then. My own prejudice is that such views flow more from a generational amnesia than from revelatory rediscovery.
    – agc
    Apr 12, 2018 at 7:21
  • No. And, I personally think that an anti-democratic constitution is a great thing. Democracy is a process value. Civil rights and liberties are more substantive good long term policies that need to be guarded against democratic excess.
    – ohwilleke
    Apr 12, 2018 at 7:26

I want to know how it's legal to pass a law which requires breaking a tenet of the very framework laws are based upon.

Those that write the laws are, by definition, above them.

It's a bit like wondering how a King might be able to pass a new law that contradicts his earlier law.

He just does it, because he's your ruler, you're his subject/slave and he doesn't give a fuck about "the rules". He makes them.

He just wants you to do what he wants, and will punish you for disobedience. That's how ruling over people works - through coercion. You can't get millions of people to give you their money[1] without forcing them to.

[1] Just in case someone would "go there", we're not talking about "giving someone money" in the sense of buying something.

The sad part is, that's how the world still works. It's just that Kings have been replaced by "Parliaments" / "Senates" / "Congresses" and the like.

They issue commands called "laws" just like a King would, and will punish you for disobedience just like a King would.

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