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By Root 822 0

or how it was constitutional with evidence? The answer is NO, because the only time government is supposed to act is when it is morally and constitutionally justified in doing so, that is, when it has evidence demonstrating not only a rational basis, but a necessity. Anything less would permit arbitrary—or even worse, invidious—government restrictions of liberty. Thus, the presumption of constitutionality can serve no legitimate purpose other than to increase the scope of the government’s authority beyond the Constitution.

It should be clear at this point that the presumption of constitutionality disparages our Constitution in principle, and our unenumerated natural rights in practice. But as a practical matter, how then are we to protect all of our unenumerated liberties, as the Constitution requires, without actually listing them? The answer is, of course, a presumption of liberty.

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What Is a “Law,” After All?

In Papachristou v. City of Jacksonville (1972), the Supreme Court considered the constitutionality of the following ordinance, which provided for the arrest and conviction of

rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, [and] persons able to work but habitually living upon the earnings of their wives or minor children. (emphasis added)

Essentially, the purpose of the statute was to enable police to arrest those people who just have that certain “up to no good” look about them; stated differently, to permit Jacksonville, Florida, police to arrest anyone they wanted to arrest. Although eventually you will find a genuine criminal if you arrest enough people who fit those descriptions, clearly such a law is unjust to the clumsy amongst us who were confused for common drunkards. For quite obvious reasons, the Supreme Court struck the statute down for being too vague.

Lest one believe this statute was an isolated incident, consider the text of the following Act:

For any lawful stop . . . made by a law enforcement official . . . where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. (Emphases added)

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As many readers were probably able to guess, this is the pertinent text from Arizona’s recent infamous immigration law, the constitutionality of which is being challenged and the enforcement of which has been enjoined, as this book is being written. How is the phrase “reasonable suspicion . . . [of being] unlawfully present in the United States” any less vague and ambiguous than “strolling around . . . without any lawful purpose”? If one wants to avoid getting stopped by the police while driving, he can simply avoid speeding or swerving. But how does one avoid looking like an illegal immigrant, or how does one walk without looking like a “habitual loafer” for that matter? And similarly, how are the police to recognize such persons?

The law, as I have said before, must have standards. If it did not, then Congress could simply speak words proclaiming that gambling is illegal, and without more, it would be. Or it could sneak the law itself into a drawer and never speak of it again (similar to what it does with earmarks). Even Positivists concede that, at a minimum, the law must be “written.” Thus, there are certain minimum requirements which a law must satisfy. By contrast, if it was not enacted according to these “procedures,” then it cannot be called a law.

So