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I don't know whether this is on topic because I'm not asking what the laws are but what the laws should be. On the 2nd thought, I can phrase it as a factual question:

Is criminalizing suspiciousness constitutional? There are quite a few laws that make harmless acts criminal for the sole reason that such acts make law enforcement suspect the person of something else. Let's call such laws "fences" around the actual intents. These fences in effect circumvent the principle of presumption of innocence, and more: even if the person proves his innocence of the real cause of the fence laws they still can be found guilty of breaking the fence law.

Example: it's illegal in CA (and probably most other states) to have an open container of alcohol in a motor vehicle. This is clearly a fence law around DUI law: there is no harm when a sober person drives while another one drinks in the back seat, but the driver still may be punished.

Example: I was made recently aware that it's illegal to share with other people a photograph of a completed voting bulletin. Apparently even some congressmen weren't aware of that and publicly shows pictures of their votes. This is a fence against purchasing votes, although it also effectively prevents vote swapping, which is perfectly legal. It would seem that this particular fence law also interferes with the citizens' right to vote by vote swapping, which is a whole other constitutional issue.

I am sure one can quote far more examples of the above.

Thus the questions:

Are the above "fence" laws constitutional? If so then should, in your opinion, legislature engage in creating laws for the sole purpose of circumventing presumption of innocence for the cases involving other laws?

For the 2nd example in particular, is it constitutional to interfere with voting right by criminalizing the only known method for voting via vote swapping, which has been found legal by 9th circuit court a few years ago?

  • Very interesting. Can you give some more examples of what you consider to be "fences"? Are maximum speed limits "fences" around careless/reckless driving, for instance? Is concealed carry without a permit a "fence" around assault with a deadly weapon? Etc. – Patrick87 Sep 13 '16 at 20:49
  • @Dawn It looks like Michael is trying to categorize some violations as "fences", and I'm asking for clarification about the criteria he's using to define that category. – Patrick87 Sep 13 '16 at 20:51
  • @Dawn: I borrowed "fence" from religious Jewish laws which often prohibit things for the sole purpose of preventing some other things. If the thing looks like pork don't eat it even if you know it's not pork, this kind of things. – Michael Sep 13 '16 at 20:52
  • @Dawn The question seems to me to be about a justification from the point of view of the philosophy of law about a certain category of laws, which Michael refers to as "fences". If anything, I'd recommend he go in the other direction and reduce the importance of the examples given (and maybe add more to clarify the commonality). "Constitutional" seems to be a substitute for "just" in this context. – Patrick87 Sep 13 '16 at 20:53
  • @Dawn, as a matter of immediate interest I'm more interested in the voting-ballot example: I'm considering in participating in vote-swapping in the upcoming election, which is currently being setup on honor basis because the law against showing one's filled ballot prevents everything else. However, I'm even more interested in the principle of things: should such "fences" exist at all in a free society? – Michael Sep 13 '16 at 20:56
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Ballot photos

Anti-ballot-photo laws may not be constitutional.

Two of them have been struck down for violating the 1st Amendment.

  • Rideout v Gardner Case 1:14-cv-00489-PB
  • Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML

California's has been amended by the legislature to allow disclosure of a filled-in ballot as long as it isn't part of violating some other law (like vote buying).

Open container laws

Open-container laws have never been held to be unconstitutional. These are state laws, and states have broad freedom to legislate as long as they don't violate their constitution or elements of the Federal Constitution that have been incorporated by the 14th Amendment. My guess is that they would be upheld because they would pass rational basis review: they are rationally related to a legitimate government interest. Here is an example of an open-container law surviving a constitutional challenge.

State are encouraged to pass open-container laws by 23 USC 154. If a state does not have an open container law, they receive less federal highway funding. This kind of condition was upheld by South Dakota v. Dole.

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