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Suppose the Supreme Court of the United States rules on an issue of a federal law and decides that a certain law is unconstitutional and cannot be enforced.

Then suppose Congress proposes an amendment to the states to amend the constitution to remove the language that made the law unconstitutional. This amendment is then ratified and becomes part of the constitution.

Does this in turn make the original law enforceable again? Or does Congress have to pass the law again in order for it to be enforceable?

Essentially my question is if the doctrine of stare decisis (or similar doctrine) prevents the enforcement of the old law until a new law is passed after adoption of the constitutional amendment.

Additionally, as there may be limited federal examples, I would be interested in similar situations which occur during interpretations of state constitutions.

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  • The question as applied to states is more likely to have an answer (so I suggest making it more prominent). At the federal level, I don't believe the situation has ever arisen, so one can only speculate.
    – user6726
    Commented Jan 4, 2018 at 18:20
  • @user6726 I would also be interested authorities like law review articles and similar
    – Viktor
    Commented Jan 4, 2018 at 18:25
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    Instead of an amendment what about changing constitutional interpretation? There's currently wide discussion on this point with current pushes to overturn Roe v. Wade and "reactivating" unenforced law.
    – DPenner1
    Commented Jun 3, 2020 at 6:09

1 Answer 1

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Stare Decisis does not validate an old law that was struck down. Rather it allows the creation of a similar but still new law. You cannot be prosecuted for a crime committed before a law takes effect. Since the constitution is the Supreme Law of the land, any law that is Unconstitutional is an illegal law, thus the criminalized act is still legal.

There is historical precedence for this: With the passage of the 18th amendment (Prohibition) alcohol was not criminalized per se, right off the bat. Rather, it empowered Congress to pass the Volstead Act, which was the regulatory act that banned the substance. When the 21st amendment was ratified, repealing the 18th Amendment, the Volstead act was automatically repealed as it was now illegal under the Constitution.

In a similar possible future situation, the hypothetical repeal of the Second Amendment would not make firearm ownership illegal, as all gun control laws in existance currently are 2nd Amendment compliant. To make firearm ownership illegal a specific law would need to be passed to make firearms owership illegal. Repealing the 2nd Amendment only removes the Constitutional block saying that such a law is unconstitutional.

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    I don't believe your answer fully addresses my question: what I am asking is if there is a law on the books that is patently unconstitutional, but then the reason for its unconstitutionality is removed, does it become enforceable again?
    – Viktor
    Commented Jan 4, 2018 at 17:42
  • (To address your ex post facto argument, I mean acts an individual commits after the passage of the constitutional amendment that violate the old law, which was previously ruled unconstitutional, but is now not unconstitutional)
    – Viktor
    Commented Jan 4, 2018 at 17:43
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    do you have any citations to support that claim?
    – Viktor
    Commented Jan 4, 2018 at 19:22
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    @hszmv It isn't clear (at least to me) that the passage you quoted actually answers the question either way. It is talking about unconstitutional laws. The law in question is specifically stated to be a constitutionally valid law. There is no conflict between the constitution and the law. Sure, the law was void as soon as it was passed, but it isnt clear to me that this means it continues to be void when there is no longer a constitutional conflict.Do you have a source that further elaborates on the treatment of this particular example? Or perhaps an example of this particular situation?
    – Matt
    Commented Jan 6, 2018 at 6:00
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    And how would that work? Congress usually amends the USC when it passes laws, but an overruling by a court doent actually change the code, (or does it?) just makes part unenforceable. Does congress just pass a bill saying "USC section 284 now reads exactly what it currently reads", and the law is back?
    – Matt
    Commented Jan 6, 2018 at 6:27

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