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I'm wondering about the limits put on which behaviors the legislature can criminalize in US law. I'm wondering about things like, could clearly harmless behavior (say, lifting a pack of gum with your left hand on a Tuesday) be criminalized without the law being unconstitutional, or how much discretion does the legislature have to determine whether it wants to consider behavior harmful.

As an example, in German law the Grundgesetz starts with an enumeration of fundamental rights that get divided into liberty rights and equality rights by legal theorists depending on what the individual right protects. Art. 2 GG acts as a generic right to liberty in case any of the specific liberty rights (such as freedom of assembly, of the press, of religion) don't cover something. A law criminalizing wearing blue lipstick for example would be a clear violation of Art. 2 GG, so the legislature is limited in that sense.

Question: What constitutional limits exist for US lawmakers to criminalize behavior?

  • More generally, you might want to read about the concept of positive vs. negative rights in constitutions. The US Constitution is largely viewed as concerning itself with negative rights (with some exceptions): restricting the government from acting in certain ways that infringe specific rights. Some newer constitutions employ greater use of positive rights: affirmative statements of rights that the government has a duty to protect, sometimes extending to rights to education and housing and food (sometimes promised more than delivered) – Zach Lipton May 4 at 4:27
  • @ZachLipton That sounds like a useful lead; I suppose that distinction comes up within some legal traditions, but mostly it's one I would come across in comparative law? – G. Bach May 4 at 14:23
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There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection.

Specific Rights

Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice.

Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do.

Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws.

Rational Basis

Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional.

If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed "fundamental" are normally tested under either strict or intermediate scrutiny.

According to the the Wikipedia article:

Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny.

...

laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review.

...

In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature.

The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end.

...

A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur.

(See Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635)

Rational Basis analysis became accepted after the demise of "substantive Due Process", mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York *

In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing:

[A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.

Specific cases
  • In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny.

  • In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright."

  • In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned..

Vagueness

Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness.

Procedural protections

Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges).

Other Limits

There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones.

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    I think the 9th Amendment is the most similar to Art 2. GG linked in the OP, which is “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” For example, the right to travel between states freely (Shapiro v Thompson). – IllusiveBrian May 4 at 1:03
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    The whole "vagueness thing is bad" seems a bit contradictory, really. Vagueness is kind of the hallmark of the constitution; nobody in the legal system seems to have a problem with laws being a byzantine array of things incomprehensible to non-experts; "ignorance of the law is no excuse"; and quite a lot of (supreme) court precedents are necessarily predicated on the idea that it's so hard to understand what the laws and constitution mean, and how to adjudicate them, that most courts and lawyers can't even get it right. – zibadawa timmy May 4 at 2:26
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    You missed one major restriction: post facto laws. A law can't criminalize an action already taken. – Mark May 4 at 4:31
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    @zibadawatimmy, there's a difference between "complicated" and "vague". If it takes extensive study to figure out if a law covers an action, that's (within reason) fine. If, after extensive study, nobody can figure out if a law covers an action, that isn't fine. – Mark May 4 at 4:34
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    @zibadawatimmy: The constitution gets away with it because it says the Supreme Court gets to clarify any vagueness in it. Statutes don't generally do this... – Mehrdad May 4 at 5:50
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This may depend on who is interpreting The Constitution.

But one of the "originalist" interpretations made by Barnett in Reason's "Has The Constitution Lost Its meaning debate" is that The Constitution is not the law that governs the people, but rather it is the law which governs the people who govern the people. His argument for it is that the people don't consent to the Constitution, but all public servants' oath of office requires them to follow the Constitution.

As such, the Constitution, in its entirety, is a restriction on what various branches of the government may do and when additional restrictions come into being.

While it was thought, at the time of the writing, that it was unnecessary to put any additional restrictions on government actions (because it would be understood that anything which wasn't explicitly allowed, would be forbidden for the government to do) in order re-enforce this point on some scenarios in which a government would be tempted to overreach, "The Bill of Rights" in the form of additional 10 amendments was added. The Bill of Rights specifically forbids the Congress to pass certain types of laws which would curtail some specific rights.

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    The argument that people not consenting to the constitution means that the constitution doesn't govern people is completely unconvincing. If that argument held, it would imply that the criminal code also does not govern people, because they also did not consent to the criminal code. The reason why the constitution restricts government is that that is what the constitution says it does. Besides, there are indeed elements of the constitution that apply to non-governing people, such as the definition of treason. – phoog May 4 at 4:51
  • @phoog I am not sure. Just on a philosophical level, I think you can reframe any positive statement as a negative to the exclusion of most exceptions. Most of the time, when arguing about definitions, it's helpful to state both what something is and what it isn't. You can develop a full theory from the "governs those who govern" position. It's not absolute though. None of the interpretations are. Those who govern do so because they have the power to do so. Using a car analogy, you can view power as the gas and the Constitution as the breaks. – grovkin May 4 at 5:19
  • @phoog definition of treason can also be viewed as a restrictive statement. Meaning that, the government cannot make rules which would make anything else treasonous. So that arbitrary laws would not be passed making other behaviors treasonous. And you consent to be governed by those who govern by the virtue of not trying to have more power than they do. And they consent to the restrict their power by the Constitution. Do you agree to color within the lines or do you agree to not color outside of the lines? – grovkin May 4 at 5:21
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    The proposition that most people don't know that there is a criminal code is demonstrably false. The vast majority of people know that if they take someone else's property they can be arrested and imprisoned. I also suspect that most people who have sworn to uphold the constitution have not read it in its entirety. The main reason that the consent argument is fallacious, though, is that the consent is not voluntary. It may not be withdrawn. People who do not consent to the legal system are the very ones whose rights are curtailed by it. That they haven't read the code doesn't change that. – phoog May 4 at 13:09
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    @grovkin that's a myth, except inasmuch as the people collectively consent by not revolting, if they are powerful enough to do so (which most are not). There is no individual consent. – phoog May 4 at 18:35
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There is the constitution as written, and then there is the "annotated constitution", the latter is the constitution along with all the major cases that set case law and defined the various sections and amendments thereof.

It is this latter annotated version you'd want to examine to accurately answer any specific question of "is this law constitutional."

As such, the general answer to your question, like most legal questions, is:

"it depends"

But in essence, the legislature can essentially pass whatever laws that receive a majority vote (and are then signed by the president for simple majority, though if he doesn't sign the legislature can override with a supermajority vote).

But if such-and-such law will pass constitutional scrutiny is then up to the courts. The courts then consider constitutionality based on one of three levels of "scrutiny":

  1. Rational Basis — Does the government interest have a rational basis for the law. This lowest level of scrutiny is used for laws that do not infringe on any "fundamental" right. A fundamental right is one that is enumerated in the constitution or the amendments thereof.
  2. Exacting (Intermediate) Basis — This stronger scrutiny is used when there is an "important government interest", such as content-neutral regulations on speech and it involves certain suspect classes (things like gender or sexual orientation based discrimination tend to fall into this class).
  3. Strict Scrutiny — This strongest test of the constitutionality looks to determine if there is a "compelling government interest," and if the law is sufficiently narrow and "minimal" to achieve that interest. This is applied to laws that infringe a fundamental right, or a specific "suspect class" i.e. a race or national origin.

Your reduct ad absurdum of picking up a pack of gum with your left hand is unlikely to be enforceable as a law in the US because it lacks any "government interest" in prohibiting such banal and non-harmful behavior. There is no rational reason for such a law that I can see, can you define one? You can make one up (the government often does).

But you can certainly come up with some "harmless" types of activities that you might be able to state a rational government interest — so long as that activity is not a fundamental right then you would only have to pass the "rational basis" test, and rational basis includes "imagined or hypothetical reasons".

Example, there is no fundamental enumerated right to arrange flowers without a license (a Louisiana law that met rational basis). See this amusing document on the subject: https://ij.org/wp-content/uploads/2015/03/neily_ny_journal.pdf

  • Thanks, those sound like very useful leads. "There is no rational reason for such a law that I can see, can you define one?" - No, that was pretty much the point of the example, I expected that it should be unconstitutional to make a law like the gum example, but having no clue about US law, I couldn't see anything in its constitution that sounded to me like it would prohibit such a law. I suppose there's a bunch of legal theory to be had behind what counts as a "rational basis" since it's a (possibly purposely?) vague expression, do you have any recommendations where to read up on that? – G. Bach May 4 at 14:40
  • Hi @G.Bach, yes, for reading I posted two links in my answer. The first,the annotated constitution, is the constitution you want to be reading — the constitution is NOT just what was written as statute, but also how the courts have interpreted it. The second link near the end goes into detail on "rational basis" and how it has been abused. – Myndex May 4 at 22:09
  • I did start reading the second link, but I can't tell how dominant a legal opinion it is, or what competing views exist. Would most legal theorists agree with it? If not, what would they say instead? – G. Bach May 5 at 2:10
  • Mmmm... yea it wasn't quite a Harvard Law Review pieces, but it was entertaining. The FIRST link is canonical. The annotated constitution is the authoritative guide to all case law that defines the constitution. Everything you want to know is in there. And yea, it's deeeeep. 250 years of law, but it's not that hard, and the cases are summarized so you don't have to plod through entire opinions. – Myndex May 5 at 5:58
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    This gets Intermediate scrutiny wrong. It is not applied when an mportant government interest is present, that is what is needed for a law to pass such review. It is applioed when a "quasi-suspect class" is impacted, or a dubious distinction is being made. – David Siegel May 5 at 7:15
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The basic limit is whatever right is protected by the US or state constitution. Really obvious examples pertain to the first amendment, so racial insults cannot be criminalized. We also have a notion that "Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law". An example of such a right being interfered with pursuant to a law is that in many states and at the federal level, any possession or consumption of marijuana is a crime.

There is a concept "strict scrutiny" according to which the constitutionality of a law is subject to strong rules in case a fundamental constitutional right is infringed, or else when a government action involves "suspect classification" such as race or national origin. Fundamental rights may be specifically protected by the Bill of Rights, or could be rights recognized by the Supreme Court as a right protected by the Due Process Clause or the liberty clause of the 14th Amendment. Even when a right is a fundamental right, it does not mean it is absolutely uninfringible. The government can infringe your fundamental rights if it does to for reasons of a compelling governmental interest, the law is narrowly tailored to only that purpose, and it is the least restrictive way to achieve that purpose.

If you are not dealing with a fundamental right, there are still purported restrictions on what the government can do, because the law still has to pass the rational basis test. Your proposed ridiculous law probably would not pass a rational basis examination, although it is hard to know for sure because there don't seem to be any cases of laws that have been overturned solely because they lack a rational basis.

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    In Romer v. Evans, 517 U.S. 620 (1996) an admendment to a state constitution was overturn as lacking rational basis. In Plyler v. Doe, 457 U.S. 202 (1982) a state law denying education funding used for undocumented immigrants was struck down on intermediate scrutiny. However as Justice marchall said in New York State Bd. of Elections v. Lopez Torres "The Constitution does not prohibit legislatures from enacting stupid laws.'" – David Siegel May 4 at 1:16
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The city of Seattle, WA recently (April 2019) passed an ordinance requiring all businesses with televisions in public spaces (e.g. bars, restaurants, airports, etc.) to enable Closed Captioning as part of their public accommodations law concerning the deaf and hard-of-hearing. This is a perfect real-world example of the kind of law you're talking about.

I'd like to meet the deaf person who feels they are being discriminated against because they are unable to understand what's being said on TV. I'd also like to meet the barman or resteraunteur who callously ignores a request from a deaf customer by refusing to turn Closed Captioning on. I don't think these people exist. Even if they did, there are thousands of other bars and restaurants where they use Closed Captioning anyway, because as it turns out, bars and restaurants are generally loud places where nobody can hear the TV.

This is a law in search of a victim, and is more about virtue signaling by the city council than it is about actually helping people.

So what does the Constitution have to say about it? Well, not much actually.

In the United States, legislatures are not required to provide a justification for the laws they pass. All laws are presumed by the courts to be constitutional -- even when they blatantly aren't.

There are only 3 ways to get rid of such bad laws:

  • The legislature can repeal it.
  • It can be overridden by a higher legislative body (e.g. Washington State law or a Federal law).
  • It can be invalidated by a court with proper jurisdiction over the matter.

On that last point, however, a person must have legal standing in order to bring a suit for the law to be challenged. In other words, you can't ask a court to second-guess an act of the legislature just because it's stupid. You must be affected by it personally in some way (i.e. you get fined under the statute).

This would be problematic in a case like this because the business owners bound by this law aren't really having their civil rights infringed, as it costs nothing to enable Closed Captioning (all TVs are already required by Federal law to have that feature and it's just a few button presses to turn it on). But neither is it a civil right to watch TV on someone else's property either. You'd have to argue that the law serves no rational basis, but you're running into those presumptions above. You're only hope in that situation would be to have a sympathetic judge. Or an inept plantiff in the case of a civil suit.

So to answer your question, when it comes to those kinds of laws, there really are no protections other than the ballot box at election time to remove the lawmakers who engage in such legislative time-wasting.

The good news is that such laws are generally never enforced. It'll probably show up on one of those stupid laws memes 20 years from now.

  • Some of this is accurate, but the 2nd and 3rd paragraphs are a rant which does not belong here, and should be removed. – David Siegel May 5 at 8:19
  • If such a law was enforced and a bar owner or employee was jailed or fined, that person would have standing to challenge the law. If a person wanted to disable captioning but reasonably feared to be convicted, that person would have standing to sue for an injunction against enforcement or for a declaratory judgement of unconstitutionality. Only if the law is not enforeced and is not likely to be does no one have standing to challenge it. – David Siegel May 5 at 12:58
  • @DavidSiegel; You would only have standing to sue for injunctive relief if you could argue that compliance with the law would harm you in some way. Since enabling Closed Captioning doesn't impose any undue burden on you, that'd be a very difficult argument to make. – Wes Sayeed May 5 at 15:59
  • Perhaps some deaf people feel discriminated against because they are made to ask to have the captions turned on. I have certainly read about wheelchair users saying that having someone who can carry them up a set of stairs is not an equivalent accommodation to a wheelchair ramp. It's not exactly analogous, but there are some similarities between the two. – phoog May 5 at 21:29
  • @Wes Sayeed I believe that if a person has a credible belief that if they act as they would prefer they will be prosecuted under a law, they have much the same standing to challenge as if they had violated it and in fact were prosecuted. I could be mistaken, but i don't think so. This is so that people do not need to risk criminal charges to challenge a law. – David Siegel May 5 at 21:53
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With respect to your question's scenario, the Federal Government is limited by several rules in the Constitution and Judiciary precedence. First, Article 1 sets up the list of "limited" things Congress is allowed to vote on (Limited is in quotes because there are certain clauses which are loose enough to allow for a wide amount of wiggle room, namely the interstate commerce clause (feds have regulatory power over trade between two or more states) and the "Necessary and Proper Clause" which can get some creative interpretations.). Generally, if there is a problem with blue lipstick in transit over state lines or because it's necessary to restrict for matters of... let's say national security than it could get a law on sale and trade but wearing would be a bit of a stretch.

The next rule is the First Amendment to the Constitution, which has been interpreted rather broadly as to what speech is considered Protected Speech (I.E. Political Speech and somewhat Commercial Speech) and Unprotected Speech (Which is actually a very extensive list, but occurs under very narrow circumstances.). Because the United States is a Common Law country, a ruling in a case creates laws known as Case Law (as opposed to Statutory Laws, which are created by a legislature) so the Supreme Court has had a large hand in furthering the limits of the First Amendment. Most of this is not written into the law, but derived from Case Law. Through this process, the we have several important rules that the Supreme Court has crafted. First, in the jurisprudence of the United States, all speech is considered Protected until proven otherwise and the speaker's intent matters more than the listener's interpretation. For example, during a Vietnam War Protest, a protester said to some effect "If I am drafted, my first bullet will be for [President] Johnson" and was arrested because threatening the President of the United States is illegal. The Supreme Court found that while the law supported arresting the President, it was clear from the context of the situation that the speaker was making a joke at a protest and not actually contemplating political assassination and should not be arrested. The second important rule is that symbolic speech is protected as the same as free speech. This means that something that is symbolically speaking for you (an interpretive dance, burning the flag, putting up Christmas Lights) than it also counts as if it was spoken. This would instantly mean a Blue Lipstick Ban could be illegal if you wear Blue Lipstick in support of a political movement (i.e. the color of the Democratic Political Party) or a controversial opinion (I.E. Wearing Blue Lipstick in Support of the upcoming Live Action Sonic the Hedgehog movie aka History's Greatest Monsters!) or even in protest of a Blue Lipstick Ban (no seriously, women have had charges of indecent exposure dropped because they are protesting parts of the law criminalizing bearing breasts in public... by bearing breasts in public in protest.). And finally, if you want to get a really creative political statement and some American Flag Burning, google "Penn and Teller Burn the Flag" and enjoy.

A lot to digest but we're not through yet. There are two other amendments that are out there, the 9th and 10th which are more insurance than actual use... but they still get thumped around a bit. The 9th amendment says that the Bill of Rights is not an enumerated (i.e. limited to the things discussed) list (or rather the Bill of Rights is an enumerated list), as opposed to the power of Government which are enumerated in the initial Articles. Basically, it was the Founding Father's way of saying "We're lazy and don't want to think of every possibility for all of future time, but trust us, there's probably more than what we wrote about). The 10th Amendment takes the 9th Amendment and further clarifies that, in the event of a topic that is not covered by the rights of government or the Bill of Rights, it shall be a power of either the State Constitution OR the individual. Put together, it was basically a check against overreach by limiting the powers of government to the bounds of the constitution and the powers of the citizens to be unbounded when not discussed in the constitution (State Governments are bound by individual Constitutions and the U.S. Constitution).

So if there is some compelling government interest that Blue Lipstick must be banned, it must be narrowly tailored as possible and must avoid a biased reason for the ban. For example, let's return to flag burning. Any law banning the Burning of the United States Flag in the United States is unconstitutional... however, a law that bans the burning of the Flag because it's the dry season and burning anything outdoors could start a dangerous wildfire, then it's perfectly legal. Here the context of why you are burning the flag doesn't matter but rather the danger of burning any flag or any flammable object to the entire community.

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