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This is apparently very hypothethal question. According to the answers to the question "Could a state legalize murder?", theoretically, a U.S. state could legalize murder (of course, it would not affect the federal law which also criminalizes murder, but only in specific cases). However, it was suggested that a state could not do that in a discriminatory way. For example, if a state legalized killing of black people, but kept killing of white people a crime, it would apparently be unconstitutional and violate the Equal Protection Clause.

If a U.S. state passed such a law and someone challenged it before the courts, how could the court remedy that?

Since the state is not obligated to criminalize murder (and even when the state criminalizes murder, it may use prosecutorial / enforcement discretion), I guess that the court could not simply strike down the exception for one race and order the state government to prosecute murder of both races or to change the law.

Would the court have any other option than to simply strike down the entire murder law as unconstitutional, thus effectively legalizing all murders in that state?

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  • Isn't a state level death penalty a form of legalized murder? (although the terms are a bit muddy if you consider that murder is a non-state sanctioned extrajudicial killing, because once there is a law supporting it, it no-longer is extrajudicial. And I say non-state sanctioned because soldiers must have a legal basis for killing the enemy - but I don't know what basis that is).
    – Peter M
    Nov 27, 2023 at 15:19

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For example, if a state legalized killing of black people, but kept killing of white people a crime, it would apparently be unconstitutional and violate the Equal Protection Clause.

If a U.S. state passed such a law and someone challenged it before the courts, how could the court remedy that?

In that case, most likely, by declaring the law amending the previous murder law to be unconstitutional.

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  • For completeness' sake: striking down the amending law would return the underlying law to its previous status quo, which is different than striking down the entire murder statute, correct?
    – Cadence
    Nov 28, 2023 at 4:59
  • @Cadence Correct.
    – ohwilleke
    Nov 28, 2023 at 14:43
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Taking this hypothetical situation out of the hypothetical and into reality.

We have a precedent for how the courts will handle such an extermination law that targets a specific group of people. Admittedly this was done via an executive order and not a legislated law. But I don't think that matters.

How will the US courts remedy such an unconstitutional order if it were to be repealed? The state courts will deny any/all attempts to have the law repealed. As well as any related claims. When brought to the federal courts. The federal courts will state "Not my jurisdiction please file your appeal in the state court".

So the answer based on current precedent is the courts wouldn't do anything. And the law will remain on the books for over 100 years, and never be declared to have been unconstitutional.

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    Authorizing the government to kill someone is not legally analogous to eliminating criminal consequences of a private individual kills someone (e.g. by expanding the scope of self-defense laws). Notably, the Mormon War of 1838 in Missouri precedes some key legal developments like the adoption of the 14th Amendment and the judge made legal determination that most of the Bill of Rights protects people vis-a-vis state governments via what is known as the incorporation doctrine. At the time, this wasn't unconstitutional. MO could not have done what it did then under modern US Constitutional law.
    – ohwilleke
    Nov 27, 2023 at 22:49

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