Why should legislators know what’s constitutional? Based on the flyers we find in our mailbox among the polar bear calendars and advice from the gas company about how to live a more fulfilling life, we’re the first to admit that nobody knows more than our Assemblyman when it comes to alternate side of the street parking and hot lunches for deserving seniors. Now that he’s retiring, there’s some kid going from door to door promising that if elected he’ll pass a bill making corruption illegal. No more politics and poker! No more little tin box that a little tin key unlocks!
But we have yet to see a candidate running on the platform of constitutional savvy, and if we did, we probably wouldn’t vote for him-or-her. Never mind the Commerce Clause, Senator, just tell Albany to keep nuclear reactors and football stadiums out of our backyard.
So when it comes to the constitutionality of criminal laws, why should courts defer to a bunch of people who think rational relationship is a dating service? Because, the thinking goes, that would be a return to the bad old days when the Supreme Court struck down labor laws for interfering with the individual’s inalienable right to work 100 hours a week for 2 cents a day. Therefore courts must henceforth always defer to the Legislature.
That’s like Mark Twain’s cat who, having sat on a hot stove, would never sit on a hot stove again. But he wouldn’t sit on a cold stove either.