united-states criminal-law constitutional-law comparative-law
Constitutional limitations on criminalizing behavior in US law?
<p>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.</p>

<p>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. <a href="https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0026" rel="nofollow noreferrer">Art. 2 GG</a> acts as a generic right to liberty in case any of the specific liberty rights (such as freedom of <a href="https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0054" rel="nofollow noreferrer">assembly</a>, of the <a href="https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0037" rel="nofollow noreferrer">press</a>, of <a href="https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0033" rel="nofollow noreferrer">religion</a>) 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.</p>

<p><strong>Question:</strong> What constitutional limits exist for US lawmakers to criminalize behavior?</p>

<p>There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection.</p>
<h2>Specific Rights</h2>
<p>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.</p>
<p>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.</p>
<p>Thre are also specific limitations not in the bill of rights, such as the prohibition of <em>Ex Post Facto</em> laws, the right to trial by jury, and the constitutional limitation of Treason laws.</p>
<h3>Rational Basis</h3>
<p>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 <em>rational basis</em>. 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.</p>
<p>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 &quot;fundamental&quot; are normally tested under either strict or intermediate scrutiny.</p>
<p>According to the the <a href="https://en.wikipedia.org/wiki/Rational_basis_review" rel="nofollow noreferrer">Wikipedia article</a>:</p>
<blockquote>
<p>Courts applying rational basis review seek to determine whether a law is &quot;rationally related&quot; to a &quot;legitimate&quot; government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny.</p>
</blockquote>
<p>...</p>
<blockquote>
<p>laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review.</p>
</blockquote>
<p>...</p>
<blockquote>
<p>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.</p>
<p>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.</p>
</blockquote>
<p>...</p>
<blockquote>
<p>A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical <em>non sequitur</em>.</p>
</blockquote>
<p>(See Killian, Johnny H., George A. Costello, &amp; Kenneth R. Thomas, co-eds., <em>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</em>, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically <em>Romer v. Evans</em>, 517 U.S. 620 (1996) at 635)</p>
<p>Rational Basis analysis became accepted after the demise of &quot;<a href="https://en.wikipedia.org/wiki/Substantive_due_process" rel="nofollow noreferrer">substantive Due Process</a>&quot;, mostly in a civil, rather than criminal context. A version of it was suggested in  <a href="https://en.wikipedia.org/wiki/Lochner_v._New_York" rel="nofollow noreferrer"><em>Lochner v. New York</em> 198 U.S. 45 (1905)</a>, in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York *</p>
<p>In <em>United States Department of Agriculture v. Moreno</em> 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:</p>
<blockquote>
<p>[A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.</p>
</blockquote>
Specific cases
<ul>
<li><p>In <em>Eisenstadt v. Baird</em> 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.</p>
</li>
<li><p>In <em>James v. Strange</em> 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 <em>Gideon v. Wainwright</em>.&quot;</p>
</li>
<li><p>In <em>Bowers v. Hardwick</em> 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned..</p>
</li>
</ul>
<h3>Vagueness</h3>
<p>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.</p>
<h3>Procedural protections</h3>
<p>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).</p>
<h3>Other Limits</h3>
<p>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.</p>

<p>There is the constitution as written, and then there is the <a href="https://www.congress.gov/constitution-annotated/" rel="nofollow noreferrer">"annotated constitution"</a>, the latter is the constitution along with all the major cases that set case law and defined the various sections and amendments thereof.</p>

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

<p><strong>As such, the <em>general</em> answer to your question, like most legal questions, is:</strong></p>

<h1>"it depends"</h1>

<p>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).</p>

<p>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":</p>

<ol>
<li><strong>Rational Basis</strong> — Does the <em>government interest</em> have a <em>rational basis</em> 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.</li>
<li><strong>Exacting (Intermediate) Basis</strong> — This stronger scrutiny is used when there is an "<em>important</em> 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).</li>
<li><strong>Strict Scrutiny</strong> — This strongest test of the constitutionality looks to determine if there is a "<em>compelling</em> 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.</li>
</ol>

<p>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).</p>

<p>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 <em>fundamental right</em> then you would only have to pass the "rational basis" test, and rational basis includes "imagined or hypothetical reasons".</p>

<p>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: <a href="https://ij.org/wp-content/uploads/2015/03/neily_ny_journal.pdf" rel="nofollow noreferrer">https://ij.org/wp-content/uploads/2015/03/neily_ny_journal.pdf</a></p>

<p>The city of Seattle, WA recently (April 2019) passed an ordinance <a href="https://council.seattle.gov/2019/04/15/closed-captioning-to-be-required-in-public-accommodations/" rel="nofollow noreferrer">requiring all businesses with televisions in public spaces</a> (e.g. bars, restaurants, airports, etc.) to enable <a href="https://en.wikipedia.org/wiki/Closed_captioning" rel="nofollow noreferrer">Closed Captioning</a> 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.</p>

<p>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.</p>

<p>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.</p>

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

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

<p>There are only 3 ways to get rid of such bad laws:</p>

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

<p>On that last point, however, a person must have <a href="https://en.wikipedia.org/wiki/Standing_(law)" rel="nofollow noreferrer">legal standing</a> 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).</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>There is a concept <a href="https://en.wikipedia.org/wiki/Strict_scrutiny" rel="nofollow noreferrer">"strict scrutiny"</a> 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. </p>

<p>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. </p>

<p>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.</p>

<p>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.</p>

<p>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).</p>

<p>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.</p>
