It should always be this easy

Posted by Marc Hodak on July 15, 2008 under Stupid laws | Read the First Comment

New South Wales quickly passed a law to limit protests against the Pope’s upcoming visit. Australia’s federal court just as quickly invalidated the law.

Legislatures feel bound to pass new laws. They don’t get rewarded for not passing laws. It’s especially easy when the target of those laws are unpopular groups. In Australia, a group of gays exercising their free speech rights regarding the the Church’s stance on homosexuality would qualify.

I often wonder about the necessity of an “anti-legislature,” a body devoted to eliminating unnecessary laws, to neutralize the worst effects of legislatures. It turns out that the most effective anti-legislature, if it ever awoke from its constitutional coma, would be a judiciary committed to upholding the principle of enumerated powers. This episode provides a lesson in how simple it would be to end this pointless deference to a legislature with a regulatory scheme. It takes this kind of smack-down to shame a legislature into controlling its unconstitutional impulses.