Comment on Trump’s Allies Say They’ll Enforce the Comstock Act. Believe Them.
Pandemanium@lemm.ee 5 months agoBecause there’s nothing automatic about our law passing process. How many years is the right amount to strike an old law from the books? You wouldn’t want something like the abolishment of slavery to ever become automatically unenforceable. So now you need someone to decide on a case by case basis which laws should still be on the books… well, that’s what the Supreme Court is for. They don’t reconsider every law, though. It seems to be at their discretion.
Bro I’m talking about a law put out of enforceability by a judicial ruling or a new law passing.
Why does that ruling or new law automatically remove the old law from the books?
Why was Arizona’s weird civil war era law still on the books after Roe completely made it illegal?
baltakatei@sopuli.xyz 5 months ago
Laws on the books made invalid by precedent do create ambiguity. Ambiguity is problematic because it introduces an element of unpredictability to a system. The US legal system, with its Common Law tradition, deals with that ambiguity with the doctrine of stare decisis. (Latin: Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed”) which says similar court cases should be treated similarly unless a higher court determines that the precedent was wrongly decided or societal changes warrant a different interpretation. The Comstock Laws (i.e. Comstock Act of 1873) generally prohibit sending any material or literature useful for or promoting contraceptives, abortion, or pornography. Over time, various Supreme Court cases have affected the applicability of these prohibitions, but have not eliminated them completely:
The Comstock Act of 1873, despite being mostly narrowed over time by the above cases, has been recently applied. For example, in Texas, punishment from USC 1462 (“Importation or transportation of obscene matters”) was applied in a 2022 child pornography case in the context of sending obscene materials over the Internet. If enough Supreme Court justices decide to overturn the above cases, then the Comstock Laws could be mostly reinstated. However, the process would likely be extremely contentious and stall after enough people vote out the political faction pushing to make their lewds, contraceptives, and abortions illegal.
Basically, old laws are like legacy code; old libraries that are dependencies for many newer laws which require the version history of the entire stack to be interpreted properly. Yes, it is a baroque tangle, but until people lose faith in the judicial system and replace it in a revolution, society runs on it.