§ 4.03 Policy Factors in Enforcing the Constitution

§ 4.03 Policy Factors in Enforcing the Constitution¹⁶

[A] In General

Courts are often called upon to determine whether a criminal statute, or the punishment of an offender pursuant to statute, violates one or more of the constitutional principles summarized in Section 4.02. In determining whether a violation has occurred, various competing principles come into play.

In some sense, the Constitution is divided against itself.¹⁷ On the one hand, the document embodies the principles of separation of powers and federalism, which are doctrines that suggest that courts should hesitate to intervene in constitutional disputes to declare a legislature's action unconstitutional; on the other hand, the Constitution guarantees persons certain fundamental rights, which means that the judiciary will sometimes need to act forthrightly to ensure those rights against legislative encroachment. These competing policies are briefly explained below.

[B] Separation of Powers

Many judges are reluctant to intrude on the lawmaking domain of the legislature because members of the latter branch of government are elected, whereas federal judges are appointed and hold office for life. Although judges in many states are elected, legislators are viewed as more immediately subject to the will of the public.

Because criminal laws intimately affect the lives of citizens and are intended to represent the moral values of the community, judges generally believe that, whenever possible, they should defer to the wishes of the public as represented by legislative action. As a consequence, courts presume the constitutionality of criminal statutes, i.e., the party attacking a statute must demonstrate its constitutional invalidity.¹⁸

[C] Federalism

State governments have primary authority for defining and enforcing the criminal laws of their respective jurisdictions. The Constitution does not give the federal government the right to compel statutory uniformity among the states. In fact, legislative experimentation and interstate diversity is welcomed in our federal system.

Left to their own devices, state legislatures are apt to generate criminal codes that differ from each other in key respects. For example, State X might consider marijuana usage a serious threat to the health and safety of the community and seek to prohibit it through criminal laws, whereas the people of State Y might consider such conduct safe or consider it better controlled through drug education. At the same time, State Y...