What makes something 'constitutional'? - Granite Grok

What makes something ‘constitutional’?

Here’s a little thought experiment.  Let’s say the New Hampshire constitution says something.  Call it x.  But the legislature passes a statute saying the opposite of that, ~x. The governor signs it.  And when challenged in court, the Supreme Court approves it.  Two questions:

First, is this statute constitutional?

Second, if so, at what point in the process does it become constitutional?  When the bill is sent to the governor?  When the governor signs it?  When the court approves it?

To make this easier to think about, let’s take a concrete example.  The state constitution says that all persons have the right to keep and bear arms.  So suppose the legislature passes a statute saying that this only protects the ownership of pointed wooden sticks, and only for males between the ages of 30 and 40.  The governor signs it.  The law is challenged, and the court upholds the law.

Would anyone in his right mind say that the law is constitutional?

I know what you’re thinking.  Something that extreme couldn’t happen.  But you’re wrong.  It already has.  Article 83 of the NH constitution says:

Free and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it.

The court decided that this means the state must set up a monopoly to hinder free and fair competition in the industry of education.  It would be harder to think of an interpretation that is further from the plain meaning of the words of the article.

But the legislature passed statutes based on this interpretation.  Governors signed them.  And the courts have upheld the laws against challenges.

This is exactly as constitutional the hypothetical law described earlier.  But one of them would cause massive civil disobedience, while the other has been accepted without question.

I have heard a state senator, and a state representative (whom many think of as a ‘constitutional scholar’), argue that if a statute has been enacted and hasn’t been struck down by the courts, then the statute limits the constitution, rather than the other way around.  (One of those arguments went like this, almost verbatim:  ‘Article 2-a can’t mean that all persons can have firearms, because we have statutes that prevent certain people from having them.’)

But think about what this means:  If a bare majority in the legislature, and a governor, and a bare majority in the Supreme Court, can effectively negate or reverse a constitutional provision by statute, then there’s really no point in having a constitution at all.  This is about as close as you can get to pure majority rule.

With that in mind, I urge you to read the statute that invited His Excellency to promote himself from Governor to Emperor, and ask yourself:  At what point — if any — did that statute become ‘constitutional’?