So in yet another issue of ridiculous laws, the legislature had the ability to overturn a law which by all accounts is a violation of the separation of church and state as established by the First Amendment, the so called “Blue Laws.”
For those unaware, a blue law is a law regulating the ability for a business to partake in a regular activity as a result of the activity either going against a sacred tenant of a religion, or essentially mandating that a business must be closed during a holy or sacred period, to allow time off for the presumed majority who participate in the faith.
In North Dakota, we currently have what has been described as perhaps the strictest blue laws in the nation by many pundits and critics which disallows all but a small portion of businesses to be open before noon on a Sunday.
The reasoning for these laws is to support the Christian tradition that Sunday is a holy day, and that Sunday service typically begins at around 9 a.m., and can start as early as 6 a.m. in some places, or as late as 10:45 a.m., so laws must exist to allow for individuals to attend their worship.
While this sounds questionable in theory, as it forces secular, Christian and non-Christian business owners to acknowledge and support a faith at the expense of their own revenues/beliefs, it also violates the endorsement clause of the first Amendment, which states that a government cannot provide endorsement for any major religion, or support preferentially one religion over another.
Unless the state legislature chose to mandate business close and electricity shut off on Saturday’s off for those of the Jewish faith, or business to play a very loud horn on and close for 15 minute intervals four times a day to Muslims with a sign denoting the direction towards Mecca, than clearly the government is supporting one religion over another, and forcing Christian protectionism onto these people, while not forcing protectionism of other religions onto non-Christians.
As of the time of writing this article the votes were tallied with 48 in favor of repealing the law, with 46 against, and as a result this unconstitutional legislation, much like the anti-homosexuality portion of the North Dakota Constitution remains law, law which has no legal standing, and law that cannot be enforced, but law nonetheless.
If the repeal didn’t pass this would moves us once again into the conversation we desperately need to have about the American legal system as a whole, that there must be a mechanism for those adversely affected by a law which violates the Constitution to sue, without having to already have sufficient resources that the law has no tangible impact on them.
As an example, should someone want to force the state of North Dakota to follow the U.S. Constitution on this issue, or should a business owner be convicted of the Class B misdemeanor [the same as a DUI for those playing at home], it would cost them anywhere from half a million to a million dollars to force North Dakota to comply with existing federal law. This as a system, promotes people to simply plea guilty and pay the fine [$500 give or take], rather than have the protections guaranteed by our government actually given to them.
Furthermore, due to the concept of state sovereign immunity, North Dakota could not be compelled to financially compensate affected individuals for damages wrought as a direct result of this law, unless the state consented to do so, which it will never do. Therefore the burden of the million dollar lawsuit falls solely on the business. Further disturbing, is North Dakota can then immediately pass a new law with a difference of one word, and the multi-million dollar process would begin anew.
In short, we the people have no way to force the legislature to follow the constitution, since there is no penalty for non-compliance, so long as the majority continues to re-elect these people.
Lastly, this is not a hypothetical conversation, as John Stossel has famously pointed out on his television episode “Regulation Nation”, despite a family being cleared of all wrong-doing by a court for the first counts of the “crime” and therefore having their penalties waved, the agency decided to continue fining them for the same offense, on all days after the initial verdict. As a result, they were forced to sell the property, as they could not afford to contest the fine [$35,000/day].
We clearly live in a broken system, when the government can violate the law as often as they choose, while the citizens have no legitimate redress to the criminal actions of the government, because the government is immune to civil penalties. In our legal system both parties pay their own legal fees, which means whoever has more money wins, which will always be the government, for the intuitive reason that they can simply fine you to get more money for their illegal actions to fund the case against you.
To summarize, we are at the mercy of legislators who clearly do not care about the constitution despite calling for limited government and a return to original intent, and we currently have no redress against them.
Our only hope is to remove these legislators who would stomp on civil liberties, which seems unlikely when a law benefits the majority at the expense of a minority.
The great fear of our founders “Tyranny of the majority” has become a reality, as a direct result of our legal system allowing legislators and governments to have no penalties for passing or upholding, unconstitutional laws.
Dave Owen is an opinion writer for the The Dakota Student. He can be reached at [email protected]