Say the legislature passed a law which made it a felony to wear a baseball cap backwards. There would be legislative history that indicates the legislators passed this law because of the problem of gangs in society. The legislative history further indicates that gangs are dangerous. The legislature heard testimony that gang members display what gang they are affiliated with by the clothes they wear. Moreover, citizen injuries have resulted when gang members wore their hats backwards as an insult to rival gangs. Therefore, the legislature passed this criminal statute to address this problem.
I wonder how many courts would have the judicial stamina to look past legislative sophistry and call bullshit on a stupid law? The bigger question here is do citizens have any protection when legislatures pass silly laws?
Wearing a hat backwards cannot be criminal in a democratic America. Hopefully, a trial court would honestly apply the law and strike down such a statute since wearing a hat backwards is constitutionally protected. This conduct is like members of the National Socialist Party who wish to parade through a predominately Jewish community in uniforms reminiscent of those worn by members of the German Nazi Party while saluting the swastika. While distasteful, such conduct is, and must always be, constitutionally protected. Collin v. Smith, 447 F.Supp. 676 (N.D.Ill.1978), aff’d, 578 F. 2d 1197 (7th Cir. 1978). As in the case of the uniformed Nazis saluting and marching through Skokie, wearing a hat backwards cannot allow a police officer to reasonably suspect someone of a crime based upon that conduct.
Why does the government have the right to tell me what to wear or not wear? There is little to be found in American history concerning a person’s right to choose his personal appearance. This situation exists because it was thought to be such a fundamental right that its existence was taken for granted. For instance, there was considerable debate in colonial America about what rights should be specifically enumerated in the Bill of Rights. See, Hamilton, Madison, Jay, The Federalist Papers, (1961) Chap. 38, 84; Jefferson, T., On Democracy (Saul K. Padover e.d. 1939) p.47. During the 1789 Congressional debates, there was much discussion about whether the right of assembly should be mentioned in the Bill of Rights. Brant, I., The Bill of Rights (1965) p.53-67. It was in the midst of this discussion that Congressman Benson of New York stated this right should be included so that it could not be infringed upon by the government. Congressman Sedgwick of Massachusetts responded by stating:
If the committee were governed by that general principle… they might have declared that a man should have a right to wear his hat if he pleased… but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed. Id., at 54-55. Emphasis added.
The history of the adoption of our Bill of Rights demonstrates that our forefathers clearly believed there to be a right in one’s personal appearance but was of such a trifling nature that it need not be included in the enumerated rights contained in the Bill of Rights. Therefore, court’s have found that one’s personal appearance is deserving of constitutional protection. Peppies-Courtesy Cab Co. v. City of Kenosha, 165 Wis. 2d 397; 475 N.W.2d 156 (1991) (ordinance requiring cab drivers to cut hair unconstitutional); Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969) (personal hair length is personal freedom protected by the United States Constitution). Clearly, the choice of what a person wears is a matter of taste for the individual and not a matter of regulation by the government. Cohen v. California, 403 U.S.15, 25 (1971) (wearing jacket with the words “Fuck the Draft” on it). The right to control the appearance one’s own body necessarily means a person has the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. Olmstead v. U.S., 277 U.S. 438,478 (Brandeis, J., dissenting). The right to one’s own personal appearance is a personal freedom protected under the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969). The right to your personal appearance is “implicit in the ‘liberty’ assurance of the Due Process Clause.” Richards v. Thurston, 424 F.2d 1281, 1284 (1st Cir. 1970).
The hat law is an example of when the legislature may have a good intent but the outcome stinks. What about other situations? Is there a protection against stupid laws? As with so much else in law, the question is answered depending on how you define a term; in this case, “stupid law.” If by stupid one means irrational, yes a citizen does have a protection against a stupid law.
Due process demands that a deprivation of property may occur only in accordance with “law.” An arbitrary government action with no rational principle is not a law. Timothy Sandefur, The Conscience of the Constitution 79-84 (2014). As constitutional historian and scholar Edward Corwin put it, a government act “may at times part company with ‘true law’ and thereby lose its title to be considered a law at all.” Edward S. Corwin, The “Higher Law” Background of American Constitutional Law 11 (1955). Emphasis added.
The founders shared this understanding of due process of law. The people who drafted and ratified the Fifth and Fourteenth Amendments were steeped in a historical tradition that granted substantive meaning to “law.” This tradition stemmed from influential British interpretations of the Magna Carta’s “law of the land” clause. See Timothy Sandefur, In Defense of Substantive Due Process, or the Promise of Lawful Rule, 35 Harv. J.L. & Pub. Pol’y 283, 287 (2012) [hereinafter In Defense]. Lord Edward Coke’s treatise, The Institutes—which deeply influenced the founding generation—equated this “law of the land” language with “due process of law.” Id. at 288; Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process, 58 Emory L.J. 585, 607, 662 (2009). Coke believed that “law of the land” or “due process of law” meant that the sovereign could only deprive someone of their rights through a law rooted in rationality. Sandefur, In Defense, supra, at 288. He said the Magna Carta forbade an irrational government act because it lacked the foundation of genuine law. His contemporary, Francis Bacon, made a similar observation: “In Civil Society, either law or force prevails. But there is a kind of force which pretends to law, and a kind of law which savours of force rather than equity.” Francis Bacon, Aphorism 1, reprinted in The Philosophical Works of Francis Bacon 613 (John M. Robertson ed. 1905).
The founding generation—intimately familiar with “force which pretends to law”—embraced this view. Gedicks, supra, at 611-12, 618. A government action that lacks a coherent explanatory principle is arbitrary and violates Coke’s rule of rationality. Sandefur, In Defense, supra, at 292, 302, 328-29. If a government act does not serve a legitimate end—including fundamental notions of justice—that act violates due process of law. As James Madison wrote, in his essay on property: “[T]hat alone is a just government which impartially secures to every man whatever is his own.” James Madison, Property, reprinted in James Madison: Writings 515 (Jack N. Rakove, ed. 1999). And the corollary: “[T]hat is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.” Id. “[A]n assertion of authority that rests on no basis other than the fact that the authority has asserted it” violates due process. Sandefur, In Defense, supra, at 292. Justice Chase famously espoused this view in Calder v. Bull: “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact; cannot be considered a rightful exercise of legislative authority.” 3 U.S. (3 Dall.) 386, 388 (1798). This Court has since affirmed this understanding of “due process of law” as “something more than mere will exerted as an act of power.” Hurtado v. California, 110 U.S. 516, 535-36 (1884). A deprivation of rights may only occur through an act authorized by a legitimate law, not an act of arbitrary “law”.