Questions A Judge Might Ask To See If A Law Is Vague.

In testing whether or not a law is unconstitutionally vague, the judge has to ask some leading questions of the prosecutor. Some may even leave some in the courtroom giggling. But there's a reason.

Going back to at least 1879, with the California Pigtail Ordinance of 1873, the US Supreme Court has held laws are unenforceable, if they are too vague for a law abiding person to understand, if their enforcement is arbitrary and obviously meant to harass just one innocent group, or if the punishment even, seems unusual for that type of offense.

And some laws, though well-intentioned, are just unfair. Like in Bennis v. Michigan, which said a state can confiscate a man's car for soliciting a prostitute, even if it is his wife's car, the justices said there is a compelling state interest in stamping out those types of crime. But John Paul Stevens pointed out, by that reasoning, if one person on a large passenger cruise ship "sinned", does that mean the state can confiscate the whole ship?

And take for example laws that are meant to deal with people or places where things tend get unruly to begin with. For example, and comedian and political commentator Bill Maher used to point out, there are laws in some states that make it illegal to have an erection visible thru your clothes. And even a very conservative judge might ask, well, how visible? And you mean in every place? Even a supermarket or church? Why are you watching men's crotches so closely? And what about men who are more well endowed? Doesn't that put them at a disadvantage to begin with? Isn't that a status crime then? Laws against visible erections are meant for topless bars. When police raid them, they want to haul all the men there in. But to simply be there is never a crime. So they look around. Even the men who are fully clothed might have visible erections at that point. So they arrest them for that reason then. So as not to leave anyone behind who was there that day, when they make a raid.