Yesterday, in a short, frustrated entry on promulgation, I forgot to mention a curious nuance that nobody seems to talk about—the promulgation of bad law. All the time, state and federal courts are discovering, with the help of scrutinous litigants, that certain legislation is unconstitutional. But, as the courts are striking these laws down, the legislatures aren’t always paying attention. So a non-lawyer who starts poking around his state code could find a number of statutes that are unenforceable and never know it. And that non-lawyer could be a police officer, a sheriff, or some other civil servant making legal decisions on behalf of the state.

This problem doesn’t get much coverage. In fact, I’ve researched it and found only one item that does more than just mention it, a Salt Lake Tribune article from last December titled “Killed by Courts, Some Laws Live on in the Utah Code.” It reports nearly ten Utah statutes known to be unconstitutional still languishing in the code. Part of the problem, apparently, is political. Few Utah legislators, the article surmises, want their voting record to include a “yes” for the bill to repeal the state’s sodomy and abortion laws, even though they’re unenforceable. See, e.g., John Valentine, Utah Senate President, on repealing Utah Code section 76-9-601, which makes it a crime to abuse the United States flag: “Even if it’s allowed under the Constitution, I have a hard time being objective on that one.”

And then you have Mark Shurtleff, Attorney General of Utah, who thinks laws like the sodomy statutes should remain on the books—notwithstanding that the Supreme Court of the United States has declared their kind unconstitutional—because they have “significant pedagogical value.” They “teach people what they should and should not do, based upon the experience of their elders,” Shurtleff says, while acknolwedging that he’s unlikely to charge any Utahns with sodomy.

Promulgation of bad law is an area that’s a little easier to sort out than the promulgation of good law, where I’m still mostly stumped on choosing policy. Most of us, though maybe not Mark Shurtleff, would agree that promulgating bad law is ridiculous. And moreoever, I think this is fertile ground for legal argument. The Salt Lake Tribune article, indeed, quotes Utah ACLU Director Dani Eyer claiming that bad law on the books “just doesn’t give adequate notice to the public.” How to make that a live controversy for presentation to a court is a good question, but if you did you could marshall consitutional authority for your cause. Is this a starting point for a constitutional theory of public legal education? Or at least for a theory against public legal deception?