Jessica’s Constitution

WHEN POPULAR democracy comes up against the Constitution, democracy must stand aside -- or at least wait its turn. That is the fate confronting Proposition 83, also known as Jessica’s Law, which was approved overwhelmingly by California voters Tuesday and stayed by a federal judge Wednesday.

The law would ban people convicted of certain sex offenses from living within 2,000 feet of a school or park and would track such convicts by global positioning satellite for the rest of their lives. Proponents touted the GPS part of the law as a groundbreaking, high-tech answer to keeping children safe while conserving law enforcement resources. And the provision about schools and parks, referred to as the “no-live” zone, has proved wildly popular. Television personalities such as Nancy Grace and Bill O’Reilly correctly spotlight the policy failures that endanger children, then take it over the top with their harangues against states that fail to enact and enforce the most draconian versions of criminal laws.

But it is the Constitution that is “the supreme law of the land”-- that’s Article VI -- and not even Jessica’s Law can change that. After Proposition 83 passed with more than 70% of the vote, a man who pleaded no contest 15 years ago to a non-aggravated felony went to court, complaining that he would have to leave the home in which he now lives with his wife. It turns out that it’s within 2,000 feet of a school or park, and even though the plaintiff has done his time and, he argues, is living a clean life and poses no danger, he must register as a sex offender. California’s version of Jessica’s Law -- the farthest reaching of any state’s -- does not distinguish between him and any new defendant convicted of a sex crime.

A federal judge blocked enforcement of part of Proposition 83, and properly so. Few things are more important than protecting the lives and safety of children. One of them, however, is protecting the constitutional values that set the United States and its legal system apart.

It may turn out that Jessica’s Law is too sweeping. Or it may be judged constitutional; a hearing on whether to lift the stay or issue an injunction pending trial will be held the Monday after Thanksgiving. But even though their will has been delayed, voters won’t lose much. In fact, as citizens who enjoy the constitutional protections of due process and individual liberty, they stand to gain a lot.