Would that it were so - the courts can and do entertain facial challenges to laws and state actions all the time. Suppose your state were to make castration the penalty for jaywalking - must we wait until someone is actually facing that sentence before we act, or should not the courts be able to determine that such a law is invalid on its face, under the Eighth Amendment? Or maybe you don't think it's "cruel and unusual"? ;)
That it's "supposed to be treated differently" does not establish that not treating it differently in any way limits our autonomy as individuals, which is what the 14th amendment proscribes.
You may be right, but given the state of First Amendment law, this is still ultimately a normative argument. Whether or not it should be treated differently, it is treated differently, and not without some historical and legal justification, either.
In such an instance there's a declared intention to commit a violation. It's no longer a question of "potential". The only way for the authorities to comply with the statute is to commit a violation. Typically, at that point, someone seeks an injunction to prevent enforcement. Injunctions are devices used to order someone not to take an illegal action. They can not be used to order someone to refrain from doing something perfectly legal (for example, installing a radar detector in his vehicle) on the grounds that it might give him the ability to commit an illegal action. That would be making up new law, not applying existing law (unless, perhaps, the court were to issue an injunction based on common law. But even still, common law is judge-made law, so there'd still be "new law" involved, something federal judges do not have the power to create with regard to the Constitution).
[That it's "supposed to be treated differently" does not establish that not treating it differently in any way limits our autonomy as individuals, which is what the 14th amendment proscribes.]
You may be right, but given the state of First Amendment law, this is still ultimately a normative argument. Whether or not it should be treated differently, it is treated differently, and not without some historical and legal justification, either.
When you say that I "may be right", and then continue with the rest of your paragraph, I'm assuming that you're saying that the rest of your paragraph would hold true even if I actually am right. So in other words, even if I'm right that we haven't established a violation of the 14th amendment, the courts are basically going to rule that there's a violation anyway, because that's how they've always done it (at least since Brennan's day). Do I read you right?