I'd like to see a law penalizing legislators who pass a blatantly unconstitutional laws, to pay for the waste of time and taxpayer money spent arguing in in the court system.
The only way to determine that a law is unconstitutional is for it to go through the courts, and the decisions the courts make shifts heavily based on the philosophical concepts of the judges. These can range from a passivist strict-constructionist viewpoint in which the Court takes the narrowest possible interpretation of the written law and tries to make the decision cause as little change as possible to an activist loose-constructionist one where the court interprets the law as broadly as the law allows while setting out to push the country in the direction desired. While neither extreme is inherently bad, neither is inherently good either. There's plenty of room to debate in which category notoriously bad decisions such as
Plessy v. Ferguson and
Dred Scott v. Sanford fall into, just as it can be hard to determine the viewpoint where unambiguously good decisions such as
Brown v. Board of Education Of Topeka or
Miranda v. Arizona fall back to, but the fact remains that the courts, up to and including the Supreme Court, make mistakes.
That is why decisions only work backwards in time, affecting the currently extant laws and the people affected by those laws. The only way in which they apply forward in time, affecting laws not yet passed, is in the form of precedent. Precedent is an important concept and guideline in the courts, and is an excellent tool for evaluation of a new law, but it is not binding - while no judge can overrule the Supreme Court on a given case, they can decide to rule differently on the next one that comes down the road. Going back to the unarguable pile, this is exactly what happened in
Brown. If precedent was binding on the courts, Brown would have been thrown out immediately, as
Plessy had already ruled that segregation was legal. Because precedent is
not binding, they were able to evaluate on the merits of that individual case, decide that segregation is
not legal under the Constitution, and fix the mistake.
I keep going back to the same limited number of examples for the simple reason that they are non-controversial - nobody here is likely to say that Plessy was the right decision and the Court should have stayed out of it. However, it does have the issue of being a law that was initially upheld, but struck down in a later case rather than a law that was struck down, passed again, and upheld. Unfortunately for the discussion, I can't think of any non-controversial examples of the latter, so I'm going to have to go with what I know of your politics. Imagine that the courts ruled tomorrow that the Brady Bill was unconstitutional. Would you be as eager to say any legislator trying to reintroduce
that "blatantly unconstitutional law"? Or would you decide that, since you would (presumably, based on everything I've seen of you) disapprove of that decision, it's okay to try to repass the law even though you're eager to oppose somebody trying to repass a law struck down by a decision you agree with?
A law like you're talking about shoots democracy right in the heart. Either it leads to situation where the decisions of a very small group of men and women long dead are impossible to reevaluate or reinterprit (essentially carving every single final court decision indelibly into the Constitution that was deliberately left loose to avoid this problem); or else it leads to whichever party that is in power being able to throw the opposition in jail or drive them into bankruptcy on a whim as anything the minority tries to do gets labeled "blatantly unconstitutional" by the majority.
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Topic: Murrican Politics Megathread 2016: There Will Be Hell Toupée (Read 1546919 times)