The price of breaking the constitution is too low in western countries
I have been mulling over this topic for a while and i think it's one of the main reasons people on all political sides feel their constitutional rights aren't respected enough even in western countries.
A mechanism should be in place to punish any violator of the constitution extremely harshly.
How? let's see how it should work in practice for me, at the federal level in the USA (it should apply at state level for the state constitution as well, and ofc in other countries as well).
You are a legislator, or member of the executive in an executive function, of law official, or anyone else acting under the power of the law.
Your actions are later confirmed to be a violation of the constitution by a court , with appeal confirming, or by SCOTUS. You didn't act under precedent, nor with legal counsel specifically telling you they thought your actions were constitutional.
Well, at a very minimum you should be barred from holding office (elected or otherwise) for life, and to work for the state in any capacity, always for life. You should be kept away from state power like a child rapist is kept away from children.
And under judgement of the court that finds your actions unconstitutional, depending on the severity of the constitutional breach and statutes written for the purpose, you should potentially go to jail, potentially for a long time, and/or pay damages to the victim(s) of your constitutional violation(s) (from personal assets).
What would that generate as a second order effect? that anyone using state power wouldn't even dream of doing any action that isn't 100% transparently and uncontroversially constitutional.
That any shade of doubt about that, even the slightest, would convince the actor to ask the courts BEFORE enacting his legislation/EO/agency decision (yes rules have to be amended to make it the case that courts can be asked about the constitutionality of a statute/EO and so on BEFORE it is enacted. it is incredible this isn't the case already).
*if legal counsel tells you it was constitutional and it wasn't, you don't pay anything and they lose their license
Results: state power will behave according to the constitution and it's interpretation by the judiciary, everyone wins. Except people who hate the constitution that is.
Another needed change would be to change standings rules: everyone should be able to have standing in contesting the constitutionality of any action by any part of government just by being a citizen of a country.
This is a truly terrible idea.
Who's going to run all of the prisons in Lucio-world?
This presupposes that all constitutional questions are cut and dry and violators are acting with malice or indifference. If this were the case, the Supreme court wouldn't have so many cases on its docket, and arguably wouldn't even need to exist. A quick search tells me that the SC is asked to review 7,000 cases each year, of which it grants cert to 100-150. Almost every single one of those is going to be a constitutional issue, since that's pretty much the only cases it hears.
This presupposes that all constitutional questions are cut and dry and violators are acting with malice or indifference. If this were the case, the Supreme court wouldn't have so many cases on its docket, and arguably wouldn't even need to exist. A quick search tells me that the SC is asked to review 7,000 cases each year, of which it grants cert to 100-150. Almost every single one of those is going to be a constitutional issue, since that's pretty much the only cases it hears.
No it doesn't. That's why the expected outcome would be to ask about the constitutionality before enactment. That would be a lot better than allowing any unconstitutional disaster (malicious or not) to be enacted and then pray for a stay.
Cases are a lot currently exactly because the system incentivizes stretching constitutional limits as much as you hope can work to achieve your aims, if it's gray enough you might even have your unlawful act have effect for some time, while the opposite should be the norm, ie don't even try if there is any gray area don't do it, simple as that. It's incredible there is no price to pay to try that (and clog the courts while doing it).
That would be the optimal outcome my proposed changes try to achieve.
Rococo said everything that needs to be said, but I'll give a lengthier reply.
Barring people from holding office because they have violated the law is a popular debate. In the public arena, the debate gained a lot of traction after Donald Trump was convicted of crime.
To put this power in the the hands of the courts is a horrible idea, because it gives government a tool to persecute political opposition. It does not matter if you think the current government would not do this, because nobody has a crystal ball to predict how things will look like in five years, ten years or fifty years.
I'd very much like it if incompetent idiots and criminals like Donald Trump did not hold any political office, but I would very much dislike it, if he could be disqualified from office by legal shenanigans. There is impeachment for this (and many other democracies have similar types of proceedings) that is a better fit, because it is both a political and legal process.
Having to ask the court permission for your actions as a member of the legislative or executive branch is bad for two reasons. The first is obvious: The courts would be usurping the power of the executive and legislative branch, which corrupts the system of checks and balances. The second is again that you give government a tool to persecute political opposition, because it would be up to the executive branch to put force behind the courts' decision, and they could chose to do so selectively.
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Last of all, which is more a comment on your themes on this board than this OP in particular: You have in several posts proclaimed yourself a libertarian (or at least paid lip service), and you often rail about government overreach and regulation. Yet in post after post you seem to have a real soft spot for heavy-handed government intervention that is a better fit for authoritarian or totalitarian governments. A cynic might start to suspect that your acceptance or dismissal of heavy-handed government is based mostly on whether you like their ideology or not.
Enacting an additional pseudo-veto power isn't usurpation of powers, rather the opposite. And it increases checks and balances, it doesn't decrease them.
Anything that in any way reduces the potential range of actions of government increases freedom not the opposite.
As a libertarian leaning person, i believe that the best thing government can do about the vast majority of things is absolutely nothing. Staying out of it. Which makes any possibility of delaying or blocking executive and legislative decisions a moral and practical positive.
Not sure why you also object about the government prosecuting selectively, as i explicitly wrote any citizen would have standing to contest the constitutionality of every action by anyone acting under the power of the state (this includes police decisions and everything else).
And again it wouldn't by ANY guilty verdict that bars you from running and working for the government. Only those about breaking constitutional limits, which anyone could initiate at any time.
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My proposal here would mean a lot less power for the executive and parliament, and more veto mechanisms among institutions , for a net total of less power of government (the power to block actions is never the same as the power to enact new action).
It is not being pro "heavy handed government intervention" to create more roadblocks for executive and legislative action, rather the literal opposite.
On the same page, i also would like the filibuster mechanism to become permanent by a constitutional amendment.
No it doesn't. That's why the expected outcome would be to ask about the constitutionality before enactment. That would be a lot better than allowing any unconstitutional disaster (malicious or not) to be enacted and then pray for a stay.
Cases are a lot currently exactly because the system incentivizes stretching constitutional limits as much as you hope can work to achieve your aims, if it's gray enough you might even have your unlawful act have effect for some time, while the opposite should b
You are missing the point. In most cases that end up making it to the SC docket, and certainly most of those that are granted cert, there is nobody to "ask about the constitutionality before the enactment" because the constitutionality hasn't been unequivocally decided yet. The whole point of appellate courts is they decide points of law on which the parties have differing views.
You are missing the point. In most cases that end up making it to the SC docket, and certainly those that are granted cert, there is nobody to "ask about the constitutionality before the enactment" because the constitutionality hasn't been unequivocally decided yet. The whole point of appellate courts is they decide points of law on which the parties have differing views.
Aside from the fact that no, a lot of the times it's about what exactly a statute means (and not whether a provision is constitutional or not), what i am saying is that this district-appeal-scotus path should be walked BEFORE THE STATUTE HAS ANY EFFECT ON SOCIETY AT LARGE AT ALL. If there is ANY uncertainty at all, stay it effective immediate, automatically, in all it's effects.
If you prefer another wording of a system that would be very similar to what i propose, imagine every decision gets stayed automatically and it has to be litigated to enter in effect, if any citizen thinks it's unconstitutional and wants to pay the legal fees for that.
To avoid frivolous lawsuits, regular procedures can apply (early dismissal if there is no basis, litigant pays all legal fees and so on).
Federal courts ALREADY have that power ex-post. I am just saying of giving them that power ex-ante
Aside from the fact that no, a lot of the times it's about what exactly a statute means (and not whether a provision is constitutional or not), what i am saying is that this district-appeal-scotus path should be walked BEFORE THE STATUTE HAS ANY EFFECT ON SOCIETY AT LARGE AT ALL. If there is ANY uncertainty at all, stay it effective immediate, automatically, in all it's effects.
If you prefer another wording of a system that would be very similar to what i propose, imagine every decision gets sta
The federal Supreme Court only hears cases constitutional matters when it comes to state and local laws. To that end it, it usually looks into the exact working and legislative history of a statute or regulation, but the ultimate goal is to rule whether it is constitutional or not.
You are suggesting that every statute enacted by every federal, state and local authority has to be reviewed by the whole chain of federal appellate courts?
The federal Supreme Court only hears cases constitutional matters when it comes to state and local laws. To that end it, it usually looks into the exact working and legislative history of a statute or regulation, but the ultimate goal is to rule whether it is constitutional or not.
You are suggesting that every statute enacted by every federal, state and local authority has to be reviewed by the whole chain of federal appellate courts?
no, the supreme courts can keep picking and choosing their cases.
We can grandfather in existing statutes for practicality (not giving them a blank check but keeping the old rules in action for those).
But yes for future ones for district + appeal (state or federal depending on the constitutional issue) IF someone is willing to challenge them. And not only statutes, executive orders and equivalents at all level including any city council decision and so on.
"but luciom, this would paralyze government".. hm no, blatantly transparently constitutional actions would keep working the same. It would paralyze any attempt to bend even a little state and federal constitutions though, which is the intended outcome.
Removing bad actors from society is one of the most important things to do to guarantee freedom for everyone else. I am not an anarchist.
America locks up more people than so-called prison states like Russia or China. Hilarious that a "libertarian" thinks it's not enough.
Like, who's going to staff all of these prisons? We're already breaking the bank funding police and jails.
Let's take recent very clear cut cases.
Say the Texan government dislikes Biden border policies and wants to intervene on the border in constitutionally dubious ways.
In that particular case, by puttin razor wire on the border, which impeded border patrol actions in various ways.
Now it's deeply unhealthy for the nation that Texas was allowed to even start the thing BEFORE it was clear if they could do it or not. It's simply insane.
A proper procedure would imply Texas get the permission to do X or Y on the border, given the very gray area of the law that touches, or not, by the same entities that we allow already to decide EX POST on the legality of those actions.
And only if cleared Texas would act within the limits of what the courts told Texas was possible.
No right would be violated in that case unlike what happened in reality , and for which nobody paid (insane tbh)
Aside from the fact that no, a lot of the times it's about what exactly a statute means (and not whether a provision is constitutional or not), what i am saying is that this district-appeal-scotus path should be walked BEFORE THE STATUTE HAS ANY EFFECT ON SOCIETY AT LARGE AT ALL. If there is ANY uncertainty at all, stay it effective immediate, automatically, in all it's effects.
If you prefer another wording of a system that would be very similar to what i propose, imagine every decision gets sta
I'm not a legal scholar but intuitively this seems like a terrible idea to me, both for practical reasons (which are admittedly not necessarily that important; Miranda was also a terrible decision going solely on practical reasons), and as a matter of principle.
America locks up more people than so-called prison states like Russia or China. Hilarious that a "libertarian" thinks it's not enough.
Like, who's going to staff all of these prisons? We're already breaking the bank funding police and jails.
Let's talk about the approx 150k people in federal prisons.
https://www.bop.gov/about/statistics/sta...
On one hand i would decriminalize a lot of behaviour which is currently criminal (i told you, i am libertarian).
With completly legalized drugs (and various other behaviours) like in my model jails wouldn't be as full as they currently are in the USA.
44% of inmates are in for drug offenses. My model immediatly halves the criminal population. Yes this include large scale sale of cocaine and the like. Yes, all drugs, consumption, possession distribution and fabrication, all legal.
Then there are non-american citizens, approx 15% of the inmates (yes i know a portion overlaps with the above). Automatic deportation outside the country to country of origin (could care less if they then spend time in jail there or not, not my business anymore), death penalty if you ever come back. No $$ spent to keep foreigners in prison.
Then there are the other crimes, a portion of which is committed for topics related to drugs (violence to control drug markets, violence to get the money to buy drugs and so on). All of that disappears with full legalization.
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On the other hand i would give the death penalty for a lot of behaviour that currently is criminal, with long sentences. Think of something like 15y of sentence or more -> automatic death penality.
Changing rules so that the execution is the day after appeal is lost, and no final, special, unique appeals should apply.
You lose the appeal, supreme court/governor has 24h to intervene, otherwise you are dead.
The combination of those 2 approaches would make the total prison population much smaller.
The 15% you refer to will most likely be deported after serving their sentence, at least those serving a sentence of 1 year or more. Automatic deportation of non-citizens without first serving a prison sentence for the crimes they committed is a really bad idea, DUCY?
The 15% you refer to will most likely be deported after serving their sentence, at least those serving a sentence of 1 year or more. Automatic deportation of non-citizens without first serving a prison sentence for the crimes they committed is a really bad idea, DUCY?
why? it's immoral (and completly useless) to spend money on their detention if an alternative exists
why? it's immoral (and completly useless) to spend money on their detention if an alternative exists
Because it takes away the spectre of punishment. Why not go out and rob and murder etc. if the worst that can happen is they put you on a plane home?
Under your proposal, it would be massively +EV for every sophisticated
(and even not so sophisticated) criminal in the world to attempt to enter the US to ply their trade there. The reward to risk ratio is through the roof. Quite honestly surprised I had to explain that.
Because it takes away the spectre of punishment. Why not go out and rob and murder etc. if the worst that can happen is they put you on a plane home?
Put you on a plane home, lose all assets in america, and can't ever re-enter under penalty of death. Deterrent enough.
Also, while you rob murder and so on you can easily get killed by police in action, it's not a license to do crimes lol.
Quite insane to prefer spending 40k/year/person
lol, we'll solve the problem by executing/deporting all the criminals, sounds like a foolproof plan.
lol, we'll solve the problem by executing/deporting all the criminals, sounds like a foolproof plan.
It's against forum rules to troll.
I just wrote half of the prison population would be free because the reason they are in won't be a crime anymore.
In my model there are fewer people in jail. You objected there would be more, and it's objectively false for the reasons explained.
Now you throw the ball to troll denying i wrote about decriminalizing a lot.
Why do you troll? it's against the rules.
And it doesn't have to be "foolproof", all it takes to be preferable, is that it works better than the current model. Which it would clearly: less people in jail -> less money wasted by taxpayers.
Italians and political power is a dangerous combination.
Thank the gods Luciom is just a keyboard warrior.
