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.
I am not sure about what he actually did that was criminal (i can read the things he has been convincted for but they are very vague), how much if anything people lost and so on.
But starting from the idea that he stole billions from people of course death is reasonable? it's worse than 25 years at 30, but how isn't stealing billions an exceptional serious crime?
Well that's what I am asking you. I'm wondering what we would do to someone who stole 8 billion from people.
Edit: Which you answer. We execute him.
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 legisl
You asked why this is a terrible idea. I haven't read any of the replies, but here is my answer for the United States.
First, constitutional questions very often are not clear cut, in part because constitutions tend to be oriented around principles that require interpretation as society and technology evolves. For example, when the Fourth Amendment was written, thermal imaging was beyond anyone's contemplation. After thermal imaging became possible, courts had to decide whether it constituted a "search," and the right answer to that question was far from obvious.
Second, you seem to be exempting people who act based on precedent. This is a nonsensical formulation. There is almost always precedent. It's just a question of how analogous the precedent is, which is where a lot of the disagreement arises.
Third, you seem to be contemplating a world in which courts give advisory opinions on the constitutionality of legislation that has not been passed. Courts in the U.S. won't give advisory opinions of this sort. And even if they did, it would take 18-24 months to go through the first level of appeal unless you expedited this specific class of cases.
Fourth, giving every citizen standing to challenge the constitutionality of laws would be an absolute cluster****. The courts would be completely overwhelmed. Also, it would lead to truly gratuitous forum shopping and tons of inconsistent decisions, especially at the district court level.
Fifth, under your regime, it either would be impossible or a complete waste of time to get legal advice on the constitutionality of a proposed action. I assume that the lawyer loses his license only if he advises you that something is constitutional that a court later determines is unconstitutional. (In other words, I assume a lawyer would not lose his license for advising you that something is unconstitutional that a court later decides is constitutional.) In that case, an unethical lawyer would simply take your money and advise you that the proposed action is unconstitutional even if he believed otherwise. An ethical lawyer simply would refuse the proposed engagement. For example, suppose that my honest, well-reasoned view as a lawyer is that a court more likely than not would decide that a proposed action is constitutional. But the outcome is not certain, especially in Luciom-world where any citizen can challenge constitutionality in any jurisdiction. Am I going to be willing to do the research and give you my honest opinion in exchange for $20k or whatever if I lose my law license if I am wrong? Definitely not. I will just decline the engagement.
Sixth, the net effect of what you are proposing is that government would never do anything. Even if that is your goal (and I know it is), this is a convoluted and inefficient way to achieve the goal.
Sixth, the net effect of what you are proposing is that government would never do anything. Even if that is your goal (and I know it is), this is a convoluted and inefficient way to achieve the goal.
An excellent point. Instead of this roundabout way of making the government afraid to use its powers, we could just reduce the government's powers directly.
An excellent point. Instead of this roundabout way of making the government afraid to use its powers, we could just reduce the government's powers directly.
That's exactly what the constitution is for.
But they found out that they can disregard it and the worst that can happen to them is that months or years later their choices stop having effect, so they push that every time.
My take was just a possible way to reduce the amount of pushing against the cage we decided they should stay in that they could attempt without repercussions.
Remember that anyone who governs us in a democracy is our servant, not the other way around.
Every electric fence in Luciompotia is set to deliver a lethal charge if touched.
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 legisl
I would just say that I first don’t think you did what you set out to do. Actions are found unconstitutional all the time, but very rarely if ever do they actually have no lawyer arguing that the law is constitutional. Even in decisions where there are 9-0 rulings, for the most part there is an adversary arguing it’s constitutional. Also, the court doesn’t just rule on constitutionality but also on statutory interpretation, so just because a court rules against you that doesn’t mean they are per se making a ruling about constitutionality.
The second thing I would say is you are acting like courts are unimpeachable. This would contribute very harshly to partisanship in the court, because presidents would want to guarantee at least one incredibly partisan member of the supreme court that would always argue for constitutionality in all cases. By trying to strengthen the court, you would incentivize other branches to attack the judiciary. Why would congress not go to war with or undermine the court if they had this power?
I recommend reading Federalist 51. He talks about what happens when you give way too much power to the judicial branch.
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.
The legislature is by design just meant to be checked by the supreme court, not ruled by it. That’s because they are appointed for life, whereas the legislature and executive has a direct check every 2-6 years.
I personally think that the court itself, a very conservative court, seems to favor a fair bit of immunity for both executive and legislative acts, and they also seem to care a lot more about standing than you do. I find that somewhat perplexing that you are naive to think that this new strict system isn’t open to abuse.
Also even if it was fairly applied, the bar for proving intent seems so astronomically high that the court would be useless.
That's exactly what the constitution is for.
But they found out that they can disregard it and the worst that can happen to them is that months or years later their choices stop having effect, so they push that every time.
My take was just a possible way to reduce the amount of pushing against the cage we decided they should stay in that they could attempt without repercussions.
Remember that anyone who governs us in a democracy is our servant, not the other way around.
So, in practice, the state imprisons everyone who voted for the Patriot Act?
This is odd because you've in past posts said that all laws are justified because of the democratic process to enact such laws. You even justified fugitive slave laws in the process.
So, in practice, the state imprisons everyone who voted for the Patriot Act?
This is odd because you've in past posts said that all laws are justified because of the democratic process to enact such laws. You even justified fugitive slave laws in the process.
I "justified" -> claimed they were legitimate, which has nothing at all to do with favouring them, fugitive slave laws at the time of enactment because they were constitutional.
Which is why the constitution was then amended to ban slavery.
I never said "all laws are justified", you are making this up.
Re the Patriot act, if my provisions had been in place it wouldn't have passed in that form which is kinda the whole point.
My whole point is that horrendously unconstitutional stuff like the Patriot act wouldn't enter in effect to devastate basic rights of citizens and only belatedly, years later, be curtailed by courts.
Courts would have a say before any citizen got touched by it, the say would be "lol no this is utter crap", and constitutional rights would be protected.
Even if you disagree with jail time for perpetrators, what's to disagree with waiting for constitutional review before putting such a law into effect?
I "justified" -> claimed they were legitimate, which has nothing at all to do with favouring them, fugitive slave laws at the time of enactment because they were constitutional.
Which is why the constitution was then amended to ban slavery.
I never said "all laws are justified", you are making this up.
Re the Patriot act, if my provisions had been in place it wouldn't have passed in that form which is kinda the whole point.
My whole point is that horrendously unconstitutional stuff like the Patriot
I disagree with imprisoning legislators for attempting to legislate, but constitutional review by an extension of the judicial branch is reasonable for policy to be enacted. The current system is reactionary and pretty messy in itself.
The problem is that -- in practice -- this judicial branch would be politicized and would just serve as a third house of Congress. The check on legislation is the POTUS.
On fugitive slave laws, the context was the legal status of migrants. You claimed, in short, that migrants should be deported for breaking the law and that politicians who granted them sanctuary should be jailed, IIRC. The thing with amendments is that the idea behind amendments is that they're retroactive. An idea isn't constitutional at the moment the Constitution is amended. The idea is that the amendment was always constitutional and just enumerated at the time of ratification.
Current system is the opposite of reactionary.
It allows "progress" (IE radical change) to comes into place and do a lot of damage before being stopped by courts.
The judiciary process is already political.
POTUS has limited veto powers, and there is no veto equivalent on executive orders in any other branch of government.
Adding veto powers can only limit the amount of damage, never i crease it.
Worst that can happen is a provision doesn't enter into effect and you are where you were before concocting it.
Can't do active damage.
//
As for amendments no you are completely wrong, please ask anyone with legal knowledge.
FDR third term wasn't illegitimate, he wasn't an illegal president during the war.
It was legitimate at the time, then the constitution got amended because the People thought it would be better to limit terms to 2.
No retroactive effects, laws signed by him didn't get rescinded and so on.
The same is true for any amendment.
Current system is the opposite of reactionary.
It allows "progress" (IE radical change) to comes into place and do a lot of damage before being stopped by courts.
The judiciary process is already political.
POTUS has limited veto powers, and there is no veto equivalent on executive orders in any other branch of government.
Adding veto powers can only limit the amount of damage, never i crease it.
Worst that can happen is a provision doesn't enter into effect and you are where you were before concoct
Amending the articles (what government can do) and rights of the people (what the government cannot do) are different actions.
BTW, I have a JD, LLM, and I've taught ConLaw for 15 years, despite not being a Marxist.
I see what you're saying. I meant reactionary int hat the SCOTUS inadvertently reacts to damage done by the law, whereas you're saying something can't become law without judicial review. This is incredibly cumbersome on the part of the courts. How this body is appointed or elected will be so politicized that they'll be extensions of what already exists. So, despite sympathizing with some of what you're saying, the end result is just delaying legislation to come into effect. The POTUS veto power is probably the best worst solution. Which is why know-nothings like Trump are incredibly dangerous.
Amending the articles (what government can do) and rights of the people (what the government cannot do) are different actions.
BTW, I have a JD, LLM, and I've taught ConLaw for 15 years, despite not being a Marxist.
No they aren't, which is why women got the right to vote through an amendment, but that didn't make previous elections where they couldn't vote illegitimate by any mean.
No part of the American constitution is "unmodifiable", amendments could restore slavery or any other horrific right violation you can think of.
An amendment could get passed to change citizenship status as well, and everything else you can think of.
Ask colleagues, maybe you are still in time to get a refund from your law school.
Btw you previously said you taught political science.
No they aren't, which is why women got the right to vote through an amendment, but that didn't make previous elections where they couldn't vote illegitimate by any mean.
This didn't delegitimize previous elections, but it stated that women were wrongfully denied the right to vote.
No part of the American constitution is "unmodifiable", amendments could restore slavery or any other horrific right violation you can think of.
The Ninth Amendment cannot be interpreted that way, so no.
Constutional law is political science.
I don't think you understand what the Constitution is and why it exists. A lot of your posts on jailing people for free speech displays a blatant disregard for the 1A, your posts on excluding legislators you don't like are a blatant disregard for legislative immunity, and I don't think you've ever given the 9A much thought.
I don't think you understand what the Constitution is and why it exists. A lot of your posts on jailing people for free speech displays a blatant disregard for the 1A, your posts on excluding legislators you don't like are a blatant disregard for legislative immunity, and I don't think you've ever given the 9A much thought.
I dont have posts asking to jail people for free speech in the USA.
I am evidently talking about changing the constitution in this thread though, so your other objection is incomprehensible.
btw the 9th was about rights that were commonly hold nationwide when it was written, yet not enumerated.
slavery was legal, women didn't have an automatic right to vote, so it wouldn't apply at all.
something like the right to own animals could apply, if some crazy politicians passed a law making it illegal nationwide to own dogs the 9th would plausibly apply, because it was widely considered to be on obvious right that people could own dogs, when the 9th was written.
nothing to do with a purported protection of rights from amendments though. any amendment forbidding a previously guaranteed right would simply supersede the 9th.
I disagree with imprisoning legislators for attempting to legislate, but constitutional review by an extension of the judicial branch is reasonable for policy to be enacted. The current system is reactionary and pretty messy in itself.
The problem is that -- in practice -- this judicial branch would be politicized and would just serve as a third house of Congress. The check on legislation is the POTUS.
Some sort of constitutional review body conceivably could exist for the sole purpose of reviewing the constitutionality of new statutes, but what Luciom has in mind--specifically, elimination of current rules on standing and review of proposed legislation upon request by whoever--is absurd and unworkable.
I dont have posts asking to jail people for free speech in the USA.
I am evidently talking about changing the constitution in this thread though, so your other objection is incomprehensible.
If you wanna do away with legislative immunity, lol, good luck with that.
btw the 9th was about rights that were commonly hold nationwide when it was written, yet not enumerated.
slavery was legal, women didn't have an automatic right to vote, so it wouldn't apply at all.
something like the right to own animals could apply, if some crazy politicians passed a law making it illegal nationwide to own dogs the 9th would plausibly apply, because it was widely considered to be on obvious right that people could own dogs, when the 9th was written.
nothing to do with a purported
The 9A is not about commonly held rights not enumerated.
The 9A is about rights implied by the Constitution not enumerated. That the government should not be removing rights from people, no matter how popular such measures would be.
You wanna remove legislative immunity, OK, but you've talked about rounding up people who have interpretations of the Constitution that you don't like. I think it was you who said that people protesting the Gaza war should be rounded up for aiding and abetting the enemy. Many constitutions around the world differ in many ways. Ours in U.S. explicitly protects that speech, as the purpose of the 1A is to protect the right to air out grievances against government policy. Especially the deplorable speech.
A right isn't implied in the constitution if it isn't a living right at the time the constitution is implemented.
9a means government can't remove rights that exist when the 9a passed, even if not explicitly listed in the constitution.
There is no penumbra.
/
Wrt protesting , I never said that. I said they should be investigated and material supporters should be treated as harshly as possible, as allowed under the law.
Specific claims though can be different.
Asking for a global intifada is explicit incitement in favour of a foreign power to attack the USA, it could not be covered by the 1a.
We had a discussion about the specific "death to America" chanting. I was agreeing with you there that it wasn't enough to justify treating them as terrorists, but they should all be monitored by the FBI at the very least the same way you would treat neonazis, and any legal excuse to ruin their lives should be used, to the full extent of the rather big corpus of the law.
Throw the books at them basically, treat them as one of the biggest domestic threats possible, while formally respecting the constitution of course.
A right isn't implied in the constitution if it isn't a living right at the time the constitution is implemented.
9a means government can't remove rights that exist when the 9a passed, even if not explicitly listed in the constitution.
There is no penumbra.
/
Wrt protesting , I never said that. I said they should be investigated and material supporters should be treated as harshly as possible, as allowed under the law.
Specific claims though can be different.
Asking for a global intifada is explicit i
lol are you actually trying to lecture a Con Law prof on the Constitution? gl, bro.
A right isn't implied in the constitution if it isn't a living right at the time the constitution is implemented.
You might want it that way, but this isn't true.
9a means government can't remove rights that exist when the 9a passed, even if not explicitly listed in the constitution.
The right to privacy in the doctor's office, the household, the church, and the bedroom would disagree with you. There's no sodomy amendment, but we recognize the right to consensually butt****.
Wrt protesting , I never said that. I said they should be investigated and material supporters should be treated as harshly as possible, as allowed under the law.
Specific claims though can be different.
Asking for a global intifada is explicit incitement in favour of a foreign power to attack the USA, it could not be covered by the 1a.
We had a discussion about the specific "death to America" chanting. I was agreeing with you there that it wasn't enough to justify treating them as terrorists, but
Without supplying the enemy with munitions, aid, classified information and the like, this "incitement" is protected by the 1A where the conduct is not a risk of causing violence. Shouting for intifada is absurd, immature, uneducated, and vile, but it's a lower degree on the sliding scale of protected speech than Trump encouraging the mob (because of the scope, the explicit target, and his power) to storm Congress and even those waters are admittedly murky.
The U.S. government spying on its own citizens is frowned upon because it's dangerous, but we shouldn't be naive enough to believe that it doesn't happen, extrajudically. The government has always taken a "better to ask for forgiveness than permission" approach to this. You don't really believe that the FBI isn't monitoring left-wing protest movements, especially where they are highly organized, do you?
I'm not even gonna get into your "treated as harshly as possible" rhetoric becuase this is inherently anti-American. If there's evidence of violent crime organization, fine, charge the perps and sentence them accordingly after conviction, but you're inching toward going back to McCarthyism here.
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 legislati
Your posting history makes you out to be very, very far from a libertarian or libertarian-leaning, though it is clear that you like the image of libertarianism. I realize it is often a hazy concept, especially due to the high number of crypto-conservatives that dub themselves libertarians. Still, libertarians don't really run around calling on state power constantly, and they certainly aren't fans of supercharged judiciaries.
In this thread you come across more as a Stalinist.
