So, I am currently reading about constitutional law which is a fascinating topic, and this has prompted me to write this post. This is actually something I have thought of a long time ago before I started to read about this topic, but I thought I would now put ‘pen to paper’ so to speak to get this idea out there. I do not have a problem with post facto repeals of law as a principle, since they are definitely needed, but my problem is that there are so many of them and sometimes it make take years for them to come to light resulting in damage to people and their rights to which laws and our legislators, and other officials, are entrusted to protect.
I have a problem with laws that are passed and eventually are found unconstitutional or have other problems, and are subsequently repealed with those, whose rights have been violated, have exactly no recourse or reparations for their violated rights and/or destroyed lives, beyond the repealing of the offending law. I think that this is a grave injustice to the American peoples whose lives and livelihood have been adversely affected.
The fact that there is no real recourse for the American people, or punishment per se for those that enacted such negligent laws, allows the perpetuation of such practices. There is a no real punishment or deterrent to our lawmakers for walking this path. They have the potential of not getting elected again or being impeached, right, but that potential is so small and not enough of a deterrent especially when they cater to a majority in trampling the rights of the minority. There is no real deterrent to not pass these unconstitutional laws. By the time that it comes around for the government to deal with the law those that passed the offending law may not even be in office and besides, someone else will be fighting both sides of the battle – not the legislators – the ones who sanctioned the law. State and Federal government is one thing, and I understand that local governments are in some ways a different story, but still there is something that needs to be done about that too.
Post Facto Repeals
I realize that our founding fathers, in light of the common governmental philosophies and examples of the time, think that having the judicial branch as a post facto (after the fact) method of solving these deficiencies is enough, but the post facto nature means that damage is already done to those people’s rights who have been violated. The communities then were smaller and word traveled quickly about such things, and the revolution and standing up for your rights was the thing to do then, but now a days our communities are huge, spread apart, and disconnected, and long past the forgotten revolutionary mindset. The United States is huge and the common people are far removed from the law creation process and our legislators. We live in a very different world than our founding fathers could have ever imagined.
One of the very foundational principles of our government is that government is there to ensure the protection of our Life, Liberty, and Property (LLP). I belive that the passing of these unconstitutional laws and their subsequent need to be repealed as gross negligence on the part of our governmental and civil leaders, and their passing of these laws is a violation of their oaths and a violation of our rights to LLP. I understand that there are going to be some laws that are going to make it through which are borderline and need to be dealt with, but there should not as many as there are.
There are some laws that take decades for someone to say something about and finally do something about it. There is a lot of social pressure to not rock to boat. If you take a look at the animus and violence surrounding the gay rights movement, the school prayer, and ten commandments issues then you will know what I mean. People are afraid to stand up for their rights due to potential adverse social reactions regardless of how right they are. This fact allows for the perpetuation of violations to our rights out of fear and that is an unAmerican result.
When these unconstitutional laws are passed and several years go by and damage is done to the US citizens. This is wrong and a violation of our government’s job of protecting our rights and not being apart of the violation process.
Now, I cannot imagine that our lawmakers do not have some sort of judicial opinions being thrown at them as they are legislating new laws, but with as many laws as there are that need to be repealed I find it hard to see that there is. Perhaps it might be because I am more active in thinking and reading about civil rights stuff that I may be more sensitive to it, but still there are these laws that are getting passed and they are hurting people who have no recourse or reparations besides the agonizing process of pursuing a repeal.
There needs to be more pre facto work done on these laws so that they either never get passed or that they are reformed to be made constitutional prior to be being submitted for approval. I understand that many of these laws get passed in the heat of the moment and under great socio-polical pressure where legislators are more concerned about keeping their jobs than doing things right, or they maybe caught up in the emotion of the “national” moment, but they still have an obligation to protect our rights and to not be part of violating them.
What can be done?
I understand that our government officials can not be held directly liable else they will be not allowed to do their job out of fear, but we need some way to hold them accountable for their actions or install a deterrent for them to be party to passing such laws, but here are some of my thoughts and I know for obvious reasons that most of these will not work, but here is what came to mind:
- 3 strikes rule – government officials who pass 3 laws that need to be repeal loose there jobs.
- fines – government officials who pass laws that need to be repealed are fined
- reparations – those people whose rights are violated are compensated by the government and the violations are corrected. Sort of a class action lawsuit against the government.
- amicus briefs – allowing for the filing of amicus briefs from all interested parties so that legislators can have more informed opinions from those outside the legislative process and the potential legal consequences
- open content – posting laws to a public website for comment
- subpoenaing legislators – during the repealing process require the legislators who passed the bill to testify and defend their actions
Perhaps you people have better and more elegant ideas about this?