4 ms·

The problem is that there’s no disincentive to creating laws that are eventually found unconstitutional — a malicious actor is capable of producing ill-formed l

by setr 4y ago

The problem is that there’s no disincentive to creating laws that are eventually found unconstitutional — a malicious actor is capable of producing ill-formed laws faster, cheaper and with less effort than it takes to identify and remove them. So responsibility isn’t really the issue — the problem is that you can simply overwhelm the other party to make them impotent, and impossible to execute on that responsibility (because if they double their resources, you produce 4X the garbage). Ideally you would have lawmakers incentivized to produce laws, that upon review, are constitutional, but it remains the supreme court’s jurisdiction to determine that constitutionality. Like try spamming the FDA drugs unlikely to pass scrutiny — they’ll just shut you out — so you’re incentivized to try to submit something reasonably likely to pass.

singleshot_ 4y ago
I get what you’re saying but I think we approach this from different philosophies (which is fine). I agree that there is no disincentive to passing laws that the judiciary will nullify (other than the fact they get nullified and have to be replaced). The “malicious actor” of whom you speak appears to me to be the representative of the populace, from whom all power derives, and accordingly I see this as a feature, not a bug. The only incentive they should need to pass useful laws is re-election. My ideal would be that the courts would interpret and make law, but that political questions like “what comports with the Constitution” would be solved at the ballot box, in the legislature, or with the veto pen, as was intended. The idea that the judicial branch could be made “impotent” via repeated passing through the duly empowered legislature of bills signed by the duly empowered executive seems like exactly the right amount of power for what was considered by Article III. The courts are, after all, currently the strongest part of our constitutional system.

by setr 4y ago

singleshot_ 4y ago

I get what you’re saying but I think we approach this from different philosophies (which is fine). I agree that there is no disincentive to passing laws that the judiciary will nullify (other than the fact they get nullified and have to be replaced). The “malicious actor” of whom you speak appears to me to be the representative of the populace, from whom all power derives, and accordingly I see this as a feature, not a bug. The only incentive they should need to pass useful laws is re-election. My ideal would be that the courts would interpret and make law, but that political questions like “what comports with the Constitution” would be solved at the ballot box, in the legislature, or with the veto pen, as was intended. The idea that the judicial branch could be made “impotent” via repeated passing through the duly empowered legislature of bills signed by the duly empowered executive seems like exactly the right amount of power for what was considered by Article III. The courts are, after all, currently the strongest part of our constitutional system.