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I wonder why politicians that enact unconstitutional laws don't get punished. They breached the rules. Everybody else except bankers and the police get punished

by madez 12y ago

I wonder why politicians that enact unconstitutional laws don't get punished. They breached the rules. Everybody else except bankers and the police get punished for that.

ctolsen 12y ago
Leaders who do unconstitutional things might be. If you trample on your citizens sufficiently, you might live to see the inside of the Hague. But it would be completely ridiculous to imprison someone for passing a law. The process here did exactly what it's supposed to do. Politicians make a law. People are unhappy with said law and challenge it. People win in court. Law is no longer in force and the people get their redress. Also, politicians might enact an unconstitutional law with popular support. And even if that doesn't happen, it is far from obvious what is constitutional and what is not. Should John McCain go to prison because of Citizens United? Should local politicians be incarcerated after the city lost McDonald v Chicago? That would be ridiculous. Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world.
- jsnathan 12y ago
  Intentionally violating the constitution is a violation of the privileges of office. If it can be proven, they should be forced out of office. As for the "punishment", it should clearly correspond to the actual law having been passed, and in what manner it infringed on the constitutional rights of citizens. Popular support does not make this any better, as minorities are usually the ones who end up hurt.
  - ctolsen 12y ago
    Politicians can be forced out of office for anything. It's called elections. Most countries also have some kind of impeachment process. Are you saying politicians shouldn't attempt to do what their constituents sent them to do, under the penalty of imprisonment? Minorities are protected not by politics, rather by judicial review, which worked great in this case.
    - jsnathan 12y ago
      Are you suggesting that elections should give people a status that puts them beyond the countries constitution? Remember that these principles are so general, they must apply equally to Western politicians pushing security policies, as to e.g. Muslim politicians in Egypt or other ME countries pushing for Sharia-inspired policies. What their constituents want is a nice idea until this violates the most basic rights of citizens spelled out clearly for this purpose, i.e. to guide and limit any future laws. That being said, there is always the possibility of revising the constitution. Even if that is not a good idea. But for good reason, that is a lot more difficult to accomplish.
      - ctolsen 12y ago
        It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.
        jsnathan 12y ago
        > It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. If transient violations that might take many years to resolve, and often present a slippery slope, do not face any censure, then they are practically above the constitution, even if there is a theoretical process. While you point out that it worked in this case, that is nothing but an anecdote. I could equally list many cases where the exact opposite is the case. Consider for example the difficulty faced in bringing security policies before the courts in the U.S., due to the government claiming that the very discussion of the details of the implementations of these policies would harm national security. > Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability. I'm sorry if I was unclear, but I tried to address both of these points in my first reply. Let me try again to put it more clearly. First, they should lose their office for abusing its privileges. This has nothing to do with the fact that they violated, or worked against the constitution specifically, but that they violated the oaths of their offices, which happen to preclude that. Secondly, the punishment does not require newly introduced 'ex post facto' laws, as you seem to be implying, but should be in keeping with the facilitation of the violation of actual existing laws, which prevented the unconstitutional actions from taken place before the new laws were passed. In other words, a politician that facilitates a law that unconstitutionally provides exceptions to previous existing laws, should be liable as an accessory to the crimes specified by that pre-existing law. As far as determing their complicity is concerned, I believe that the fact that most everything is on record makes that fairly trivial.
- chriswarbo 12y ago
  > Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world. We shouldn't do that in the modern world, but we do http://en.wikipedia.org/wiki/Anti-social_behaviour_order http://en.wikipedia.org/wiki/Anti-social_behaviour_order
- DannoHung 12y ago
  I dunno, maybe we oughta make it that way. Wouldn't it be nice if there was a chilling effect around passing laws that may step on someone's rights.
rayiner 12y ago
So if Justice Roberts was feeling slightly different one morning, we should have punished Obama for trying to pass an unconstitutional law?
- pcwalton 12y ago
  I agree that we shouldn't prosecute politicians for this kind of thing, but note that Justice Roberts feeling different one morning can mean the difference between punishment and not for ordinary people when the law in question is unsettled. (Morse v. Frederick comes to mind.)
Arnt 12y ago
Because there isn't a law against enacting unconstitutional laws. Actions are legal by default. I suspect that if you try to write a coherent rule set that would punish those who vote to enact unconstitutional laws, you might find the solution worse than the problem. For instance, think about the relationship between punishable votes and secret elections.
eli 12y ago
Sure, then we'll lock up developers who write insecure software. I think we'll need some bigger jails.

by madez 12y ago

I wonder why politicians that enact unconstitutional laws don't get punished. They breached the rules. Everybody else except bankers and the police get punished for that.

ctolsen 12y ago

Leaders who do unconstitutional things might be. If you trample on your citizens sufficiently, you might live to see the inside of the Hague. But it would be completely ridiculous to imprison someone for passing a law. The process here did exactly what it's supposed to do. Politicians make a law. People are unhappy with said law and challenge it. People win in court. Law is no longer in force and the people get their redress. Also, politicians might enact an unconstitutional law with popular support. And even if that doesn't happen, it is far from obvious what is constitutional and what is not. Should John McCain go to prison because of Citizens United? Should local politicians be incarcerated after the city lost McDonald v Chicago? That would be ridiculous. Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world.

jsnathan 12y ago
Intentionally violating the constitution is a violation of the privileges of office. If it can be proven, they should be forced out of office. As for the "punishment", it should clearly correspond to the actual law having been passed, and in what manner it infringed on the constitutional rights of citizens. Popular support does not make this any better, as minorities are usually the ones who end up hurt.
- ctolsen 12y ago
  Politicians can be forced out of office for anything. It's called elections. Most countries also have some kind of impeachment process. Are you saying politicians shouldn't attempt to do what their constituents sent them to do, under the penalty of imprisonment? Minorities are protected not by politics, rather by judicial review, which worked great in this case.
  - jsnathan 12y ago
    Are you suggesting that elections should give people a status that puts them beyond the countries constitution? Remember that these principles are so general, they must apply equally to Western politicians pushing security policies, as to e.g. Muslim politicians in Egypt or other ME countries pushing for Sharia-inspired policies. What their constituents want is a nice idea until this violates the most basic rights of citizens spelled out clearly for this purpose, i.e. to guide and limit any future laws. That being said, there is always the possibility of revising the constitution. Even if that is not a good idea. But for good reason, that is a lot more difficult to accomplish.
    - ctolsen 12y ago
      It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.
      - jsnathan 12y ago
        > It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. If transient violations that might take many years to resolve, and often present a slippery slope, do not face any censure, then they are practically above the constitution, even if there is a theoretical process. While you point out that it worked in this case, that is nothing but an anecdote. I could equally list many cases where the exact opposite is the case. Consider for example the difficulty faced in bringing security policies before the courts in the U.S., due to the government claiming that the very discussion of the details of the implementations of these policies would harm national security. > Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability. I'm sorry if I was unclear, but I tried to address both of these points in my first reply. Let me try again to put it more clearly. First, they should lose their office for abusing its privileges. This has nothing to do with the fact that they violated, or worked against the constitution specifically, but that they violated the oaths of their offices, which happen to preclude that. Secondly, the punishment does not require newly introduced 'ex post facto' laws, as you seem to be implying, but should be in keeping with the facilitation of the violation of actual existing laws, which prevented the unconstitutional actions from taken place before the new laws were passed. In other words, a politician that facilitates a law that unconstitutionally provides exceptions to previous existing laws, should be liable as an accessory to the crimes specified by that pre-existing law. As far as determing their complicity is concerned, I believe that the fact that most everything is on record makes that fairly trivial.
chriswarbo 12y ago
> Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world. We shouldn't do that in the modern world, but we do http://en.wikipedia.org/wiki/Anti-social_behaviour_order http://en.wikipedia.org/wiki/Anti-social_behaviour_order
DannoHung 12y ago
I dunno, maybe we oughta make it that way. Wouldn't it be nice if there was a chilling effect around passing laws that may step on someone's rights.

rayiner 12y ago

So if Justice Roberts was feeling slightly different one morning, we should have punished Obama for trying to pass an unconstitutional law?

pcwalton 12y ago
I agree that we shouldn't prosecute politicians for this kind of thing, but note that Justice Roberts feeling different one morning can mean the difference between punishment and not for ordinary people when the law in question is unsettled. (Morse v. Frederick comes to mind.)

Arnt 12y ago

Because there isn't a law against enacting unconstitutional laws. Actions are legal by default. I suspect that if you try to write a coherent rule set that would punish those who vote to enact unconstitutional laws, you might find the solution worse than the problem. For instance, think about the relationship between punishable votes and secret elections.

eli 12y ago

Sure, then we'll lock up developers who write insecure software. I think we'll need some bigger jails.