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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 c

by ctolsen 11y 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 Law is no longer in force and the people get their redress.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 11y 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 11y 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 11y 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 11y 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 11y 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.
    - vidarh 11y ago
      I don't know the specifics here, but as far as I know it is fairly rare for constitutions to have language that specifically make it illegal for their politicians to pass a law. The US is a strange outlier there with its use of phrases like "Congress shall make no law (...)". The issue is not that elections give people a status that puts them beyond the constitution, but that the constitutions rarely make it a crime to pass unconstitutional laws at all: In most cases of unconstitutional laws, the laws tend to be unconstitutional not because it is against the law to pass them, but because the rules they add can't be reconciled with portions of the constitution in question, and so are found to be invalid or similar. Even in the case of the US - or any other countries with similar language - note that even in those cases constitutions specifically does not (at least not in any case I know about) follow the pattern of a criminal code: It does not set criteria for punishment. So even if you were to get a court to assign blame and e.g. "convict" Congress, there would be no consequence. If you want politicians to be punished for passing such laws, then that in itself would require a massive constitutional change. Generally you should assume that this is intentional, given that the judiciary is explicitly separate and independent, and so one can rarely assume that individual politicians can know whether or not any given law will at some future date be found to conflict with the constitution. Especially given that interpretations of constitutional law, as any other, tends to evolve over time. Sure - there might be the odd really blatant attempt at passing something silly - but those really blatant attempts are also the least dangerous and least important, as they will be struck down quickly. The dangerous ones are exactly the ones that are sneakily enough formulated that they stand a chance to escape unscathed. But then, those are also the ones where it is unreasonable to assume that the people voting for it had reason to believe it would be unconstitutional.
chriswarbo 11y 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 11y 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.

by ctolsen 11y ago

jsnathan 11y 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 11y 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 11y 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 11y 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 11y 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.
  - vidarh 11y ago
    I don't know the specifics here, but as far as I know it is fairly rare for constitutions to have language that specifically make it illegal for their politicians to pass a law. The US is a strange outlier there with its use of phrases like "Congress shall make no law (...)". The issue is not that elections give people a status that puts them beyond the constitution, but that the constitutions rarely make it a crime to pass unconstitutional laws at all: In most cases of unconstitutional laws, the laws tend to be unconstitutional not because it is against the law to pass them, but because the rules they add can't be reconciled with portions of the constitution in question, and so are found to be invalid or similar. Even in the case of the US - or any other countries with similar language - note that even in those cases constitutions specifically does not (at least not in any case I know about) follow the pattern of a criminal code: It does not set criteria for punishment. So even if you were to get a court to assign blame and e.g. "convict" Congress, there would be no consequence. If you want politicians to be punished for passing such laws, then that in itself would require a massive constitutional change. Generally you should assume that this is intentional, given that the judiciary is explicitly separate and independent, and so one can rarely assume that individual politicians can know whether or not any given law will at some future date be found to conflict with the constitution. Especially given that interpretations of constitutional law, as any other, tends to evolve over time. Sure - there might be the odd really blatant attempt at passing something silly - but those really blatant attempts are also the least dangerous and least important, as they will be struck down quickly. The dangerous ones are exactly the ones that are sneakily enough formulated that they stand a chance to escape unscathed. But then, those are also the ones where it is unreasonable to assume that the people voting for it had reason to believe it would be unconstitutional.

chriswarbo 11y 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 11y 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.