In a democracy numerous opinions are available in the public marketplace and under certain situations even the most absurd ideas can capture the attention of enough individuals to give them an undeserved level of power. Unfortunately the radical polarization of politics in modern times, especially in the United States, has increased the probability that these more foolish and at times dangerous ideas attain some form of prominence. In this vein it has become more commonplace that legislators, at both the state and federal level, push the balance of legal precedence and Constitutional contradictory in their legislation. This hubris has the potential to create unnecessary problems and devalue the history and stability of United States.
One of the more important aspects of government is to ensure efficient, but fair economic development. This aspect is betrayed when legislators pass unconstitutional legislation because it produces unnecessary economic expenditures both in opportunity costs and actual capital spent by various individuals and/or groups that successfully challenge the unconstitutional law in court. This abuse of power stems largely from legislators placing their own personal beliefs over their duty to the office of which they are elected. In addition legislators are freely allowed to leave this priority hierarchy unchallenged because there are no legitimate consequences to legislators that attempt to push these inappropriate boundaries.
Some would argue that the consequence for “constitutionally overreaching” (passing unconstitutional legislation) is a factor for consideration by constituents during reelection. However, this mindset is flawed because the weighed importance of overreaching is so low in the opinion of the vast majority of the voting public that it is akin to having no punishment at all. Some could counter-argue that the lessened importance in the eyes of public demonstrates that overreaching is not important, but this mindset is not appropriate because it assumes that relative importance is more important than absolute importance, which is not an appropriate assumption.
Constitutions, be it state or federal, create the foundation of the law for the given environment and it is important to respect that stability. Of course a constitution can be changed, but that change must be handled appropriately. For example one can only look at the fickleness of California voters to witness the complete mess that they have made of their foundation because changing the California State Constitution is much easier than other state constitutions or the federal constitution. Therefore, to argue that constitutional overreaching is not an important issue because voters do not appreciate its importance is wrong. However, if voters cannot appreciate the importance of punishing those who attempt to consume public resources by passing unconstitutional legislation during the offender’s reelection period then there must be an inherent punishment system assigned to compensate for such a reality.
What type of system and consequence would be appropriate? For most politicians their chief goal is to be reelected to future terms and as mentioned voters rarely care about constitutional overreaching so what punishment can be applied that does not involve depending on voters? Depending on legislative colleagues to dispense a proper penalty is foolish idealism. For example the administration of censures and expulsions at the federal or state level has been limited despite a variety of “questionable” pieces of legislation that have been deemed unconstitutional by the courts. Also if such power becomes more expansive in the hands of various legislators then one political party may attempt to consolidate their power by trumping up charges against another political party, thus making a mockery out of this issue with petty political games.
One strategy that could work would be a demerit system where every legislator that voted in favor of a bill that was later overturned by the courts as unconstitutional would receive a demerit on their record. These demerits could not be removed from the politician’s record (i.e. they are not removed if the politician retires and then returns or during a new election cycle). Two demerits would lead to a 10-year ban from politics in the offending state for state legislators and a 20-year ban from politics at the federal level for federal legislators and both scenarios would result in an immediate removal from current office. The selection of two demerits is suitable because one demerit is too little because it does not demonstrate an honest level of intent to defy a state or the federal Constitution or may compensate for a radical politicized court ruling whereas three demerits are too much because it would difficult to even acquire three demerits, thus mitigating its effectiveness as a consequence for it would take an extremely brazen individual to actually trigger the consequence.
It is unlikely that legislators pass any bill that would involve the aforementioned consequence for inappropriate constitutional overreaching, especially when some are planning to take the very action that would be punished. Therefore, the voting public would have to take the reins of creating such a rule-consequence structure, but not enforcing, through a referendum or initiative process. The probability of potential success in passing this type of referendum seems very high because there are almost no detriments to this type of consequence for it dramatically increases the probability of less government waste and reduces government overreach, an issue in which numerous people express concern.
The only genuine potential problem with this feature is a flood of misbehavior and resultant enforcement. There could be a logistics concern if numerous legislators receive their second demerit simultaneously creating a situation where double-digit legislators are removed from office. Such a large number of removals could create excess financial strain on state resources due to both the absence of legislators generating quorum problems and the logistics of conducting a special election to fill so many seats. However, the probability that such a logistic straining event actually occurs is incredibly unlikely because few legislators would actually violate the above conditions and accept such severe consequence only for the purpose of attempting to “break” the rule; therefore, this potential problem should not be regarded as a significant problem in the evaluation process.
Overall it can be argued that there is no widespread problem of constitutional overreach, but there are also no consequences for any individuals who attempt to overreach, which has happened numerous times in the past. The above strategy to apply consequences to such legislative action is straightforward and simple to apply with meaningful consequences and limited overhead associated with enforcement. Therefore, whether or not the above strategy or another one with teeth is applied, a meaningful consequential safeguard is needed, especially in this radicalized political environment, to limit the ability of an individual to unjustly assault the constitutional foundation of a state or the federal government.