Is there a reasonable consequence to be imposed if a law maker sponsors or votes ...

[Metal god]

Is there a reasonable consequence to be imposed if a law maker either sponsors or votes for an unconstitutional law

Not sure if this is the right place for this or if it should be in the law section .

I know we have things on the books that don't allow us to civilly sue the individual law maker but there must be some sort of consequence they should pay for passing unconstitutional laws .

Jail time , law makers personally have to pay the court cost or paying a fine to some may seem reasonable but I've debated these things with others and it's been shown that they are not really reasonable . So I have a new idea , If you sponsor a bill that later is to be found unconstitutional . You no longer can hold ANY public office ever again after your current term expires .

I said sponsor but maybe we add voted for as well . It seems to me lawmakers often just pass laws and hope they stick knowing they are likely unconstitutional . One of the big issues for me is the government ( national , state or local ) has unlimited funds to defend these laws while we the people have to fight these laws with private money while they defend the law with the money we send them .

Now this is a firearm forum and firearms laws are what I'm mostly talking about here but with out naming them . I'm sure we all can think of laws trying to be passed on both sides that will likely be found to be unconstitutional . So although I'm talking firearms , this idea would go both ways for sure .

Just thought of another one . Maybe they lose there government retirement ?????

There should be a consequence for passing unconstitutional laws . I'll add that the ruling that would trigger the consequence would have to come from the supreme court , or would it ? If a lower court found something to be unconstitutional and the SCOTUS agreed they would not even need to here it and leave the lower court ruling in place ?????????????? Interesting , How would that work ?? How would it be implemented fairly and reasonably ?

Let me add and please ask that this not be rip each others ideas apart thing . I truly would like to know how we can impose "reasonable" consequences on lawmakers that continue to pass laws that are unconstitutional .

 

[JimPage]

The only legal option is your vote.

(I'm not a lawyer)

 

[Frank Ettin]

...I truly would like to know how we can impose "reasonable" consequences on lawmakers that continue to pass laws that are unconstitutional .

How sure are you that you want such a thing?

In 2005 Congress passed a law called The Stolen Valor Act*. That law made it a crime (misdemeanor) to:

...to falsely represent oneself as having received any U.S. military decoration or medal...

Basically the law recognized that claiming a decoration one has not earned is an insult to those who actually earned a decoration. Arguably the law furthered an important governmental interest in preserving the value of military decorations and supporting the dignity of those who actually earned them. In addition, the penalty for violation was relatively modest.

But as laudable as the purpose of the law was, it was still found an unconstitutional abridgement of the freedom of speech protected by the First Amendment (United States v. Alvarez, 567 U.S. ___ (2012)).

Should the Congress members who supported that law be penalized?

Questions concerning the constitutionality of a law are often difficult and complex. The only definitive determination that a law is unconstitutional must come from the Supreme Court, and the question might reach the Supreme Court, if it ever does, many years after the law was enacted.


The doctrine of legislative immunity is old and very well established. Basically, a legislator may not be subject to civil or criminal liability for actions performed and decisions made within the scope of his responsibilities as a legislator. This principle has a long history under the Common Law and is enshrined in the Constitutions of a majority of the States.

There are excellent policy reasons for the doctrine. Legislative immunity is arguably essential to effective implementation of the separation of powers and system of checks and balances core to our democratic republic. As the Supreme Court said in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), at 372 -- 374:

......The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. Roper, Life of Sir Thomas More, in More's Utopia (Adams ed.) 10. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for 'seditious' speeches in Parliament. Proceedings against Sir John Elliot, 3 How. St.Tr., 294, 332. In 1689, the Bill of Rights declared in unequivocal language: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 Wm. & Mary, Sess. 2, c. II. See Stockdale v. Hansard, 9 Ad. & El. 1, 113—114 (1839).

Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Article V of the Articles of Confederation is quite close to the English Bill of Rights: 'Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress * * *.' Article I, § 6, of the Constitution provides: '* * * for any Speech or Debate in either House, (the Senators and Representatives) shall not be questioned in any other Place.'

The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. 'In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.' II Works of James Wilson (Andrews ed. 1896) 38. See the statement of the reason for the privilege in the Report from the Select Committee on the Official Secrets Acts (House of Commons, 1939) xiv.

The provision in the United States Constitution was a reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege. The Maryland Declaration of Rights, Nov. 3, 1776, provided: 'That freedom of speech, and debates or proceedings in the Legislature, ought not to be impeached in any other court or judicature.' Art. VIII. The Massachusetts Constitution of 1780 provided 'The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever.' Part I, Art. XXI. Chief Justice Parsons gave the following gloss to this provision in Coffin v. Coffin, 1808, 4 Mass. 1, 27:

These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered....

Some may complain that this frees legislators from accountability for their acts. But our system was designed to hold them accountable at the ballot box. If we fail to do so, it's our fault.

___________

*Note: A different Stolen Valor Act was signed in 2013. This law more narrowly makes it a crime to:

...fraudulently claim having received any of a series of particular military decorations and awards with the intention of obtaining money, property, or other tangible benefit from convincing someone that he or she rightfully did receive that award....

This is more likely to be upheld in court.

 

[ATN082268]

Stolen Electorate

*Note: A different Stolen Valor Act was signed in 2013. This law more narrowly makes it a crime to:

Quote:
...fraudulently claim having received any of a series of particular military decorations and awards with the intention of obtaining money, property, or other tangible benefit from convincing someone that he or she rightfully did receive that award....

This is more likely to be upheld in court.

I'd like to see something along similar lines and the bill could be named, "Stolen Electorate.":

...Politicians fraudulently claim that they will do X, Y and Z when in office with the intention of obtaining money, property, or other tangible benefit (like being elected) from convincing someone that they should vote for them...

 

[zincwarrior]

Yea...no.

There is an easy remedy-vote them out of office.

 

[Frank Ettin]

I'd like to see something along similar lines and the bill could be named, "Stolen Electorate.":

...Politicians fraudulently claim that they will do X, Y and Z when in office with the intention of obtaining money, property, or other tangible benefit (like being elected)....

You're just being silly.

Yes, often campaign promises don't get kept. But --

1. No one elected representative can do it all by himself. If the political environment isn't right, he's just not going to get it done.
   
   
2. Sometimes a situation changes and what was a good idea becomes a bad idea.
   
   
3. Sometimes additional information (often not available until one has taken office) will turn a good idea into a bad idea.

Our remedy in the world of politics is always the same: if you don't like what the guy you voted for did, don't vote for him again.

 

[357 Python]

Sometimes it takes decades before a case is brought to the U.S. Supreme Court. How would you penalize someone who may no longer be in Congress or for that matter may be dead? There have been hundreds of laws that stood the test of time only to be overturned 30, 40, 50 years from the time it was signed into law. The only thing we as citizens can do to penalize members of Congress for bad bills is at the ballot box. You can vote them out or you can tell them what Trump might say, "You're Fired".

 

[Metal god]

Should the Congress members who supported that law be penalized?

YES , they all should have known that would fall under freedom of speech and a perfect example of law makers passing laws that sound good but are not constitutional . It's also not fare to bring up past cases because if there where a possibility of being thrown out of office for supporting it . It very well may not have passed .

I try to vote them out every time but I'm in CA and it's just not happening here . Are legislature as a web page set up so you can contact your representative but you can only contact yours . If you try to write to another rep and your address is not in there district the email/letter will not go through . The only other way to write is through USPS .

A year or two ago I was calling as many reps as I could ( not just my own ) and leaving messages or talking directly to a staff member for months at a time leading up to a vote . Not once did they vote against a anti gun bill .

That reminds me way back when my son was in grade school I went to a board meeting ( board of education ) to oppose something . To my surprise there were several hundred parents there wanting to address the board about the issue ( forget what it was now ) . The media was there as well . We all went up or at least most were able to speak before the big vote . Out of all the people that spoke only 2 spoke in favor of the action . After we were all done the board voted . Any guesses how they voted ??? Yep they ignored 99% of us and voted in favor of the measure

So as much as I understand your guys point of stand up , vote them out , write letters , donate to whom ever . It's not working man and hasn't for quite some time . At least not here in CA .

What if the person is no longer in office . Well I guess you take there first born Really nothing you can do there if they no long hold a public office . and I'm OK with that if they're still alive the rule still applies to them . They can't hold any public office again including if they are in a new elected office . They then can't run again after that term even if it's the presidency .

As for there's nothing legal we can do right now . My point here is to make this legal how ever it needs to happen .

 

[Frank Ettin]

...they all should have known that would fall under freedom of speech...

Well the reality is that you think that only because you really know nothing about law and have no idea how many laws which do in a variety of way abridge the freedom of speech and yet have been found to be constitutional.

... As for there's nothing legal we can do right now . My point here is to make this legal how ever it needs to happen .

Well our system gives you the right to try, so knock yourself out. But it's not going to happen, and it would be a lousy idea if it did. There are very good reasons why legislative immunity has been around for hundreds of years, and nothing has happened to change those reasons.

Indeed the vital importance of legislative immunity to a representative democracy was well outlined by the Supreme Court in the portion of the Tunney opinion I quoted above. You might not understand or appreciate the importance of legislative immunity, but that doesn't change the reality of it.

 

[iraiam]

As a constituent, I personally hold them all accountable for their votes, this can include voting for/against them or writing them letters, sometimes even harshly berating them in letters/emails. I reserve the right to tell any of them exactly what I think of their votes, character (or lack thereof), or complete lack of high functioning grey matter.

 

[Metal god]

Frank it's not like I'm saying put them in jail , tar and feather or worse . They just no longer can hold a public office . Id bet the reason they are immune is because back in the day people thought shooting them in the street was reasonable . My idea hurts nobody and seems reasonable . If you're passing unconstitutional laws you should not be passing any at all . Seems like simple math to me .

 

[HiBC]

Lawmakers vote for a whole lot of laws they have not even read.Sometimes.as in the case of the ACA,the plan was "you have to pass it to know what is in it"

When I vote,I can hold anyone accountable for anything,true or not...

But given the ACA example,its an institution problem.The lawmakers have a pretty slippery case to get out of being held responsible for anything."I had my staffers look at that..." or "It passed committee"

The lawmakers often rely on other people to advise Constitutionality.Frankly,watching Congessional debate,many seem ignorant,or,they disdain the Constitution.
Many votes of a 9 judge SCOTUS court come out 5-4. Ultimately the ruling on Constitutionality,at least temporarily,comes down to the swing vote of one Judge.

How do you punish a lawmaker who sides with the dissenting Judges?

535 lawmakers are directly responsible for just about everthing wrong with the USA.And we are responsible for electing them.

 

[Frank Ettin]

Frank it's not like I'm saying put them in jail , tar and feather or worse . They just no longer can hold a public office . Id bet the reason they are immune is because back in the day people thought shooting them in the street was reasonable . My idea hurts nobody and seems reasonable .....

No, your idea is not reasonable. And in any event, it's not going to happen.

I'm not going to debate it with you because you don't understand the history of the rule or the reasons for it.

You're welcome to dream your dream, but you will be disappointed.

 

[Frank Ettin]

...535 lawmakers are directly responsible for just about everthing wrong with the USA.And we are responsible for electing them.

Nah.

First, a lot of people will agree that there are many things wrong, but there'll be a lot of disagreement about what those things are, why they're wrong and what can be done to fix them.

Second, some folks won't even buy that premise.

Third, while we need to accept responsibility for what's wrong it's not just a matter of electing the wrong people to public office. A lot of what's wrong can be traced back to our own failings in how we live our lives -- our moments of intolerance, our moments of greed, our moments of laziness, our moments of irresponsibility.

But there alway have been and always will be a lot of things wrong. Humans always have been and always will be imperfect. Therefore human institutions always have been and always will be imperfect.

The top ten thing you think are wrong your neighbor or coworker might think are just right. And what your neighbor or coworker thinks is wrong you moight well think is the way things are supposed to be in Heaven.

 

[Metal god]

Well this was never intended to be a "debate" . I thought I was clear in asking how and or what we can do to hold are reps accountable . Frank has made it clear that you do nothing but vote and if you no less then others to bad , get smarter .

Thanks for nothing .

 

[Spats McGee]

. . . . I truly would like to know how we can impose "reasonable" consequences on lawmakers that continue to pass laws that are unconstitutional.

Vote. I'm truly sorry that you're not having much luck in CA, but legislative immunity protects them.

Frank has already laid out some of the parameters of legislative immunity, so I'll keep this brief. Legislative immunity goes back a long ways and it's an absolute immunity. "The purpose of this immunity is to insure that the legislative function may be performed independently without fear of outside interference. To preserve legislative independence, we have concluded that 'legislators engaged 'in the sphere of legitimate legislative activity,' should be protected not only from the consequences of litigation's results but also from the burden of defending themselves.' " Supreme Court of Virginia v. Consumers Union of U. S., Inc., 446 U.S. 719, 731–32, 100 S. Ct. 1967, 1974, 64 L. Ed. 2d 641 (1980) (internal citations omitted). In other words, it's not just about liability; it's also about making sure legislators are free to do their jobs. If they were stripped of legislative immunity, anybody and everybody with an axe to grind would come out of the woodwork and sue them.

That may not seem like a problem until you consider that lawsuits (including ones I consider frivolous) have been a big part of the antis action plan. Sue gunstores for selling a gun to some guy who sold a gun to some guy who shot someone . . . In the absence of legislative immunity, and if I were a real Evil Overlord type with an agenda, I'd use lawsuits to harass my legislative opponents, and I'd schedule depositions to be on days of critical votes.

 

[5whiskey]

Frank explained this well, even posting SCOTUS opinion that perfectly explains why we shouldn't penalize (at least by the legal system) legislators.

The only thing I will add is this. Say that legislative immunity did not exist, or it was somehow repealed in the future. Do you think ordinary Americans like you and I will be the ones who hold them accountable? Or, do you think that someone else in the political arena would be the ones to initiate the legal proceedings? Do you see a scenario where this could be abused for political purposes, in such that a sitting president or governor could initiate such legal consequences against legislators that doesn't agree with him/her? Would these legal consequences dilute the power of the legislative branch, consolidating even more power under the executive branch? Do we want the executive branch to have any more power than it already does? Do we want the legislative branch to have less power than what it does (remember, the HOR is the only reason why we don't have a national AWB right now, and everyone here knows that)?

Answer these questions honestly, and I think you will come to the proper conclusion. If not, well we just disagree. I can understand your frustration as you live in CA.

 

[ATN082268]

I know we have things on the books that don't allow us to civilly sue the individual law maker but there must be some sort of consequence they should pay for passing unconstitutional laws .

There probably should be but there isn't. I'd be for something along the lines for punishing legislators voting for a bill which is unanimously (9-0) struck down by the U.S. Supreme Court. I'd probably keep the punishments civil with incrementally increasing fines for each offense with a barred from government service punishment at the end for those who don't like to work with using the U.S. Constitution



Edit: The U.S. Supreme Court has 9 members, not 8

 

[carguychris]

Metal god, it may be worth mentioning that the Founding Fathers built a safeguard into our system to prevent unconstitutional laws from being passed, without involving the SCOTUS.

It's the presidential veto.

Past presidents routinely used it to veto legislation that they felt was unconstitutional. Modern presidents, however, have typically seemed uninterested in doing so.

That being understood, I think that this indicates that "We The People" need to elect presidential candidates who take this responsibility seriously, rather than making ill-considered changes to the legislative process. As other posters have pointed out, legislative immunity exists for VERY good reasons. We do NOT want a system in which powerful people have levers that can be used to cancel legislation they don't like. Such systems exist; they are often called oligarchies, monarchies, or dictatorships.

 

[Frank Ettin]

...Thanks for nothing....

There probably should be but there isn't.....

Did you read what the Supreme Court told us in Tenney (and I quote above)? Are you sure you really understand it?

...for those who don't like to work with using the U.S. Constitution

Like you, perhaps?

Legislative immunity was understood by the Founding Fathers and incorporated in the Constitution (Article I, Section 6):

...The Senators and Representatives ... shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place....

The historic understanding and application of the "Speech and Debate Clause" is discussed in this interesting Heritage.org article (emphasis added):

....Over the past fifty years, the Supreme Court has reaffirmed that the purpose of the clause is to protect the independence of Congress when exercising the legislative responsibilities assigned to it by the Constitution, Eastland v. United States Servicemen's Fund (1975); and that it will interpret the clause broadly to that effect. United States v. Johnson (1966). The Court has also consistently limited its application to activities that are "clearly a part of the legislative process." United States v. Brewster (1972).....
...
...In Eastland, the Supreme Court acknowledged that the clause may shield Members from civil or criminal liability "even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." The risk of such abuse, however, "was the conscious choice of the Framers' buttressed and justified by history." Errant Members nevertheless remain subject to disciplinary action by their respective Houses for "disorderly behavior"—and, of course, by their constituents on Election Day.