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Structural Safeguards to Limit Legislation

In the mid-90s I wrote a couple of law review articles, each which contained a short summary list of possible structural and related changes that could be made (say, to the Constitution) to try to limit state power and to limit the danger of legislation (really, the danger of having a legislature). Ultimately, most such changes are probably futile. Constitutions are paper limits used to prop up state power, and are interpreted and enforced by the very state that is supposed to be limited by it. But they are certainly better than useless measures such as term limits. Probably the single most important of these proposals would be the sunset proposal: every statute expires after some maximum number of years, unless positively reenacted. (For some additional suggestions regarding federalism, see my post Randy Barnett’s “Federalism Amendment”–A Counterproposal.)

The first excerpt is from my article “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995):

For all these reasons, I do not believe that legislation is a legitimate or practical means of creating law, or even of patching it. If a legislature can be convinced to recognize and respect the right law, so can a decentralized court system, especially one competing with other courts for customers. Courts do not face the same pernicious and systematic incentives that legislators do to make bad laws, and many of them. And courts, if they go bad, at least have a more limited effect on society; whereas when legislatures go bad, there is no end to the evil that they can perpetrate.[1]

If legislation can be considered valid at all (given a governmental system), it can only be occasional or spurious legislation that modifies the body of law which is primarily developed by a court-based, decentralized law-finding system. If we must have legislation, several constitutional safeguards should accompany its exercise, to attempt to restrict legislation to a purely secondary role in the formation of law. Certainly, a supermajority,[2] and maybe a referendum, should be required in order to enact any statutes whatever, except perhaps for statutes that repeal prior statutes or that limit governmental power.

In addition to a supermajority requirement, another reform that might be considered would be for all legislation to be limited to replacing the opinion of a given court decision with a new decision, which is to have purely prospective effect. Then, if a given case or line of cases were issued that had particularly egregious reasoning or results, a supermajority could form in the legislature that would rewrite the unfortunate opinion in purportedly better form, and enact this into law, as if the court had first issued the rewritten decision. The rewritten opinion would then assume the status of a judicial precedent, at least for that court.

The benefit of this limitation is that it would prevent legislatures from enacting huge legislative schemes out of whole cloth. There would simply be no way for the legislature to enact an Americans with Disabilities Act, since any statute would really be a rewritten judicial opinion, and to the extent the legislated substitute opinion strayed from the facts of the particular case, it would be merely dicta. If a judge in a battery case, for example, ruled that the spotted owl or the intelligent socialist was now an endangered species, such language would be completely irrelevant, since it is beyond a judge’s power to enact an Endangered Species Act in any judicial opinion. Such a mechanism for legislation would allow very bad case law developments to be overcome, but would also severely restrict the ability of legislatures to radically restructure the law, and thus would reduce the incidence of vote-buying and special interest lobbying, the amount of uncertainty, the proliferation of statutes, and the amount of social planning and other mischief that a legislature might otherwise be inclined to engage in.

Other provisions that could help to limit the dangerous effects of having a legislature include a line-item veto by the executive branch, and sunset provisions that automatically repeal legislation unless re-enacted after a given number of years. Another useful prophylactic measure would be an absolute right to jury trials in all cases, civil or criminal (so that government could not escape the jury requirement by calling truly criminal sanctions “civil”), in which the application of a statute is involved. This should be combined with a requirement that the jury be made aware of their right to judge the law’s validity as well as the defendant’s liability or guilt [jury nullification].[3]

The right of law-abiding citizens to own weapons of any sort, without any registration requirement, is also essential so that an armed public can stand as a last bulwark against a tyrannical government. Even with such safeguards, the power of a government armed with the power to legislate, the power to create and rewrite “law,” is awesome, and fearsome, to behold.

[1]Government power is always subject to abuse. The greater government’s role in society, the greater the chance for serious abuse. As Professor Epstein notes, “The smaller downside of a small government is perhaps its greatest virtue.” Richard A. Epstein, Simple Rules for a Complex World 316 (Cambridge, Mass.: Harvard University Press, 1995).

[2]See Leoni, supra note 2, at 178 n.5 (discussing a supermajority requirement as a way to tame legislators).

[3]The latter concept is advocated by many libertarians, and is often called the Fully-Informed Jury Amendment, or FIJA. See Don Doig, “New Hope for Freedom: Fully Informed Juries,” pamphlet published by the International Society for International Liberty. For discussion of the historical and natural right of jurors to judge the law’s validity, see also Comment, The Changing Role of the Jury in the Nineteenth Century, 74 Yale L. J. 170 (1964); and Lysander Spooner, An Essay on Trial by Jury, in The Lysander Spooner Reader 122 (San Francisco: Fox & Wilkes, 1992).

A related set of suggestions from my article “Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’sSilent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights [1995], 24 Hastings Const. L. Q. 757 (1997):

If Massey is correct that it is too late to limit the federal government to its proper powers, it is unlikely that the Court will try to, or even want to, accomplish the same thing by trumping those powers with Ninth Amendment rights. The truth is, and I doubt Massey would demur, that Massey’s theory stands no realistic chance of being adopted by the Supreme Court. Most likely, from the Court’s point of view, it is too radical, too academic, and at least has the potential of imposing some limits on federal power. So Massey’s theory is not really a theory of how the Constitution should be interpreted. What, then, is it? In truth, it is a proposal to amend the Constitution.

There are, however, better and simpler alternatives available—alternatives that strengthen, rather than weaken, federalism. One such alternative is that of Marshall DeRosa, as explained in his recent book The Ninth Amendment and the Politics of Creative Jurisprudence.[1]DeRosa proposes an ingenious constitutional amendment, which would read as follows:

 When a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment.[2]

As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned “more expeditiously and competently” than at present.[3] The states would not have to “resort[] to a cumbersome amendment process or the national congress that is significantly detached from states’ interests.”[4] Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions,[5] just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would “heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered.”[6]

As for other potentially useful amendments, unfortunately, Sobran’s proposed amendment, “The Constitution shall not be circumvented,” would be easily circumvented, as Sobran recognized.[7] However, Sobran proposes another “amendment that would actually restrain the federal government. It would read: ‘Any state may, by an act of its legislature, secede from the United States.’”[8] Either Sobran’s or DeRosa’s proposed amendment (or both) would straightforwardly enhance federalism and increase the likelihood that our individual rights would be respected.[9]

And while we’re at it, let us amend the Constitution to repeal the incorporation doctrine. We also might as well eliminate judicial supremacy (sometimes confusingly referred to as “judicial review”), the idea that the Supreme Court is the sole and final arbiter of the Constitution and constitutionality. Instead, the original scheme of separation of powers required concurrent review, sometimes referred to as Jefferson’s tripartite theory of constitutionalism.[10] Under concurrent review, each branch (executive, legislative, judicial) has an equal right to determine the constitutionality of government action. But enough of making my wish-list. Any one of these changes would be enough to warm the heart of a true constitutionalist.

[1]Id.

[2]Id at 192. This proposed amendment is preferable to an amendment recently suggested by Robert Bork, which would have little beneficial effect on federalism. See Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (New York: ReganBooks, 1996), 117 (proposing a constitutional amendment to make “any federal or state court decision subject to being overruled by a majority vote of each House of Congress.”).

[3]DeRosa, supra note 142, at 192.

[4]Id. at 193.

[5]See id.

[6]Id. at 194.

[7]Sobran, supra note 1, at 12.

[8]Id.

[9]The proposed amendments are also consistent with Jefferson’s “belief that the states were the prime interpeters of the federal compact.” Conkin, supra note 140, at 72.

[10]See id. at 69–73; David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville, Va.: Univ of Virginia Press, 1994), 131, 259, 263, 269–72; William J. Quirk and R. Randall Bridwell, Judicial Dictatorship (New Brunswick, N.J.: Transaction, 1995), xiv, 10–11, 13.

Update: see

KOL199 | Tom Woods Show: The State’s Corruption of Private Law, or We Don’t Need No Legislature

by Stephan Kinsella on December 17, 2015

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