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Should a Constitution prescribe penalties?

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...for obvious/egregious transgressions?

Let's say the government passes a law that results in people dying. These people's relatives can of course sue, and the Courts can find in their favor, if the law is unconstitutional.

Should the Constitution also contain a set of penalties (jail time, death penalty), which would result in the legislators behind certain unconstitutional laws (not all, mind you, just select cases where criminal intent can be demonstrated) being charged with a crime based on it?

P.S. This came up because of the threats the DOJ made against state legislators passing laws instructing state employees to participate in the trade of marijuana. As far as I can tell, the federal government does have the power to prosecute state legislators if they, in their official capacity, violate federal law - a power, I think, is proper (though they clearly shouldn't have the power to prosecute anyone, legislator or regular citizen, over pot). Why should legislators be immune to federal laws, after all?

Which begs the question, who should hold members of Congress accountable for their actions as legislators, if not the highest courts as prescribed by the Constitution?

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Or how about those who willfully and repeatedly violate supreme court orders not to hold government sponsored prayers, etc.? Even after being warned, many officials in the "bible belt" insist on defying precedent.

Congress, in theory, has the power to pass a law that fines government officials who violate the First Amendment in this way. That law would solve the problem for of all government officials, except members of Congress.

It wouldn't take care of members of Congress, because Congress, when passing a law which violates the First Amendment, could simultaneously abolish the law that would penalize them for it. The Courts would be able to strike down the offending law, but they wouldn't be able to also strike down the law abolishing the penalty (it isn't unconstitutional), so they would escape punishment for it.

So yes, my suggestion is that the Constitution should contain at least some guidelines on penalties: just enough to force Congress to stick with them.

Edited by Nicky
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This is a much more complex question than the thread title seemed to suggest. So let me see if I understand you correctly:

You propose that passing a law which is later struck down as unconstitutional should (sometimes?) result in criminal charges, and that the punishments for those charges should be in the Constitution. Then Steve suggested adding punishments for, um, "inappropriate" behavior?

There are several problems with this, starting with the fact that judicial review isn't in the constitution to begin with--it was established as a precedent by John Marshall. So now you're proposing to add a practice to the constitution that depends on something that is NOT in the constitution. Assuming you amend the constitution to formally include judicial review, wouldn't this be an example of ex post facto law, since it would depend on the legislators in question knowing, in advance, that their legislation was going to be struck down as unconstitutional? In addition, wouldn't this procedure weaken the already shaky system of checks and balances by giving legislators an incentive to "manage" the judiciary in any way possible? Worse, this incentivizes the practice of frequently and recklessly amending the constitution any time there's even a little doubt about whether a given law falls under its provenance. Can you imagine the state the constitution would be in today if there were a significant incentive for Congress to constantly amend it?

In any case, there already exist mechanisms for dealing with legislators and other government officials who do this: they can be impeached. Or voted out of office. Their legislation can be overturned. I'd be extremely leery of adding criminal charges and penalties to the process of law-making. The consequences would be far-reaching and extremely unpredictable, and would quite likely end up exacerbating the problem you propose to solve.

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You propose that passing a law which is later struck down as unconstitutional should (sometimes?) result in criminal charges

No, I'm not suggesting a punishment for "passing unconstitutional laws", I am suggesting a punishment for passing a law which urges the government to commit crimes against citizens, and results in specific crimes.

I am open to other suggestions on how to hold legislators responsible for those crimes, which they are clearly complicit to.

In any case, there already exist mechanisms for dealing with legislators and other government officials who do this: they can be impeached. Or voted out of office.

Impeachment is not an appropriate punishment for serious crimes, like murder.

There are several problems with this, starting with the fact that judicial review isn't in the constitution to begin with--it was established as a precedent by John Marshall. So now you're proposing to add a practice to the constitution that depends on something that is NOT in the constitution. Assuming you amend the constitution to formally include judicial review, wouldn't this be an example of ex post facto law, since it would depend on the legislators in question knowing, in advance, that their legislation was going to be struck down as unconstitutional? In addition, wouldn't this procedure weaken the already shaky system of checks and balances by giving legislators an incentive to "manage" the judiciary in any way possible? Worse, this incentivizes the practice of frequently and recklessly amending the constitution any time there's even a little doubt about whether a given law falls under its provenance. Can you imagine the state the constitution would be in today if there were a significant incentive for Congress to constantly amend it?

Perhaps I should've been clearer: I am asking if such penalties should be in the Constitution of a LFC country, I'm not suggesting that the current US Constitution should be amended.

I agree that any modifications to the current US Constitution, done by this generation of Americans, would be very bad.

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No, I'm not suggesting a punishment for "passing unconstitutional laws", I am suggesting a punishment for passing a law which urges the government to commit crimes against citizens, and results in specific crimes.

I am open to other suggestions on how to hold legislators responsible for those crimes, which they are clearly complicit to.

A crime means you've broken the law. Therefore, you cannot have crimes that result from acting in accordance with the law, *even if* that law is later overturned. This would be ex post facto law and is clearly unjust.

You're trying to get the snake to eat its own tail. Doesn't work.

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A crime means you've broken the law. Therefore, you cannot have crimes that result from acting in accordance with the law, *even if* that law is later overturned. This would be ex post facto law and is clearly unjust.

You're trying to get the snake to eat its own tail. Doesn't work.

I suggest the film Judgement at Nuremberg as food for thought as to the problems with this position as stated.

I like to think this doesn’t apply to anything going on in the contemporary U.S.

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A crime means you've broken the law. Therefore, you cannot have crimes that result from acting in accordance with the law, *even if* that law is later overturned. This would be ex post facto law and is clearly unjust.

I disagree with that statement as well (because you are equating justice with "following the law", and that is flawed: it leads to conclusions such as "a law ordering murder is just, and punishing that murder is unjust"), but I'm not talking about "following the law", I am talking about the initiators of laws.

Punishing the initiation of criminal laws, based on the supreme law of a country (the Constitution), clearly wouldn't be acting on ex post facto laws. The Constitution will have been the first thing written, it wouldn't be an ex post facto law in any circumstance.

Now, if we were to talk about how the people carrying out such laws should be handled, that is open to debate. But a sweeping statement such as "punishing them, in any circumstance, would be unjust" is clearly not true. When justice and a country's law diverge, there are circumstances in which mid and low level agents of the government should be expected to challenge their orders, and circumstances where that expectation would be unfair. They should be judged on an individual basis, with the moral principles of justice (rather than the laws of the criminal state) in mind.

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I am not entirely sure why an Objectivist government really needs standing (permanent, yearly) law makers on a federal level. In fact, I forgot the reason why there would be any on a municipal or county level. As our rights are fairly simple, the transgressions against them are not hard to understand. All we need is a congress to meet every once and awhile to clarify how certain special cases are handled. Only the initial congress would have the hard work, after that everything is just small reforms here and there. I imagine law makers would also only meet for specific purposes. For instance, if space travel becomes more wide spread, they would all meet in order to decide how property rights in the specific context of outerspace works. We don't need a congress constantly churning out stupid laws.

Tribunals for members of the executive brannch for questionable actions are of course needed, and can develope into criminal cases. For instance if a president declared martial law during the release of a bioweapon, and then violated people's rights in order to end the emergency, we would expect after the emergency was over that the president would have a full review of his actions during the state of emergency.

Luckily we have systems similar to this. When a cop shoots someone he has to explain his actions in a report. If someone sees something bad it could proceed into a criminal case.

As for local law makers, I don't see how a law maker can be any more culpable than the society that put the law maker in power, or at the very least the men who enforced the law. Given that it takes the cooperation of many interest groups to pass a law. Also, there would be the question of who was fit to judge these people. Would it be the very judicial branch that let all of this happen? The only motivation I see anyone having for these trials is scapegoating, as everyone for the law in that society made it possible.

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The parties to this conversation seem to assume that courts will always be right and the laws they strike down will always be bad ones. What effect would the proposed amendment have in the case where the law was a good one and the court was wrong to strike it down?

Another question: what about state-level popular initiatives that get struck down? Would you put the voters in jail?

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The parties to this conversation seem to assume that courts will always be right and the laws they strike down will always be bad ones. What effect would the proposed amendment have in the case where the law was a good one and the court was wrong to strike it down?

Well, you're missing the point: this has nothing to do with passing laws that get struck down, it's about passing laws that urge and result in the commission of specific crimes.

And I am not assuming that the courts will always be right. I am not disputing that courts can be wrong. If a Court is wrong, the same thing will happen that happens now if a Court is wrong: an innocent person or innocent people will go to jail, pending their appeal to a higher court.

Another question: what about state-level popular initiatives that get struck down? Would you put the voters in jail?

No. If it were up to me (if I was writing a Constitution), I would ban state-level popular initiatives altogether. So there wouldn't need to be any penalties holding voters responsible for their legislative actions, because they wouldn't have the power to legislate.

Handing everyone the power to legislate over their fellow men is a terrible idea, precisely because it is impossible to hold them accountable for misusing it.

Edited by Nicky
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What difference does it make if they're permanent of just meet and pass laws on occasion?

If a body comes together to make laws it will do so. We only need so many laws, so at a certain point the body will either not need to be there or will start churning out bad laws. I am saying we can prevent bad laws from being put in place by limiting the powers of the legistlative branch. This idea that there should be people making laws on a yearly cycle only helps the growth of corruption and regulation.

If bad laws are being passed there are systemic and philisophical problems in the government that make the prosecution of a legistlature pointless.

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If bad laws are being passed there are systemic and philisophical problems in the government that make the prosecution of a legistlature pointless.

The "point" is the same as prosecuting any criminal. How do systemic and philosophical problems in the government make that point null and void?

Besides, history is full of examples where the prosecution of a previous government set an example and affected political change. That prosecution is usually done as a result of the violent overthrow of the previous government (either by internal or external forces), but that is the result of the absence of a legal framework to help deal with the criminals.

I think that a properly organized government, with a Constitution aimed at dealing with criminal elements within itself (including in the legislature), would in many cases be able to hold those criminal elements responsible, and thus avoid the bloodshed of a revolution or a foreign intervention (or worse, of a transition into full blown dictatorship).

Edited by Nicky
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Let me put it this way: all government, when it comes down to it, has, at its foundation, an army of men with guns. And those men are, for the most part, regular, well intentioned citizens of the country.

A Constitution that is very clear on what the most egregious crimes those in power tend to commit, and how they ought to be punished, would give all these men with the guns a common understanding of right vs. wrong. Crossing that Constitution would mean, when it comes right down to it, crossing the men with the guns. That is the most powerful incentive to behave, that I can think of. And, on the off chance that a group of politicians decides not to behave, everyone in the government (from the Courts all the way down to the men with the guns), would know exactly what the right way to react is: punish the transgressors.

That shared knowledge, coupled with the fact that, unlike the politicians, the regular citizens with the guns tend to be well intentioned, would guarantee the right outcome in any power struggle between the corrupt and those who wish to stop them.

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I disagree with that statement as well (because you are equating justice with "following the law", and that is flawed: it leads to conclusions such as "a law ordering murder is just, and punishing that murder is unjust"), but I'm not talking about "following the law", I am talking about the initiators of laws.

Not in the least. Did I mention justice anywhere? No. I'm talking strictly about legality, which can be a means to accomplishing justice or a means to injustice. Justice is an ETHICAL term, not a POLITICAL one. Laws are a POLITICAL tool, not an ETHICAL one.

Legality, as part of a particular political ethos, arises from a particular approach to ethics, but they are NOT THE SAME and you cannot attempt to reverse this process by trying to get the ethics to somehow rise out of the politics.

In simpler language: there is NO legal system ultimately that will restrain people who want to use political power unjustly. This is a huge problem that the Founders faced and their solution was to put as large a number of blocks in the way of the government doing ANYTHING as possible. The wisdom of this remains even today, when due to the general ethical system adopted by most people in this country, our government is generally at its best when it DOES NOTHING. However, it's not a fundamental solution because you can *never* have a fundamental solution to the fundamental "problem" in this case: that people have volition.

You can dredge your imagination all you like, but nothing will ever enable you to "fix" this situation--and you should be very, very leery indeed of the unintended consequences of any such proposals, because many of them will be far worse than your original "problem".

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That shared knowledge, coupled with the fact that, unlike the politicians, the regular citizens with the guns tend to be well intentioned, would guarantee the right outcome in any power struggle between the corrupt and those who wish to stop them.

GUARANTEE?!?! Good grief. I fear men with guns with "good intentions", and if you don't, you are so clueless that you shouldn't even think about discussing politics.

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I suggest the film Judgement at Nuremberg as food for thought as to the problems with this position as stated.

I like to think this doesn’t apply to anything going on in the contemporary U.S.

I think that the entire concept of "war crimes" (aside from those committed by your OWN troops, which is handled in full by Military Law) is absurd, but this is not the same as saying that I think the Nuremberg trials (or the later trial of Saddam Hussein) were mistaken in their conclusions. I think they were mistaken in their *justification* and in their *procedure*.

Saddam Hussein was not a *criminal*, he was the *enemy*. He was not captured by police, but by the military. If the country or countries who capture the leaders of enemy forces want to convene a tribunal to review the facts and make sure they're about to execute (and execution should be the ONLY possible result, no prison time or house arrest or fines) the CORRECT people, that's all well and good and part of proper ethical behavior. However, this assembly should differ from a court in a number of important ways:

1. The accused is/are not entitled to a "defense". Or a jury. Heck, they don't even have to be present.

2. The purpose is not to establish guilt/innocence, but to establish firmly a given person's position, authority, and responsibilities in the enemy chain of command.

3. Condemnation is not based on a person's specific acts or orders, but on that established position.

And, of course, there may be cases where amnesty is offered in exchange for a surrender, or a given person may have gained amnesty by acting as a spy, etc. I think it'd be a good thing if, after a war, the official policy was that every commissioned officer and all civilians who have authority over the military be executed as a matter of course. Irregular troops who don't wear a uniform (assuming they can be caught at all) should also be executed.

Is this horrendous? Yes. But horrendous practices (going to war) should bring horrendous results. A free country should not be ATTACKING anyone, only defending itself (and its allies). So, if it's necessary to go to war, they should be serious about it, and serious about rendering their enemy incapable of prosecuting further wars.

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Not in the least. Did I mention justice anywhere? No.

Rhiiiiight. You never mentioned justice anywhere.

Except in the exact sentence I was responding to.

If you don't have anything intelligent to say, please stop posting. We're trying to have a conversation. This site has to have the worst mods in the history of the Internet. You guys manage to ruin pretty much every thread, with rudeness and arrogance, idiocy, or both.

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