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Punish legislators who pass unconstitutional laws

By Gregory Koch
On January 22, 2014

The United States Constitution provides a method for laws to be declared unconstitutional. The Supreme Court has the power to declare a law null and void if it violates the Constitution. However, in spite of the fact that the Constitution is not only law, but the supreme law of the land, there are no legal punishments for politicians who attempt to violate it. With federal and state governments adopting many laws of questionable constitutionality, there needs to be a way to punish those who violate the Constitution just as those who violate any lesser law would be punished.
The simplest solution to this problem would be to pass an amendment to the Constitution. This amendment might not only remove from office any federal or state lawmaker who votes for an unconstitutional law, but provide for fines and even prison sentences. It should also include the president (or governor for state laws) who signs the unconstitutional bill into law. Additionally, many federal programs of dubious constitutionality, such as the NSA surveillance, are started without direct authorization from Congress. Therefore, the amendment should be written broadly enough to include the federal officials who create such programs.
Currently, politicians are often willing to vote for legislation that might violate the Constitution, knowing that if the Supreme Court strikes it down, things will only return to the status quo. Many laws that may violate the constitutional rights of American citizens have been passed recently, including the National Defense Authorization Act, which authorized indefinite detentions of American citizens. Additionally, many states have passed laws of questionable constitutionality, including laws prohibiting same-sex marriage and, more recently, gun control laws which might violate the Second Amendment. The aforementioned NSA surveillance program, which was created without Congressional approval, also probably violates the Constitution.
However, the politicians who vote for these laws and the officials who create these federal programs are able to do so with impunity because there is currently no legal penalty for violating the Constitution. If there were penalties for doing so, public officials would have to seriously consider whether an action was unconstitutional before supporting it. If the lawmakers were found to have violated Americans' constitutional rights, the punishment would be severe, making them far less likely to do so in the first place.
Some legislation contains parts which might violate the Constitution as well as positive elements with significant merit. This could potentially lead to a situation where legislators fail to pass the positive portion due to constitutional concerns over the rest of the bill. However, these situations would be significantly less likely to happen in the first place with this proposed amendment.
One good example is the recent gun control legislation passed by the State of Connecticut. Only about half of the bill dealt with gun control, with the remainder dealing with mental health. Although many people believe the gun control portion is unconstitutional, the mental health portion will have many positive effects. During the course of debate on the bill, Republicans made a motion to divide the question. In layman's terms, this was a parliamentary motion to split the bill into two pieces of legislation to be voted on separately - one dealing with gun control and one dealing with mental health. The motion failed, forcing legislators to consider the entire piece of legislation together.
If Connecticut legislators were more concerned over whether the gun control portion was constitutional, they would be less likely to vote for it. However, they would still have recognized the importance of passing the mental health legislation. More legislators would have voted for the motion to split the bill in two. If it passed, they would then be able to vote for the mental health legislation (which is certainly constitutional) but against the gun control legislation (which might not be.) Therefore, the predicament might have resolved itself.
The Constitution is the supreme law of the land in the United States. Generally speaking, when someone violates a law, there are legal consequences such as fines or imprisonment. If a president violates a law, there are methods to impeach him and remove him from office. There are also procedures to remove members of Congress from office when they violate laws.
However, even though the Constitution is a higher law than any of the others, there are no punishments for politicians and other public officials who routinely violate it. This is unacceptable. There needs to be methods in place to punish those people, just as any other lawbreaker would be punished.  


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