I think you hit the nail on the head with the reference to sovereign immunity. That pernicious bit of common law (which appears nowhere in the constitution I believe) is the ultimate cause for a huge swath of injustice, since people usually have no practical way to seek justice against government bad actors, except in the most egregious (and newsworthy) of cases. Functionally, while violations of people's constitutional rights is ostensibly protected by law, but in reality, the real law (common law) overrides it. Its another reason I think statutory law is an enormous improvement over common law.
A constitutional amendment specifically removing sovereign immunity from government would go a long way I think. My preferred way to structure this is to mandate that any government official that acted in a way that violates the constitution or voted on a bill that violates the constution, should face significant punishment. Eg suspension / revocation of their offial powers for months + actual prison time. I think protecting the constitution is important enough that politicians should be afraid to get even close to violating it.
> My preferred way to structure this is to mandate that any government official that acted in a way that violates the constitution or voted on a bill that violates the constution, should face significant punishment. Eg suspension / revocation of their offial powers for months + actual prison time.
Who decides when this happens? Keep in mind judges are just as subject to corruption and the temptation to abuse power as politicians.
It wouldn't for the practical reason you're pointing out. Obviously there would be some method of filtering. A relatively obvious one would be to require the plaintiff to show a preponderence of evidence before suit can be brought - something that should be required for any court case I think.
So you're not thinking in terms of what would work in general. In fact I get the feeling your thought is not deeper than "the current court has a solid conservative majority, the current political branches don't". The problem is both of those a liable to change long before your proposal has any chance of being implemented.
One thing to consider is that the supreme court regularly holds things unconstitutional. If a politician votes in a law and then its immediately smacked down as unconstitutional, we have a case of attempted constitutional subversion. Yes, it might mean that the supreme court is pressured to be more lenient, but I would guess they already feel that kind of pressure to a significant degree.
Did you know some state courts have held state budgets unconstitutional on the grounds that they didn't spend enough on education, thus depriving people of their "right to education"?
Granted the supreme court hasn't yet done this, but in principle a supreme court with the right composition could find a "right to education" or housing, healthcare, etc. in the constitution's penumbra and start enforcing it on federal budgets.
The supreme court has indeed done many things of a similar nature. Exactly why we need to have a clear way to interpret the constitution and means of enforcing it. This is why I don't like common law and think a statutory legal system would solve quite a few problems.
Attempted subversion on the part of the politician who voted in that law, you mean?
What if it turns out it's the Supreme Court that is mistaken, and the politician is reading the USC correctly? What recourse does the politician now have?
Overall, I'm seeing a pattern in the exchange here, something like:
"We need to be able to yank officials who violate the Constitution."
"Who decides that?"
"Judges."
"What if the judges incorrectly interpret the USC in order to convict an official?"
"Then we punish the judges."
"Who decides *that*?"
"The Office of the Inspector General."
"What if they use that authority to oust a judge against whom they've had a grudge, or keep a corrupt judge that keeps bribing them?"
And so on. In general, there's this assumption that we just authorize watchers to watch watchers, and all I see this doing is moving the corruption from one office to another, over and over.
By my understanding, corruption is just a cogent term for an authority's incentives not coinciding with those of the governed. As long as we imbue some office with the authority to have The Final Word on the fate of someone in some other authoritative office, that corruption is going to decouple official incentives from officiated.
The US Government tries to address that problem by having three roughly co-equal branches with specific authorities over each other. This has probably gotten us over a lot of hurdles, but it's still not perfect, as jdgalt suggests. But an authority composed of multiple competing authorities does appear to be the least bad alternative we know of.
> What if it turns out it's the Supreme Court that is mistaken
What if it turns out someone indicted for murder is actually innocent? Should be the same process.
> "Who decides that?"
> "Judges."
I don't believe I said Judges. Maybe judges. But given the fact that a government holding itself accountable is basically a conflict of interest, even with separation of powers, here's an idea: How about judges from a different level of government? Just like state decisions can be overruled by federal courts, we could say that state officials are judged by federal judges, county/city officials are judged by state courts, and to wrap it all the way around, federal officials are tried by a consortium of county judges (Or you could do state judges on that last). You could also have jurty trials, or something a little broader.
The eleventh amendment was put in to prevent the federal courts being used to evade the sovereign immunity of states. I/m curious about the case or cases that provoked it.
This problem is real and ongoing, and affects several other important issues of law besides gun laws. In my view the ultimate cause of the problem is two related concepts limiting access to federal courts -- standing, and the "case or controversy" rule which bans courts from ruling on inchoate situations.
The solution I would propose -- which may require a constitutional amendment -- would be to give the Supreme Court the ability to determine that Congress, on certain topics, is a "vexatious llegislature" on a broad topic, such as in this case gun rights. Once SCOTUS makes this determination, the automatic presumption that newly enacted laws are valid would be abolished for all subsequent laws on those topics, so that the Attorney General would have to go back to SCOTUS and affirmatively prove the law is constitutional before it is allowed to take effect.
This should be done in addition to abolishing sovereign immunity, not instead of it.
And FWIW, I don't buy that Trump did anything wrong. Classifiication of documents is part of the president's authority as commander-in-chief, so he can declassify anything at any time, with no requirement that he follow any administrative procedure. He can be assumed to have declassified whatever he took with him. (As opposed to both Biden, when he was VP, and Hillary Clinton, who both did take classified documents home without any such right, and handled them much more carelessly than Trump ever did.) None of the Trump indictments will stick; they are all for the purpose of keeping him from campaigning for the next year. And so are the gag orders which will soon follow.
Of course Biden will never be prosecuted unless it's in a future Trump administration, nor will Hunter. The Hunter indictment is a farce intended to allow him to assert the Fifth when questioned by the House committee about the Big Guy's multiple bribery scandals. I only hope that both Bidens can be extradicted to Ukraine after Zelensky is inevitably removed from office.
"Classification of documents is part of the president's authority as commander-in-chief, so he can declassify anything at any time, with no requirement that he follow any administrative procedure. He can be assumed to have declassified whatever he took with him. (As opposed to both Biden, when he was VP, and Hillary Clinton, who both did take classified documents home without any such right, and handled them much more carelessly than Trump ever did.)"
Well, careful: Clinton *did* have authority to classify, as Secretary of State:
My understanding is that OCAs are understood to have such authority within only their respective purviews. SecState can't declassify a document from the DoE or DoD, nor can DCI declassify State documents, etc. So if we wanted to build a case against Clinton, we would have wanted to check the provenance of the classified documents on her email server. One expects they'll be largely State documents, and if so, she could declassify them at will (AFAIK). It's conceivable that there were documents there from other departments. If so, one expects those departments to be *very* angry at Clinton's security; departments tend to treat their own classified material as their babies.
And in the case of POTUS, purview isn't a factor, because POTUS is the chief OCA (the very concept was established as an Executive Order).
That said, I very much do not like when even OCAs mishandle their own classified material. That material is supposed to protect the entire nation, and we the people entrust that to their care. It's like us living in a giant house and hiring expert roofers and later finding out they've been leaving a few leaks in the rafters. The fact that we have no undeniable rat problem does not mean we're forced to keep those roofers on payroll.
Not at all. But he has a somewhat favorable Supreme Court, all the more since the Biden administration didn't want to send police to defend the justices during the Dobbs riots.
I think Trump is trivially guilty of illegally keeping classified documents. I knew a guy in the military who was court-martialed for keeping a stolen page from a manual marked 'Top Secret' and 'This Page Intentionally Blank', both sides. They had him cold for smoking pot while on important duty and were throwing the book at him, so the case overall wasn't unjust. If he'd retired and kept that one page, it would have been trivial and unjust to charge him.
That sounds like a case of "can't bust him for pot, so bust him for security violations". It's not the first time that's been done. Al Capone is a famous example. A local example happened at my university - they noticed a student's exam essay was word-for-word out of a section of textbook, but the plagiarism rules at the time required proving intent, etc., so instead they declared "failure to cite source" and graded it a zero. (They figured the student knew that if he contested it, they'd then just go through the trouble to prove plagiarism and bring a much more severe punishment.)
On the flip side, this somewhat mitigates my outrage over people unjustly imprisoned for minor charges such as possession of marijuana - I suspect many of them were much more serious criminals, knew it, and knew the system could prove it if it really had to, but at great expense.
The supreme court has too little power, not too much, as shown by the fact that presidents from Andrew Jackson onward have ignored their rulings whenever inconvienient, and gotten away with it scot-free. I would have written Article II to give the supreme court the right to remove a president for defying its orders.
My lodestar is that a government must produce real justice. Beyond that I'll go for any form that I think will serve that end.
Right now I think a limited-franchise republic like renaissance Venice might be an improvement. (Briefly: they were a republic but the only people who had the vote were the direct descendants of its founding generation.)
Because the Supreme Court is doing a better job than Congress or the President, and has done for the last 30+ years. Of course there is still a lot of New Deal precedent that needs undoing.
A good illustration that that's not enough is New York's Sullivan Act, which managed to evade Supreme Court review for more than a century, and they're still trying to renew it. Even an honest Court simply can't rule as fast as bad guys can legislate.
That’s why we have periodic elections. If people are unhappy with the government they can throw the bums out. We even had one in the middle of the Civil War.
If that were sufficient we would not be having this debate. None of the states that had contested results in 2020 allowed Trump his rightful, timely day in court. That makes the republic a joke.
Here's attorney Robert Barnes, who put together the Georgia case that never got a hearing on the merits. Includes a link to .pdf of the petition filed with the court.
David has not been continuously apologizing for criminals. Trump is not a criminal (yet); he has been *indicted*, and even if convicted, David is discussing the prosecution process, not the man.
I think your difficulty with taking things you read seriously might have something to do with your misinterpreting what you read.
I favored criminal justice reform too. Then I saw how left-biased prosecutors used it to keep BLM/Antifa terrorists out of prison. Now we're seeing the other half of that, in which those same prosecutors go after innocent righties (not just Trump but Zimmerman and Rittenhouse) while ignoring real, serious crimes by their own side.
Now the only criminal justice reform I favor is to abolish all forms of immunity, and give victims the right to prosecute their own cases privately, as you still can in the UK.
If that doesn't happen we should call ourselves the Banana Republic and have done.
I think you hit the nail on the head with the reference to sovereign immunity. That pernicious bit of common law (which appears nowhere in the constitution I believe) is the ultimate cause for a huge swath of injustice, since people usually have no practical way to seek justice against government bad actors, except in the most egregious (and newsworthy) of cases. Functionally, while violations of people's constitutional rights is ostensibly protected by law, but in reality, the real law (common law) overrides it. Its another reason I think statutory law is an enormous improvement over common law.
A constitutional amendment specifically removing sovereign immunity from government would go a long way I think. My preferred way to structure this is to mandate that any government official that acted in a way that violates the constitution or voted on a bill that violates the constution, should face significant punishment. Eg suspension / revocation of their offial powers for months + actual prison time. I think protecting the constitution is important enough that politicians should be afraid to get even close to violating it.
> My preferred way to structure this is to mandate that any government official that acted in a way that violates the constitution or voted on a bill that violates the constution, should face significant punishment. Eg suspension / revocation of their offial powers for months + actual prison time.
Who decides when this happens? Keep in mind judges are just as subject to corruption and the temptation to abuse power as politicians.
I would like any person to be able to bring a suit to any government official. We shouldn't have to wait for a politician or bureacrat to bring suit.
Wouldn't this result in all major government officials getting spammed with suits?
It wouldn't for the practical reason you're pointing out. Obviously there would be some method of filtering. A relatively obvious one would be to require the plaintiff to show a preponderence of evidence before suit can be brought - something that should be required for any court case I think.
There's no perfect answer because legislators and election boards are as corruptible as judges. But allowing judges to be recalled might help.
So you're not thinking in terms of what would work in general. In fact I get the feeling your thought is not deeper than "the current court has a solid conservative majority, the current political branches don't". The problem is both of those a liable to change long before your proposal has any chance of being implemented.
One thing to consider is that the supreme court regularly holds things unconstitutional. If a politician votes in a law and then its immediately smacked down as unconstitutional, we have a case of attempted constitutional subversion. Yes, it might mean that the supreme court is pressured to be more lenient, but I would guess they already feel that kind of pressure to a significant degree.
Did you know some state courts have held state budgets unconstitutional on the grounds that they didn't spend enough on education, thus depriving people of their "right to education"?
Granted the supreme court hasn't yet done this, but in principle a supreme court with the right composition could find a "right to education" or housing, healthcare, etc. in the constitution's penumbra and start enforcing it on federal budgets.
The supreme court has indeed done many things of a similar nature. Exactly why we need to have a clear way to interpret the constitution and means of enforcing it. This is why I don't like common law and think a statutory legal system would solve quite a few problems.
Attempted subversion on the part of the politician who voted in that law, you mean?
What if it turns out it's the Supreme Court that is mistaken, and the politician is reading the USC correctly? What recourse does the politician now have?
Overall, I'm seeing a pattern in the exchange here, something like:
"We need to be able to yank officials who violate the Constitution."
"Who decides that?"
"Judges."
"What if the judges incorrectly interpret the USC in order to convict an official?"
"Then we punish the judges."
"Who decides *that*?"
"The Office of the Inspector General."
"What if they use that authority to oust a judge against whom they've had a grudge, or keep a corrupt judge that keeps bribing them?"
And so on. In general, there's this assumption that we just authorize watchers to watch watchers, and all I see this doing is moving the corruption from one office to another, over and over.
By my understanding, corruption is just a cogent term for an authority's incentives not coinciding with those of the governed. As long as we imbue some office with the authority to have The Final Word on the fate of someone in some other authoritative office, that corruption is going to decouple official incentives from officiated.
The US Government tries to address that problem by having three roughly co-equal branches with specific authorities over each other. This has probably gotten us over a lot of hurdles, but it's still not perfect, as jdgalt suggests. But an authority composed of multiple competing authorities does appear to be the least bad alternative we know of.
> What if it turns out it's the Supreme Court that is mistaken
What if it turns out someone indicted for murder is actually innocent? Should be the same process.
> "Who decides that?"
> "Judges."
I don't believe I said Judges. Maybe judges. But given the fact that a government holding itself accountable is basically a conflict of interest, even with separation of powers, here's an idea: How about judges from a different level of government? Just like state decisions can be overruled by federal courts, we could say that state officials are judged by federal judges, county/city officials are judged by state courts, and to wrap it all the way around, federal officials are tried by a consortium of county judges (Or you could do state judges on that last). You could also have jurty trials, or something a little broader.
The eleventh amendment was put in to prevent the federal courts being used to evade the sovereign immunity of states. I/m curious about the case or cases that provoked it.
I recommend the Glenn Harlan Reynolds article “Ham Sandwich Nation”.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203713
Many thanks. I'm now working on a post inspired by that article.
This problem is real and ongoing, and affects several other important issues of law besides gun laws. In my view the ultimate cause of the problem is two related concepts limiting access to federal courts -- standing, and the "case or controversy" rule which bans courts from ruling on inchoate situations.
The solution I would propose -- which may require a constitutional amendment -- would be to give the Supreme Court the ability to determine that Congress, on certain topics, is a "vexatious llegislature" on a broad topic, such as in this case gun rights. Once SCOTUS makes this determination, the automatic presumption that newly enacted laws are valid would be abolished for all subsequent laws on those topics, so that the Attorney General would have to go back to SCOTUS and affirmatively prove the law is constitutional before it is allowed to take effect.
This should be done in addition to abolishing sovereign immunity, not instead of it.
And FWIW, I don't buy that Trump did anything wrong. Classifiication of documents is part of the president's authority as commander-in-chief, so he can declassify anything at any time, with no requirement that he follow any administrative procedure. He can be assumed to have declassified whatever he took with him. (As opposed to both Biden, when he was VP, and Hillary Clinton, who both did take classified documents home without any such right, and handled them much more carelessly than Trump ever did.) None of the Trump indictments will stick; they are all for the purpose of keeping him from campaigning for the next year. And so are the gag orders which will soon follow.
Of course Biden will never be prosecuted unless it's in a future Trump administration, nor will Hunter. The Hunter indictment is a farce intended to allow him to assert the Fifth when questioned by the House committee about the Big Guy's multiple bribery scandals. I only hope that both Bidens can be extradicted to Ukraine after Zelensky is inevitably removed from office.
"Classification of documents is part of the president's authority as commander-in-chief, so he can declassify anything at any time, with no requirement that he follow any administrative procedure. He can be assumed to have declassified whatever he took with him. (As opposed to both Biden, when he was VP, and Hillary Clinton, who both did take classified documents home without any such right, and handled them much more carelessly than Trump ever did.)"
Well, careful: Clinton *did* have authority to classify, as Secretary of State:
https://www.federalregister.gov/documents/2010/01/05/E9-31425/original-classification-authority
My understanding is that OCAs are understood to have such authority within only their respective purviews. SecState can't declassify a document from the DoE or DoD, nor can DCI declassify State documents, etc. So if we wanted to build a case against Clinton, we would have wanted to check the provenance of the classified documents on her email server. One expects they'll be largely State documents, and if so, she could declassify them at will (AFAIK). It's conceivable that there were documents there from other departments. If so, one expects those departments to be *very* angry at Clinton's security; departments tend to treat their own classified material as their babies.
And in the case of POTUS, purview isn't a factor, because POTUS is the chief OCA (the very concept was established as an Executive Order).
That said, I very much do not like when even OCAs mishandle their own classified material. That material is supposed to protect the entire nation, and we the people entrust that to their care. It's like us living in a giant house and hiring expert roofers and later finding out they've been leaving a few leaks in the rafters. The fact that we have no undeniable rat problem does not mean we're forced to keep those roofers on payroll.
> None of the Trump indictments will stick
You appear to be suffering from a blind faith in the incorruptibility of judges.
Not at all. But he has a somewhat favorable Supreme Court, all the more since the Biden administration didn't want to send police to defend the justices during the Dobbs riots.
I think Trump is trivially guilty of illegally keeping classified documents. I knew a guy in the military who was court-martialed for keeping a stolen page from a manual marked 'Top Secret' and 'This Page Intentionally Blank', both sides. They had him cold for smoking pot while on important duty and were throwing the book at him, so the case overall wasn't unjust. If he'd retired and kept that one page, it would have been trivial and unjust to charge him.
That sounds like a case of "can't bust him for pot, so bust him for security violations". It's not the first time that's been done. Al Capone is a famous example. A local example happened at my university - they noticed a student's exam essay was word-for-word out of a section of textbook, but the plagiarism rules at the time required proving intent, etc., so instead they declared "failure to cite source" and graded it a zero. (They figured the student knew that if he contested it, they'd then just go through the trouble to prove plagiarism and bring a much more severe punishment.)
On the flip side, this somewhat mitigates my outrage over people unjustly imprisoned for minor charges such as possession of marijuana - I suspect many of them were much more serious criminals, knew it, and knew the system could prove it if it really had to, but at great expense.
Also, a case can be made that it's lack of direct enforcement ability is an important check on the power of the supreme court.
The supreme court has too little power, not too much, as shown by the fact that presidents from Andrew Jackson onward have ignored their rulings whenever inconvienient, and gotten away with it scot-free. I would have written Article II to give the supreme court the right to remove a president for defying its orders.
The supreme court has among other things redefined the millennia old institution of marriage by judicial fiat.
Presidents are already answerable to voters, supreme court justices are accountable to no one.
> I would have written Article II to give the supreme court the right to remove a president for defying its orders.
Look if you prefer an oligarchy to a republic, just say so and we can debate the merits.
My lodestar is that a government must produce real justice. Beyond that I'll go for any form that I think will serve that end.
Right now I think a limited-franchise republic like renaissance Venice might be an improvement. (Briefly: they were a republic but the only people who had the vote were the direct descendants of its founding generation.)
So why do you think an oligarchy would serve real justice better than a republic?
Because the Supreme Court is doing a better job than Congress or the President, and has done for the last 30+ years. Of course there is still a lot of New Deal precedent that needs undoing.
We give judges enormous power. We deal with that by limiting them to the cases brought to them.
A good illustration that that's not enough is New York's Sullivan Act, which managed to evade Supreme Court review for more than a century, and they're still trying to renew it. Even an honest Court simply can't rule as fast as bad guys can legislate.
That’s why we have periodic elections. If people are unhappy with the government they can throw the bums out. We even had one in the middle of the Civil War.
If that were sufficient we would not be having this debate. None of the states that had contested results in 2020 allowed Trump his rightful, timely day in court. That makes the republic a joke.
None of the fools working for DJT were competent enough file a coherent brief. It didn’t help that there was no case to be made.
Here's attorney Robert Barnes, who put together the Georgia case that never got a hearing on the merits. Includes a link to .pdf of the petition filed with the court.
https://vivabarneslaw.locals.com/post/4439850/barnes-law-school-highlighted-georgia-election-contest
> It didn’t help that there was no case to be made.
Have you tried not lying about things everyone paying attention election night saw happening live?
Your characterization of the Fifth Circuit decision is a right-wing fever dream.
https://jabberwocking.com/appeals-court-upholds-tiny-part-of-mass-censorship-ruling/
And your continuous apologies for criminals makes it very hard to take you seriously on anything else.
https://www.cnn.com/2022/12/03/politics/trump-constitution-truth-social/index.html
One might say that characterizing anything as a "right-wing fever dream" is a characteristic left-wing fever dream.
Seriously, you’re linking to a CNN piece?
David has not been continuously apologizing for criminals. Trump is not a criminal (yet); he has been *indicted*, and even if convicted, David is discussing the prosecution process, not the man.
I think your difficulty with taking things you read seriously might have something to do with your misinterpreting what you read.
I favored criminal justice reform too. Then I saw how left-biased prosecutors used it to keep BLM/Antifa terrorists out of prison. Now we're seeing the other half of that, in which those same prosecutors go after innocent righties (not just Trump but Zimmerman and Rittenhouse) while ignoring real, serious crimes by their own side.
Now the only criminal justice reform I favor is to abolish all forms of immunity, and give victims the right to prosecute their own cases privately, as you still can in the UK.
If that doesn't happen we should call ourselves the Banana Republic and have done.