> It is an elegant solution and might be workable in a society whose government was much less active than ours.
As you state it, it seems like your proposal would *force* the government to be much less active--because laws that were stuck in the Supreme Court's backlog would not be in effect and would not be enforceable. So there would be a strong incentive to not pass so many laws, so that the ones the legislators really wanted to get passed could actually get reviewed.
This isn't the first location where this has shown to be a problem, but if you do this, then the benefit of putting your team's judges in charge of the legal system greatly increases. Lose an election? That's ok, you can have your judges rule new laws by the opposing team as obviously unconstitutional and fine the opposition.
I'm not sure yet what the effect of Trump's appointments to the supreme court will be over time, but I think that regardless of the solutions above, you have a kind of value lock in due to whoever happens to be in power when the judges are appointed. Maybe you'd have to have the legislature appoint judges, or have referendums on their decisions sometimes
FWIW, my system is probably closer to the Athenian system. There are no courts; I don't trust third party government prosecutors or third party government judges. The parties to a dispute have to resolve the dispute themselves. They can of course hire all the help they want, including lawyers to talk for them if they are no good at public speaking. I like to say face to face, but video conferencing is fine, they can even do everything though their hired lawyers, but the parties alone are responsible for the decision, not judges, not the parties' lawyers.
They can hire juries; but jury opinions are still just opinions, not decisions. It is still up to the parties to consider how the jury's opinion relates to other aspects of the case.
And in the end, it comes down to what the public thinks of their negotiated verdict. The loser owes everything, all expenses due to every aspect of the dispute, although being negotiated, they can dicker and bargain all they want. It is their verdict. Even if they both agree that both parties owe something, there is still going to be some net verdict.
If the loser does not pay the verdict debt, he is an outlaw, and cannot complain for anything less than his unpaid verdict debt. The practical consequence is that any member of the public can steal from outlaws and they cannot legally complain as long as the theft is less than their outlaw debt. Another consequence is that the verdict must be public and complete, and if the public thinks the loser got a raw deal, they can appeal it, or pay the debt, either outright, as a loan, or any other mutual agreement.
It's not that I trust the public to have more wisdom than government judges. It's that I think crowd wisdom is more likely to be correct than third party judges, especially when lawyers get involved and quibble the justice right out of a dispute. As Eugene Volokh likes to say, lawyers' true super power is the ability to turn every question into a question of procedure. I do not believe the public will put up with that nearly as much as judges do.
Why would criminals who know they are guilty negotiate with their victims? Ask why criminals surrender to police now, or pull over for the flashing lights behind them, even when they know it could mean a long spell in prison. Because they know they can't hide. A party who refuses to participate is acting like a spoiled child who won't do his chores or put away his toys; the adults have to take charge and the child gets no further say in the matter. I call it malingering. The other party can't just write any old nonsense or make stuff up. He still has to lay out the evidence and prove to the public, in that one-sided verdict, that the malingerer really is guilty beyond a reasonable doubt, and really did refuse to participate.
Whether it would work, I don't know, and I don't really care all that much, because its odds of happening are infinitesimal. I would like it; I believe most people would like it if it were in existence for a few years; I believe it's plausible enough for fiction; and its primary goal is to give me a baseline with which to compare legacy judicial systems, which seem to universally favor ritual over justice.
I got a lot of ideas from your book, Legal Systems Very Different From Our Own, both directly and indirectly. It really opened my eyes to thinking outside the legacy boxes. (But I alone am solely to blame for my system :-)
That is an important point. Part of courts working well has to be that they are used infrequently. The more they become a routine way of doing things, the more their problems and limitations will affect our overall wellbeing.
You mention value lock in, but here is another example.
If a law might be invalid due to a Constitutional argument, then it's important to resolve the question one way or another. The courts can help here, and they are helpful even if they are inaccurate in how they resolve the decision. Deciding incorrectly is bad, but it is nowhere near as bad as having the general public just not agreeing on whether something is a binding law or not.
This changes if every law is reviewed. Now those inaccuracies are being systematically applied and enforced, including in cases where the general public already agreed, but agreed in the opposite direction from the court decision.
Many systems only work well if the participants have at least a little bit of interest in trying to make it work. This seems like one of them. From a cultural point of view, it is therefore important that we recognize the difference between disagreeing with someone versus them doing something that against our norms and laws. For example, employer-sponsored health care and 401ks sound like bad policy to me, but I don't think anyone is acting in bad faith or should be treated as such.
To contribute one idea to your question, it seems like it helps whenever a law has some lead time before it goes into effect. If there are 12+ months before a law does anything, then there is time to challenge it. This is the basis of a lot of decisions that affect numerous people. If you change your name or start a major building project or even try to cut down the wrong tree, you can sometimes be required to post notice and wait a certain amount of time so that challengers have a chance to speak up before it's too late.
Now, this kind of thing only works if people are someowhat working together. If it's going to be all war, all the time, then you can do things like just break that rule, too, and pass laws that take effect immediately even though it's against the rules. For that matter, if everyone just does what they want, then judges can just allow illegal things and say they're legal.
Somewhere in all of this, you just have to assume that people actually want to have peace. If everyone just walks on everyone, across all levels of government, then it's effectively no government at all. People then have to fight rather than talk, until and unless some new leviathan emerges.
One possibility might be having a prediction market for whether the law will be considered constitutional. It cannot come into it effect until an actual ruling if the prediction market expects that it is less than thirty percent likely to be considered constitutional
But people betting on that market may be trying to move it to block the law or prevent it being blocked, so it requires enough money on the market by people who are simply trying to win their bets to neutralize those efforts.
If “we” (Congress plus the legislature) really wanted to solve the problem with a Twain proposal variant, it wouldn’t be particularly difficult.
I quite like the prediction market as a starting point, but it wouldn’t be essential. Sufficient would be a new Appeals Court dedicated to just this function.
(FWIW I would treat legality of executive orders and constitutionality of laws in a similar fashion).
Something like 3 out of 7 justices willing to hear the case would be sufficient (or 4 of 9 SCOTUS justices could force the Appeals Court’s hand). Any member of Congress would by definition have standing in this court.
Using your “3 states” model (constitutional, maybe unconstitutional, likely constitutional), to hear the case 3 have to believe “likely”. Then to rule, the law (or exec order) stands unless they rule “clearly unconstitutional” (clearly illegal). Even then, SCOTUS can decide whether the ruling should be stayed before it hears the case (but it always hears the case if the Appeals court ruling is unconstitutional; it hears it at its 4 of 9 option if it wasn’t).
For cases never ruled on by SCOTUS, they can of course also follow the regular path as well.
It seems to me something like this would not in fact overburden SCOTUS. At the very most, there’d be a temporary 1 or at most two year delay in the amount of other cases it takes.
IMO the reason something like this is unlikely to happen any time soon is not any unworkability or SCOTUS time burden issue. Rather Congress’ and especially the president’s incentives are such that it is unlikely we get such legislation passed and signed.
Per Gemini: (Edit: See reply comment below for correction)
Citation
Work: The Secret History of Eddypus, the World-Conqueror
Collection: You can find this in Mark Twain's Fables of Man, edited by John S. Tuckey (University of California Press, 1972).
Page Reference: In the 1972 UC Press edition, this discussion begins around page 378.
You can read the full text of this project via the Mark Twain Papers & Project at the University of California, Berkeley, which maintains the archives of his unfinished manuscripts.
Which when I checked it on the website for the papers, doesn't contain that scene. So I challenged Gemini and switched to the thinking version, after which it admitted hallucinating the quote's location, but states it's not contained in his complete works.
One way to frame the problem is that unconstitutional laws persist because the institution that creates the harm is not the one that bears the cost. Even when courts eventually strike a law down, the legislature has already captured years of de facto policy through delay. Voters are too rationally ignorant to connect later compensation costs to earlier legislative choices, so the deterrent effect is close to zero.
A possible remedy is a constitutional “escrow” or bond requirement for rights-implicating laws. When a legislature passes a statute that predictably burdens an enumerated right, a small percentage of the expected enforcement cost is placed into escrow. If the law is upheld, the funds return to the state; if it is struck down, the escrow automatically compensates those harmed. This doesn’t require proving bad faith, doesn’t punish honest disagreement, and forces legislators to internalize the expected constitutional risk in advance. It functions like a market-based pricing mechanism for constitutional uncertainty—something closer to the Athenian and Scottish ideas you mention, but without needing courts to make subjective judgments about intent.
I don't see the point of your escrow requirement. If you make the state liable for costs and trust the legislators to act in the interest of the state, the problem is solved. If you don't trust the legislators to act in the interest of the state, why should they care if the escrow forfeits?
Also, why would you expect a small percentage of the expected enforcement cost to cover the cost of the damage done by a law? Tariffs are cheap to enforce, but the refund is going to be more than a hundred billion.
The point of the escrow isn’t to fund the full refund. It’s to change the timing and visibility of the constitutional risk. Legislators routinely pass laws whose long-term costs are externalized onto future budgets and future officeholders. An escrow requirement forces the expected constitutional risk to appear in the current budget, where legislators actually face tradeoffs and political pressure.
Even if legislators don’t “care about the state” in the abstract, they care about present-year appropriations, interest-group reactions, and media scrutiny of immediate expenditures. Escrow moves the cost from the future (where it’s politically invisible) to the present (where it matters).
And the escrow isn’t meant to cover the full damage. It’s a pricing mechanism—like a performance bond—that forces legislators to internalize the risk they’re imposing. The state remains liable for the full refund if the law is struck down; the escrow simply prevents legislators from externalizing the entire risk onto the public.
France uses a version of the solution you attribute to Mark Twain: there's a Constitutional Council which overlaps in function with our Supreme Court. They can be invoked to review a law immediately when it's enacted, and in fact that's the main time they can be asked to do so. The best sources are in French but here's Wikipedia:
I'd say there is no practical difference between an unconstitutional law a lawmaker intended to be constitutional, and one they merely disagreed on. I say lawmakers should be afraid to pass laws close enough to the line that it might be ruled unconstitutional. They should stay far away from that.
It seems to me that all 3 of these methods should be used to some degree
An interesting problem to this is the Supreme Court has ruled since Washington that the court can’t give advisory opinions. They can only rule on actual “cases or controversies” (standing). It is seen as a separation of power issue, as well as a mechanism of maintaining legitimacy by never having to rule on politically hot issues. That is the role of the court is to adjudicate laws, NOT create them
My proposed solution would be for the court that overturns a law to be allowed to decree that subsequent laws on the same topic may be appealed by a "fast-track" mechanism to that same court, meaning that all lower courts are bypassed for that appeal. You could also give that court the power to punish legislators who disobeyed its ruling with contempt of court and put their seats in the legislature up for immediate new election.
Or you could go whole hog and implement H. Beam Piper's "Lone Star Planet."
One possible solution would be to set a penalty for voting for a law later found unconstitutional such that the legislators lose their seat and may never hold public office again. (Possibly also forfeiting whatever retirement or other benefits if they are subsequently out of office when the law is overturned.) The principle is that whether a law would be outside of the government’s constitutional powers is pretty well understood and could be tested ahead of time, so anyone pushing that line knows what they are doing. Since people can not be fully made whole from government overreach the duty is to avoid such.
I believe it is similar to strict negligence rules, although I am tired and under the weather so I might be misremembering, where the actors have a duty to not screw up; “whoops, silly me! I didn’t mean for that to happen!” is not a defense.
That's close to my proposal, but legislators are on the hook only if they voted for the bill while the challenge was pending. It's not reasonable to hold them accountable for challenges which showed up a year or ten years later.
It also encourages challenges early, while still a bill, rather than waiting years.
I don't like kicking them out of office and barring future candidacy. That puts a very few radicals in charge of voter choices, and the challengers suffer no consequences anywhere near as drastic for losing their challenge.
Well, I do like your proposal, what I can glean from the comments here at least. I think that the issue of a short challenge period being the only danger zone is that swings in public opinion and thus legislative craziness lead to a lack of repercussions later.
I don't quite see what you mean about a very few radicals being in charge of voter choices. I see barring from public office being the penultimate penalty for what is arguably the worst thing a legislator can do. Exceedingly few cases go before the Supreme Court, fewer still that overturn laws as unconstitutional. If it gets that far and goes that badly, you done fucked up and need to pay a heavy price, such that every legislator's first question upon thinking about a new law is "Are we even allowed to do this, or will it destroy my career forever?" That seems to me to be the right hurdle to clear before deciding to coerce other people and do all sorts of damage.
Let me expand upon that. You point out how long it takes to get through the court system, and that’s part of what is wrong with the Marie Le Pen banning — the trial court ruled against her, so she can’t run, but the appeals courts haven’t even begun considering her case. What if they overturn her conviction in three or four years? Too late! One corrupt local court robbed voters of a popular candidate.
Look at Germany, where AfD got tagged as neo-Nazis a year or two ago, and just recently got untagged. There was a real chance one bureaucrat or one judge could have knocked the entire party off the ballot.
That’s what would be possible if any trial court rules for a defect challenge, even if they get overruled several years later. It’s simply too drastic a penalty and would take elections away from voters.
I am fairly sure I said “the Supreme Court rules it unconstitutional” at least once, and never said anything about some local twit banning politicians. I believe that is where you are erroneously conflating things.
So again, how do you target for big changes? You still have to get the case to the SC and win so much that the entire piece of legislation is declared unconstitutional and over turned. That is a lot of work to get some people banned, and if they are banned it is because they voted to pass unconstitutional laws. Which doesn’t seem too bad all told.
Remember, the question is how to get the people that make the laws subject to the laws of how to make laws. Short violent revolution there are not many great options.
The last several US elections have flipped Congress by only a few seats, and if votes required 2/3 majority to pass, they’d have to cooperate more and end up with more gradual changes instead of 180° flips.
Look what happened in France, where Marie Le Pen (sp?) got banned from running for office on flimsy charges. That’s what would happen on a large scale if Soros-types know they can knock popular candidates off the ballot permanently with flimsy bill challenges. Voters should be able to vote for anybody they want, without dirty tricks limiting the candidates they can vote for.
I think you are conflating parts of your system with my suggestion. My suggestion is simply: if a law is found unconstitutional by the Supreme Court, everyone who voted Yes for it is barred from public office. (Possibly also the president who signed it.) Bolt that on to the current system, nothing about challenges or 2/3 majority to pass, etc.
I used my 2/3 for comparison. It encourages slow gradual changes, not hyper=dramatic 180° flips. Your disbarring encourages very targeted attacks with the hopes of 180° flips.
How would there be dramatic flips? How would it be targeted? You bring a case to the SC, based on the hope they find not only for the complainants but also strike down the entire law? If the SC does... good? What's the downside?
"I am going by memory, was unable to find the scene. If you recognize it, let me know."
ChatGPT says: "You are probably remembering a passage from Roughing It (1872) by Mark Twain. In that book Twain tells a comic anecdote about explaining American legal procedure—specifically a coroner’s jury—in a way that makes the whole system look absurd to someone who doesn’t understand it. ..."
Question to ChatGPT: How close are we to a cure for AI "hallucinations"?
"Short answer: we’re not close to a complete “cure.”
But we are getting much better at reducing hallucinations, and many researchers now think the realistic goal is mitigation + detection, not elimination. ..."
> If the objective is to punish legislators for deliberately violating the constitution how do we distinguish deliberate violation from honest disagreement?
My Chartertopia requires all bills have a 30 day review period; they cannot pass until 30 days have passed. Changes restart the review period. If someone brings a constitutional challenge to a bill, and it is not resolved by the end of the review period but is resolved against the bill after it becomes law, every every legislator who voted for it is personally liable.
One approach is to combine that with a price the challenger has to pay, enough to deter frivolous challenges. If the challenge succeeds he gets the money back. That might reduce the number of challenges to a level the court could deal with.
Yes, definitely. I partly assume that, in having loser pays, and that includes all costs, not just attorney fees — time off work, travel expenses, police, lab work, everything that was spent due to the challenge.
> It is an elegant solution and might be workable in a society whose government was much less active than ours.
As you state it, it seems like your proposal would *force* the government to be much less active--because laws that were stuck in the Supreme Court's backlog would not be in effect and would not be enforceable. So there would be a strong incentive to not pass so many laws, so that the ones the legislators really wanted to get passed could actually get reviewed.
This isn't the first location where this has shown to be a problem, but if you do this, then the benefit of putting your team's judges in charge of the legal system greatly increases. Lose an election? That's ok, you can have your judges rule new laws by the opposing team as obviously unconstitutional and fine the opposition.
I'm not sure yet what the effect of Trump's appointments to the supreme court will be over time, but I think that regardless of the solutions above, you have a kind of value lock in due to whoever happens to be in power when the judges are appointed. Maybe you'd have to have the legislature appoint judges, or have referendums on their decisions sometimes
That is indeed a problem with any solution that depends on the courts. The Athenian version made it depend on the jurors.
FWIW, my system is probably closer to the Athenian system. There are no courts; I don't trust third party government prosecutors or third party government judges. The parties to a dispute have to resolve the dispute themselves. They can of course hire all the help they want, including lawyers to talk for them if they are no good at public speaking. I like to say face to face, but video conferencing is fine, they can even do everything though their hired lawyers, but the parties alone are responsible for the decision, not judges, not the parties' lawyers.
They can hire juries; but jury opinions are still just opinions, not decisions. It is still up to the parties to consider how the jury's opinion relates to other aspects of the case.
And in the end, it comes down to what the public thinks of their negotiated verdict. The loser owes everything, all expenses due to every aspect of the dispute, although being negotiated, they can dicker and bargain all they want. It is their verdict. Even if they both agree that both parties owe something, there is still going to be some net verdict.
If the loser does not pay the verdict debt, he is an outlaw, and cannot complain for anything less than his unpaid verdict debt. The practical consequence is that any member of the public can steal from outlaws and they cannot legally complain as long as the theft is less than their outlaw debt. Another consequence is that the verdict must be public and complete, and if the public thinks the loser got a raw deal, they can appeal it, or pay the debt, either outright, as a loan, or any other mutual agreement.
It's not that I trust the public to have more wisdom than government judges. It's that I think crowd wisdom is more likely to be correct than third party judges, especially when lawyers get involved and quibble the justice right out of a dispute. As Eugene Volokh likes to say, lawyers' true super power is the ability to turn every question into a question of procedure. I do not believe the public will put up with that nearly as much as judges do.
Why would criminals who know they are guilty negotiate with their victims? Ask why criminals surrender to police now, or pull over for the flashing lights behind them, even when they know it could mean a long spell in prison. Because they know they can't hide. A party who refuses to participate is acting like a spoiled child who won't do his chores or put away his toys; the adults have to take charge and the child gets no further say in the matter. I call it malingering. The other party can't just write any old nonsense or make stuff up. He still has to lay out the evidence and prove to the public, in that one-sided verdict, that the malingerer really is guilty beyond a reasonable doubt, and really did refuse to participate.
Whether it would work, I don't know, and I don't really care all that much, because its odds of happening are infinitesimal. I would like it; I believe most people would like it if it were in existence for a few years; I believe it's plausible enough for fiction; and its primary goal is to give me a baseline with which to compare legacy judicial systems, which seem to universally favor ritual over justice.
I got a lot of ideas from your book, Legal Systems Very Different From Our Own, both directly and indirectly. It really opened my eyes to thinking outside the legacy boxes. (But I alone am solely to blame for my system :-)
That is an important point. Part of courts working well has to be that they are used infrequently. The more they become a routine way of doing things, the more their problems and limitations will affect our overall wellbeing.
You mention value lock in, but here is another example.
If a law might be invalid due to a Constitutional argument, then it's important to resolve the question one way or another. The courts can help here, and they are helpful even if they are inaccurate in how they resolve the decision. Deciding incorrectly is bad, but it is nowhere near as bad as having the general public just not agreeing on whether something is a binding law or not.
This changes if every law is reviewed. Now those inaccuracies are being systematically applied and enforced, including in cases where the general public already agreed, but agreed in the opposite direction from the court decision.
Many systems only work well if the participants have at least a little bit of interest in trying to make it work. This seems like one of them. From a cultural point of view, it is therefore important that we recognize the difference between disagreeing with someone versus them doing something that against our norms and laws. For example, employer-sponsored health care and 401ks sound like bad policy to me, but I don't think anyone is acting in bad faith or should be treated as such.
To contribute one idea to your question, it seems like it helps whenever a law has some lead time before it goes into effect. If there are 12+ months before a law does anything, then there is time to challenge it. This is the basis of a lot of decisions that affect numerous people. If you change your name or start a major building project or even try to cut down the wrong tree, you can sometimes be required to post notice and wait a certain amount of time so that challengers have a chance to speak up before it's too late.
Now, this kind of thing only works if people are someowhat working together. If it's going to be all war, all the time, then you can do things like just break that rule, too, and pass laws that take effect immediately even though it's against the rules. For that matter, if everyone just does what they want, then judges can just allow illegal things and say they're legal.
Somewhere in all of this, you just have to assume that people actually want to have peace. If everyone just walks on everyone, across all levels of government, then it's effectively no government at all. People then have to fight rather than talk, until and unless some new leviathan emerges.
One downside to the Mark Twain proposal is that it gives the courts too much power.
Remember that judges, being human, don't necessarily follow the constitution either.
One possibility might be having a prediction market for whether the law will be considered constitutional. It cannot come into it effect until an actual ruling if the prediction market expects that it is less than thirty percent likely to be considered constitutional
Clever.
But people betting on that market may be trying to move it to block the law or prevent it being blocked, so it requires enough money on the market by people who are simply trying to win their bets to neutralize those efforts.
If “we” (Congress plus the legislature) really wanted to solve the problem with a Twain proposal variant, it wouldn’t be particularly difficult.
I quite like the prediction market as a starting point, but it wouldn’t be essential. Sufficient would be a new Appeals Court dedicated to just this function.
(FWIW I would treat legality of executive orders and constitutionality of laws in a similar fashion).
Something like 3 out of 7 justices willing to hear the case would be sufficient (or 4 of 9 SCOTUS justices could force the Appeals Court’s hand). Any member of Congress would by definition have standing in this court.
Using your “3 states” model (constitutional, maybe unconstitutional, likely constitutional), to hear the case 3 have to believe “likely”. Then to rule, the law (or exec order) stands unless they rule “clearly unconstitutional” (clearly illegal). Even then, SCOTUS can decide whether the ruling should be stayed before it hears the case (but it always hears the case if the Appeals court ruling is unconstitutional; it hears it at its 4 of 9 option if it wasn’t).
For cases never ruled on by SCOTUS, they can of course also follow the regular path as well.
It seems to me something like this would not in fact overburden SCOTUS. At the very most, there’d be a temporary 1 or at most two year delay in the amount of other cases it takes.
IMO the reason something like this is unlikely to happen any time soon is not any unworkability or SCOTUS time burden issue. Rather Congress’ and especially the president’s incentives are such that it is unlikely we get such legislation passed and signed.
Per Gemini: (Edit: See reply comment below for correction)
Citation
Work: The Secret History of Eddypus, the World-Conqueror
Collection: You can find this in Mark Twain's Fables of Man, edited by John S. Tuckey (University of California Press, 1972).
Page Reference: In the 1972 UC Press edition, this discussion begins around page 378.
You can read the full text of this project via the Mark Twain Papers & Project at the University of California, Berkeley, which maintains the archives of his unfinished manuscripts.
Which when I checked it on the website for the papers, doesn't contain that scene. So I challenged Gemini and switched to the thinking version, after which it admitted hallucinating the quote's location, but states it's not contained in his complete works.
https://www.marktwainproject.org/writings/unpub/texts/secret-history-eddypus/?hl=en-US
One way to frame the problem is that unconstitutional laws persist because the institution that creates the harm is not the one that bears the cost. Even when courts eventually strike a law down, the legislature has already captured years of de facto policy through delay. Voters are too rationally ignorant to connect later compensation costs to earlier legislative choices, so the deterrent effect is close to zero.
A possible remedy is a constitutional “escrow” or bond requirement for rights-implicating laws. When a legislature passes a statute that predictably burdens an enumerated right, a small percentage of the expected enforcement cost is placed into escrow. If the law is upheld, the funds return to the state; if it is struck down, the escrow automatically compensates those harmed. This doesn’t require proving bad faith, doesn’t punish honest disagreement, and forces legislators to internalize the expected constitutional risk in advance. It functions like a market-based pricing mechanism for constitutional uncertainty—something closer to the Athenian and Scottish ideas you mention, but without needing courts to make subjective judgments about intent.
I don't see the point of your escrow requirement. If you make the state liable for costs and trust the legislators to act in the interest of the state, the problem is solved. If you don't trust the legislators to act in the interest of the state, why should they care if the escrow forfeits?
Also, why would you expect a small percentage of the expected enforcement cost to cover the cost of the damage done by a law? Tariffs are cheap to enforce, but the refund is going to be more than a hundred billion.
The point of the escrow isn’t to fund the full refund. It’s to change the timing and visibility of the constitutional risk. Legislators routinely pass laws whose long-term costs are externalized onto future budgets and future officeholders. An escrow requirement forces the expected constitutional risk to appear in the current budget, where legislators actually face tradeoffs and political pressure.
Even if legislators don’t “care about the state” in the abstract, they care about present-year appropriations, interest-group reactions, and media scrutiny of immediate expenditures. Escrow moves the cost from the future (where it’s politically invisible) to the present (where it matters).
And the escrow isn’t meant to cover the full damage. It’s a pricing mechanism—like a performance bond—that forces legislators to internalize the risk they’re imposing. The state remains liable for the full refund if the law is struck down; the escrow simply prevents legislators from externalizing the entire risk onto the public.
Similar to Gemini, Perplexity didn’t find the citation by Mark Twain, however, it commented with a number of possible alternatives…. https://www.perplexity.ai/search/02109f6f-af5f-441b-bfee-c5a0883fc650
France uses a version of the solution you attribute to Mark Twain: there's a Constitutional Council which overlaps in function with our Supreme Court. They can be invoked to review a law immediately when it's enacted, and in fact that's the main time they can be asked to do so. The best sources are in French but here's Wikipedia:
https://en.wikipedia.org/wiki/Constitutional_Council_%28France%29
I think a key thing that makes that work is that, for better and worse, a lot less work goes into each case: less briefing, and much shorter opinions.
I'd say there is no practical difference between an unconstitutional law a lawmaker intended to be constitutional, and one they merely disagreed on. I say lawmakers should be afraid to pass laws close enough to the line that it might be ruled unconstitutional. They should stay far away from that.
It seems to me that all 3 of these methods should be used to some degree
An interesting problem to this is the Supreme Court has ruled since Washington that the court can’t give advisory opinions. They can only rule on actual “cases or controversies” (standing). It is seen as a separation of power issue, as well as a mechanism of maintaining legitimacy by never having to rule on politically hot issues. That is the role of the court is to adjudicate laws, NOT create them
Maybe limiting the legislation to less than 80 laws a year would be a feature rather than a bug.
My proposed solution would be for the court that overturns a law to be allowed to decree that subsequent laws on the same topic may be appealed by a "fast-track" mechanism to that same court, meaning that all lower courts are bypassed for that appeal. You could also give that court the power to punish legislators who disobeyed its ruling with contempt of court and put their seats in the legislature up for immediate new election.
Or you could go whole hog and implement H. Beam Piper's "Lone Star Planet."
You'd just give unelected judges even more power over the legislative branch.
One possible solution would be to set a penalty for voting for a law later found unconstitutional such that the legislators lose their seat and may never hold public office again. (Possibly also forfeiting whatever retirement or other benefits if they are subsequently out of office when the law is overturned.) The principle is that whether a law would be outside of the government’s constitutional powers is pretty well understood and could be tested ahead of time, so anyone pushing that line knows what they are doing. Since people can not be fully made whole from government overreach the duty is to avoid such.
I believe it is similar to strict negligence rules, although I am tired and under the weather so I might be misremembering, where the actors have a duty to not screw up; “whoops, silly me! I didn’t mean for that to happen!” is not a defense.
Strict liability instead of negligence liability. Negligence does not require intent, only that you knew or should have known.
Thank you! My flu rattled brain wasn't picking the right item through the fog.
That's close to my proposal, but legislators are on the hook only if they voted for the bill while the challenge was pending. It's not reasonable to hold them accountable for challenges which showed up a year or ten years later.
It also encourages challenges early, while still a bill, rather than waiting years.
I don't like kicking them out of office and barring future candidacy. That puts a very few radicals in charge of voter choices, and the challengers suffer no consequences anywhere near as drastic for losing their challenge.
Well, I do like your proposal, what I can glean from the comments here at least. I think that the issue of a short challenge period being the only danger zone is that swings in public opinion and thus legislative craziness lead to a lack of repercussions later.
I don't quite see what you mean about a very few radicals being in charge of voter choices. I see barring from public office being the penultimate penalty for what is arguably the worst thing a legislator can do. Exceedingly few cases go before the Supreme Court, fewer still that overturn laws as unconstitutional. If it gets that far and goes that badly, you done fucked up and need to pay a heavy price, such that every legislator's first question upon thinking about a new law is "Are we even allowed to do this, or will it destroy my career forever?" That seems to me to be the right hurdle to clear before deciding to coerce other people and do all sorts of damage.
Let me expand upon that. You point out how long it takes to get through the court system, and that’s part of what is wrong with the Marie Le Pen banning — the trial court ruled against her, so she can’t run, but the appeals courts haven’t even begun considering her case. What if they overturn her conviction in three or four years? Too late! One corrupt local court robbed voters of a popular candidate.
Look at Germany, where AfD got tagged as neo-Nazis a year or two ago, and just recently got untagged. There was a real chance one bureaucrat or one judge could have knocked the entire party off the ballot.
That’s what would be possible if any trial court rules for a defect challenge, even if they get overruled several years later. It’s simply too drastic a penalty and would take elections away from voters.
I am fairly sure I said “the Supreme Court rules it unconstitutional” at least once, and never said anything about some local twit banning politicians. I believe that is where you are erroneously conflating things.
That does improve yours, but I don't think it changes the calculus of Soros-types targeting selected politicians for drastic changes.
So again, how do you target for big changes? You still have to get the case to the SC and win so much that the entire piece of legislation is declared unconstitutional and over turned. That is a lot of work to get some people banned, and if they are banned it is because they voted to pass unconstitutional laws. Which doesn’t seem too bad all told.
Remember, the question is how to get the people that make the laws subject to the laws of how to make laws. Short violent revolution there are not many great options.
The last several US elections have flipped Congress by only a few seats, and if votes required 2/3 majority to pass, they’d have to cooperate more and end up with more gradual changes instead of 180° flips.
Look what happened in France, where Marie Le Pen (sp?) got banned from running for office on flimsy charges. That’s what would happen on a large scale if Soros-types know they can knock popular candidates off the ballot permanently with flimsy bill challenges. Voters should be able to vote for anybody they want, without dirty tricks limiting the candidates they can vote for.
I think you are conflating parts of your system with my suggestion. My suggestion is simply: if a law is found unconstitutional by the Supreme Court, everyone who voted Yes for it is barred from public office. (Possibly also the president who signed it.) Bolt that on to the current system, nothing about challenges or 2/3 majority to pass, etc.
I used my 2/3 for comparison. It encourages slow gradual changes, not hyper=dramatic 180° flips. Your disbarring encourages very targeted attacks with the hopes of 180° flips.
How would there be dramatic flips? How would it be targeted? You bring a case to the SC, based on the hope they find not only for the complainants but also strike down the entire law? If the SC does... good? What's the downside?
"I am going by memory, was unable to find the scene. If you recognize it, let me know."
ChatGPT says: "You are probably remembering a passage from Roughing It (1872) by Mark Twain. In that book Twain tells a comic anecdote about explaining American legal procedure—specifically a coroner’s jury—in a way that makes the whole system look absurd to someone who doesn’t understand it. ..."
So far none of the AI suggestions appear to be correct.
Question to ChatGPT: How close are we to a cure for AI "hallucinations"?
"Short answer: we’re not close to a complete “cure.”
But we are getting much better at reducing hallucinations, and many researchers now think the realistic goal is mitigation + detection, not elimination. ..."
> If the objective is to punish legislators for deliberately violating the constitution how do we distinguish deliberate violation from honest disagreement?
My Chartertopia requires all bills have a 30 day review period; they cannot pass until 30 days have passed. Changes restart the review period. If someone brings a constitutional challenge to a bill, and it is not resolved by the end of the review period but is resolved against the bill after it becomes law, every every legislator who voted for it is personally liable.
One approach is to combine that with a price the challenger has to pay, enough to deter frivolous challenges. If the challenge succeeds he gets the money back. That might reduce the number of challenges to a level the court could deal with.
Yes, definitely. I partly assume that, in having loser pays, and that includes all costs, not just attorney fees — time off work, travel expenses, police, lab work, everything that was spent due to the challenge.