Wow. How accurate is this evaluation of the challenge? I'm not a lawyer, but this would appear brazen if accurate.
It might be time for Americans to pass a system where every new law has to be reviewed by the Supreme Court, like it happens in other countries.
I've always wondered why it is that we don't do that here. It's very much in line with the 'checks and balances' concept of the government's structure.
I would be concerned about the situation where the court effectively ends up with a veto and maybe decides that they should be the ones in charge. The only way out of that pickle is to reject the constitution.
Edit: I think the argument could be made that it weakens the checks and balances though. As it stands the court can overrule lawmakers, but it takes a long time generally for laws to wind up there. If they have a more immediate veto power who checks them? Not the lower courts which, to some extent, acts as a filter today.
People don't have to be forced to do things to make effectively political decisions. Being incentivized also works. And social incentive seems to work at least as well as monetary incentive.
People have families and lives and friends.
Consider that the "broccoli" argument against the PPACA's personal mandate -- an argument broadly laughed off by constitutional scholars -- was echoed verbatim by justices with mere social connections to the groups who originally espoused said laughable argument.
Well, you can look at a country that does and where that leads. In Iran, their Supreme Court is called the "Council of Guardians" and they get to do a lot of pre-passage stuff, including strike the law down pre-emptively, declare that some candidates are not eligible to run, etc. and they get to do all this sua sponte. While it is a fair point that they also have their own police force, I don't think that's the only issue here. It means the judiciary is an explicitly political force accountable to the Assembly of Experts, and hence theoretically to the people, but with a voice powerful enough to shape the terms of that accountability.
I think a better solution would be to relax standing issues regarding particularity of injury where widespread Constitutional violations are alleged. For example, if it becomes illegal to criticize the President tomorrow, I would hate to think that voters registered Democrats could not challenge the law on the basis that their injury is not particularized enough. Similarly where wide-ranging searches are alleged and everyone is injured, the particularity requirement should be relaxed.
In 2006, the USA PATRIOT Improvement and Reauthorization Act rewrote the disclosure rules for NSLs. You can both consult an attorney and challenge the NSL in court.
Consequently, the number of NSLs issued declined and the number of FISA surveillance requests increased after that change.
Then we would prevent most new useless laws.
That's simply brilliant. Did you come up with that yourself, by the way?
I think that people could be persuaded that this should be a fundamental principle like democracy or free speech. It sufficiently meta that it wouldn't carry a lot of political baggage. For example, a person who ardently supports a particular law might accept this 80/20 principle even knowing that his favorite law could get stuck down.
This idea should be given a catchy name so it can spread as a meme.
My own wish is for a "balanced budget" amendment for complexity: the government gets a finite amount of complexity they can spend on laws & bureaucracy, and to enact more laws they must first remove others. But you'd need a way to quantify complexity. Your solution is much more practical.