Are you saying politicians shouldn't attempt to do what their constituents sent them to do, under the penalty of imprisonment? Minorities are protected not by politics, rather by judicial review, which worked great in this case.
Remember that these principles are so general, they must apply equally to Western politicians pushing security policies, as to e.g. Muslim politicians in Egypt or other ME countries pushing for Sharia-inspired policies.
What their constituents want is a nice idea until this violates the most basic rights of citizens spelled out clearly for this purpose, i.e. to guide and limit any future laws.
That being said, there is always the possibility of revising the constitution. Even if that is not a good idea. But for good reason, that is a lot more difficult to accomplish.
Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.
If transient violations that might take many years to resolve, and often present a slippery slope, do not face any censure, then they are practically above the constitution, even if there is a theoretical process.
While you point out that it worked in this case, that is nothing but an anecdote. I could equally list many cases where the exact opposite is the case. Consider for example the difficulty faced in bringing security policies before the courts in the U.S., due to the government claiming that the very discussion of the details of the implementations of these policies would harm national security.
> Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.
I'm sorry if I was unclear, but I tried to address both of these points in my first reply. Let me try again to put it more clearly.
First, they should lose their office for abusing its privileges. This has nothing to do with the fact that they violated, or worked against the constitution specifically, but that they violated the oaths of their offices, which happen to preclude that.
Secondly, the punishment does not require newly introduced 'ex post facto' laws, as you seem to be implying, but should be in keeping with the facilitation of the violation of actual existing laws, which prevented the unconstitutional actions from taken place before the new laws were passed.
In other words, a politician that facilitates a law that unconstitutionally provides exceptions to previous existing laws, should be liable as an accessory to the crimes specified by that pre-existing law.
As far as determing their complicity is concerned, I believe that the fact that most everything is on record makes that fairly trivial.
The issue is not that elections give people a status that puts them beyond the constitution, but that the constitutions rarely make it a crime to pass unconstitutional laws at all:
In most cases of unconstitutional laws, the laws tend to be unconstitutional not because it is against the law to pass them, but because the rules they add can't be reconciled with portions of the constitution in question, and so are found to be invalid or similar.
Even in the case of the US - or any other countries with similar language - note that even in those cases constitutions specifically does not (at least not in any case I know about) follow the pattern of a criminal code: It does not set criteria for punishment. So even if you were to get a court to assign blame and e.g. "convict" Congress, there would be no consequence.
If you want politicians to be punished for passing such laws, then that in itself would require a massive constitutional change.
Generally you should assume that this is intentional, given that the judiciary is explicitly separate and independent, and so one can rarely assume that individual politicians can know whether or not any given law will at some future date be found to conflict with the constitution. Especially given that interpretations of constitutional law, as any other, tends to evolve over time. Sure - there might be the odd really blatant attempt at passing something silly - but those really blatant attempts are also the least dangerous and least important, as they will be struck down quickly.
The dangerous ones are exactly the ones that are sneakily enough formulated that they stand a chance to escape unscathed. But then, those are also the ones where it is unreasonable to assume that the people voting for it had reason to believe it would be unconstitutional.
As you say however, constitutions rarely define crimes, and so making the passing of unconstitutional laws a crime would be an unexpected outlier. This is not however what I am talking about.
In passing a law that knowingly violates the constitution, the politicians are acting to _enable_ crimes, or rather, actions considered crimes under existing legislation. This action takes place before the new (later to be hopefully struck down) law is passed, and should be considered a criminal act.
As far as knowing what they are doing affecting their conviction or punishment, I fully agree that not understanding that their actions will lead to "necessarily criminal" consequences, should be considered a mitigating factor.
That would be very strange. Not even the US constitution has that because it would be legally redundant. Of course a law that is inconsistent with the constitution is invalid. There's no need to state that.
What the US constitution does is in itself unusual when it specifically calls out what types of laws Congress can't pass rather than setting out principles that would render these laws invalid because they'd conflict.
E.g. Norway's constitution used to have a clause that states a "right to work" rather than stating that parliament can not pass laws that have the effect of restricting peoples right to work. The effect is the same, and the former approach is to my knowledge far more common in constitutional law.
> In passing a law that knowingly violates the constitution, the politicians are acting to _enable_ crimes, or rather, actions considered crimes under existing legislation.
A major part of a parliaments function is to alter what is considered crimes under existing legislation. If they can not do this without fear of criminal prosecution if one of these laws are found to conflict with the constitution... Well, that constitution would be amended very quickly after it becomes obvious no laws gets passed anymore once politicians fear the whims of a constitutional court which can change with every new appointment.
It is not what I would have expected, and strikes me as an oversight. Moreover, it reeks of entitlement.
There should never be any necessity to pass laws that even come close to violating a constitution, so no, I do not believe it would slow down the legislative process.
Instead, it would provide an incentive to avoid passing laws which will hopefully soon be struck down again, some 2-10 years later, but may cause damage to society in the meantime.
If politicians need to be afraid of the constitutional court for passing a specific bill, they should not pass it. There is also usually a way to demand an opinion from the court before a bill is passed, which might absolve them in this regard.
Surely the incentives should be set up to avoid unconstitutional laws from ever being passed in the first place, and not to only be active for "short" periods at a time?
If the law doesn't get enough votes to be passed, then nobody gets in trouble.
I honestly don't know that it solves the problem of laws living up to the letter of the Constitution while failing to live up to the spirit, but it'd be a start.
In the first place, it's lawmakers at the end of the day who have to approve this thing (even if you manage to swing a constitutional convention, and that's scary all on its own) - and I think you'd be hard pressed to get the requisite number of someones to pass a law that can only make their own lives worse.
It would require a revolution, basically - the entrenched system (and my apologies for that eye-rolling cliché) would never allow it. It would take the same fresh look and honest forward thinking that led to the constitution's drafting in the first place
That said, I agree that it's unworkable, for exactly the reasons you stated. Beyond that, the ship has sailed. With our current interpretations of the Constitution, there's hardly any law that could be presumed unconstitutional by any common man.
Any such fix would require either a revolution or a time machine.
"Stop throwing the Constitution in my face," Bush screamed back. "It's just a goddamned piece of paper!"[1]
1. http://www.dailykos.com/story/2005/12/11/171129/-Bush-on-the...
I'm not seeing that. There is no inherent, nor implied right to immunity. You can legislate it away (however unlikely that might be) and there is no recourse to the constitution.