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Comment by jsnathan | Hacker News Reader

Contrarily I would expect a clause prohibiting unconstitutional laws in pretty much every single constitution ever written.

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.

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> Contrarily I would expect a clause prohibiting unconstitutional laws in pretty much every single constitution ever written.

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.

You might be right about this. I found no mention of this at all in the Norwegian constitution, and I found various clauses explicitly giving immunity for votes cast during their tenure in several other constitutions I looked at. This presumably also applies to laws later ruled unconstitutional.

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?

Do you punish the guy who drafted the initial proposal? The guy who added the amendment that made it unconstitutional? Everybody who voted aye when it went to the floor?

Yes. While you can perhaps forgive any single individual for thinking a law might not violate the Constitution when it actually does, the deterrent effect should be that laws of questionable constitutionality should deter anyone who suspects such unconstitutionality that it would bar them from voting on it.

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.

I love this idea, but I fear it's unworkable in practice.

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

A Constitution with zero teeth is sure to be perpetually shat upon, which is our current reality.

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.

"Mr. President," one aide in the meeting said. "There is a valid case that the provisions in this law undermine the Constitution."

"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...

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