Balkinization

Unconstitutional Laws You'd Like To See

Jacob Levy and Matthew Yglesias have been tossing around two questions:

(1) What laws do you think are constitutional that you oppose as a matter of policy?
(2) What laws do you support as a matter of policy that you think are unconstitutional?

Question (1) should be particularly easy for most people, because most constitutional scholars in the post-1937 period think that lots of social and economic regulations are constitutional that strongly disagree with.

Jacob thinks that "For most originalists, the question is easier still because they think most things are constitutional."

Actually the question is a bit harder for most originalists, because originalism has a much more constricted view of federal regulatory power than current doctrine recognizes. So one presumes that lots of laws which regulate the economy (including, I suspect, a fair number of federal civil rights laws, environmental protection laws, labor laws, and consumer protection laws) would be unconstitutional under the original understanding of Congress's commerce power. I also think there's a pretty strong argument that independent federal agencies like the Federal Reserve and the Federal Communications Commission are unconstitutional under the original understanding. In fact, there's also a pretty good argument that issuing paper money as legal tender is unconstitutional under the original understanding.

Question (2), Jacob thinks, is more interesting. I agree. There are a number of things that I think are good public policy but are clearly unconstitutional. Many of them have to do with structural features of the Constitution that are rarely if ever litigated. Here are some examples:

(1) People who are not natural born citizens should be able to run for President.

(2) The electoral college should be reformed and/or replaced with a runoff system.

(3) The method for deciding who becomes president and vice president if there is no majority in the electoral college is positively looney and should be scrapped.

(4) Supreme Court Justices should serve for fixed terms of eighteen years according to a method set by Congress which would guarantee the President exactly two selections per term in office.

(5) Appointments to Article III judgeships should require 60 votes for confirmation, in order to promote Presidential- Senate bargaining and more moderate candidates. (That is, the Senate filibuster rule, rather than being abolished, should be made into a formal policy for judgeships). In fact, there is an argument that it might be better to require a two-thirds vote.

If you are interested in a large number of such examples, I recommend Bill Eskridge and Sandy Levinson's book, Constitutional Stupidities/Constitutional Tragedies.

Posted 5:26 PM by JB [link]