Hacker News Reader

Comment by mwint | Hacker News Reader

It works like this: there are no Constitution Police. No one gets arrested for making an unconstitutional law.

NYC especially is pretty good at this: they make a law, it works through the system and gets struck down by SCOTUS, then they immediately make a slightly different law which has to work through the system and be struck down.

It’s way quicker to make a law than it is to strike it down. Ultimately, if the people of a region keep electing lawmakers who make unconstitutional laws, that region will have unconstitutional law most of the time.

View on HN

Is a law that will, in the future, be found unconstitutional by the Supreme Court unconstitutional before they find it to be so?

Wouldn’t it be more reasonable to view this phenomenon within the context of the balanced powers of government? The Supreme Court has the final say in the constitutionality of a certain law, but that doesn’t make them the most powerful branch of government. They lack the power to try again, and the legislature and the executive have that power.

To me, the system is working as intended when the people elect representatives who repeatedly force the judicial branch to strike down laws the people want. This seems to be a way to redirect this type of question into a political solution, i.e., a way to force people to recognize that what they really want is not a particular law, but a better judiciary or a center Constitution.

After all, the chain of events you’re describing is one that never departs from the mechanisms considered by the Constitution (and the Marbury court, of course, but that ship has sailed).

The problem is that there’s no disincentive to creating laws that are eventually found unconstitutional — a malicious actor is capable of producing ill-formed laws faster, cheaper and with less effort than it takes to identify and remove them. So responsibility isn’t really the issue — the problem is that you can simply overwhelm the other party to make them impotent, and impossible to execute on that responsibility (because if they double their resources, you produce 4X the garbage).

Ideally you would have lawmakers incentivized to produce laws, that upon review, are constitutional, but it remains the supreme court’s jurisdiction to determine that constitutionality.

Like try spamming the FDA drugs unlikely to pass scrutiny — they’ll just shut you out — so you’re incentivized to try to submit something reasonably likely to pass.

I get what you’re saying but I think we approach this from different philosophies (which is fine).

I agree that there is no disincentive to passing laws that the judiciary will nullify (other than the fact they get nullified and have to be replaced). The “malicious actor” of whom you speak appears to me to be the representative of the populace, from whom all power derives, and accordingly I see this as a feature, not a bug. The only incentive they should need to pass useful laws is re-election.

My ideal would be that the courts would interpret and make law, but that political questions like “what comports with the Constitution” would be solved at the ballot box, in the legislature, or with the veto pen, as was intended.

The idea that the judicial branch could be made “impotent” via repeated passing through the duly empowered legislature of bills signed by the duly empowered executive seems like exactly the right amount of power for what was considered by Article III. The courts are, after all, currently the strongest part of our constitutional system.

California loves doing this as well, especially with gun laws.

Many states did this habitually for decades with restrictive abortion laws.

AFAIK in new york the wards were closed largely in response to abhorrent conditions exposed in a documentary at https://en.wikipedia.org/wiki/Willowbrook_State_School and other locations.

Thank you for explaining this to everyone. As someone who is disabled with Schizoaffective Bipolar Disorder and suffered the horrors of today's for profit psychiatric hospitals this is not only unlawful but is a disgusting money grab that Adams no doubt will profit from at some point.

It does not seem like New York City or New York State enacted any laws in this case.

Law, policy, directive, order, emergency action, etc.

All boils down to “government is doing something with force of law” and is reviewable by SCOTUS.

Reply on news.ycombinator.com