All too often basic rights are infringed by legislators at the local, state, or national level. These legislators pass laws that fly in the face of basic rights, preventing citizens from enjoying such rights until a court strikes them down. Since legislative bodies can pass laws with relative ease and virtually no cost to their individual members, it is easy for a situation to arise in which basic rights are severely and repeatedly restricted, with little recourse for the citizens. This problem is especially pronounced when the right being infringed is not popular with the majority of the voters, preventing the political process from correcting the problem during the next elections. To combat this problem, I propose the imposition of liability upon individual legislators who intentionally abuse the legislative process to infringe basic rights:
An pair of examples showing why legislative liability may be needed
After the Supreme Court clearly upheld the 2nd Amendment right to have a handgun in the home for self defense in D.C. v. Heller, the District of Columbia legislative body passed new gun control laws that imposed a plainly unreasonable restriction on the right to keep and bear arms for self defense. Included in those restrictions was an outright ban on semi automatic pistols, which are the most common type of handguns by a wide margin. The NRA and D.C. gun owners are suing again to get this law overturned, and even the U.S. Congress is considering acting to fix this violation of the constitution, but in the mean time the right to keep and bear arms is still being infringed.
Another example is Congresswoman McCarthy, who wanted to pass a rather draconian anti gun rights law, but didn’t even know what she was trying to ban when she went on TV to argue in favor of the ban, which would also seem to be an abuse of legislative power.
The basic idea of legislative liability
The proposed idea of legislative liability would be to make legislators who recklessly or intentionally infringe a basic right liable for monetary damages. This would provide an incentive for the law makers to respect the constitution, as there is sometimes no personal incentive for them to do so (other than the oath they swore). The measure of monetary damages, as well as whether liability is called for at all in a given case, would be determined by the court system, just as other civil cases are adjudicated.
Safeguards to prevent the abuse of legislative liability
The idea of legislative liability may at first seem ripe for abuse by disgruntled citizens, however safeguards could prevent this. For starters, it could be restricted only to the infringement of a basic and already acknowledged constitutional right, such as the right to keep and bear arms, free speech, freedom from unreasonable search and seizure, etc. A further safeguard would to place the burden of proof upon the individuals suing the legislatures, requiring them to show clear and convincing evidence that the legislature(s) recklessly or intentionally infringed a basic right. There could also be an independent administrative agency to which such claims must first be made, rather than allowing suit to first be filed directly against the legislature. Finally, costs and fees for the lawsuit could be shifted to the losing party, preventing a legislature who was found to have acted in good faith from having to pay for defense attorneys.
I’ll start by saying that I doubt this legislative liability idea will ever see the light of day, for the simple reason that the very legislators who could be held liable under this idea would have to first enact it, and very few legislators would vote to make themselves potentially liable. However this system does seem to me to be a means of combating legislators who go about passing laws that clearly infringe a basic right. Obviously this article is a very brief overview, however my goal here is only to float the idea, rather than to create an annotated model legislative liability statute.