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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Sunday, April 20, 2003

I meant to blog this yesterday, but (brace yourselves) Blogger was acting up.

"No legislature can bind its successors" has been a fundamental principle of legislation for centuries. In simple English, this means, no legislature can prohibit the repealing of the laws it passes. Whatever authority a legislature has now to pass a law, that same legislature will have later on to repeal that law, if it desires. Naturally, this chafes: Those who like to sit upon legislatures already have an unhealthy desire to command their fellow man; those whose overwhelming need to sit upon legislatures is such that they will put themselves and everyone around them through an endless meat grinder to get there and stay there are control freaks of the first water, and they don't take kindly to the idea that their proclamations are anything less than eternal.

For most of those centuries above mentioned, all that any legislator could do about this was to grind his, her, or its teeth. The year 1789 brought in a new wrinkle, when the world saw for the first time a National government of limited powers. The new wrinkle was, if one could muster all that was necessary to go through the Article V process, one could pass a law which was beyond ordinary repeal. Look upon the body set out in Article V as a super-legislature, though, and you will see that nothing fundamental has changed: Such laws as are enacted through this process are still subject to repeal by that same process, as is attested by the fate of the Eighteenth Amendment. Here in California, our Constitution has for so long been used for particular legislation that it has ceased being a Constitution any longer. Sections are added, modified, and repealed all the time, as the legislators pursue their dream of unrepealable law. It doesn't work, of course, but that doesn't stop them.

The last twenty years or so, though, have seen a new technique arise, going by the name of "rule by consent decree": A legislature desiring to make its law proof against repeal enacts it as part of the settlement of a lawsuit, thus pulling in the authority of the courts to weigh against any attempt to repeal it. A lot of public policy has been made this way, and a lot of lawsuits have been filed with a view to effecting supposedly permanent changes in public policy. In particular, environmentalist activists are fond of filing such suits, and environmentalist legislators, as collusive defendants, are fond of settling them in this way.

Now let it be said, I find this practice contemptible, and I look forward to the day when legislatures, in the exercise of their undoubted powers as the representatives of the people, start repealing these laws, daring the courts to do anything about it. That said, though, the environmentalist movement, having for decades taking advantage of an illegitimate invitation extended by the courts to work their will into the law of the land, bypassing and supplanting popular legislatures in the process, are in no position to bitch about it when their opponents have some successes at it, too.

-- posted by Clayton 4/20/2003 01:07:00 PM

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