Bailey Amendment to Remove Unconstitutional Laws

by Jason Stotts

I recently listened to Diana Hsieh’s interview of Stephen Bailey on Limiting Government by Constitutional Amendment, which I recommend you listen to.  The topic of the show was Bailey’s idea to amend the constitution to allow challenges of any law on constitutional grounds to come from any citizen, obviating the onerous conditions under which a person can prove “standing.”

I reached out to Stephen and he’s graciously permitted me to republish the full text of the amendment:

The right of the people to annul unconstitutional law shall not be infringed.

Any person may bring suit challenging the constitutionality of any legislation, regulation, or rule enacted or promulgated by any government within the State of Colorado, except items consisting solely of appropriations.

Any person subject to the challenged legislation shall have standing to bring such a suit in a court within the governing jurisdiction of the law and that court shall have jurisdiction to hear the suit.

Such suits shall be heard by a jury composed of twelve jurors, randomly selected from the eligible electors residing in the judicial district in which the suit is brought. Jurors shall be disqualified and may only be disqualified due to demonstrated conflict of interest.

Unless two-thirds of a jury shall find the law a necessary and proper exercise of power delegated by this Constitution, and not infringing unalienable individual rights protected by this Constitution or the Constitution of the United States, the law shall be annulled.

Any appeal of a jury annulment shall comply with the requirements specified herein.

All convictions under a nullified law shall be immediately voided.

The jury may separately find, through a simple majority vote, that the public officials who enacted an annulled law wantonly violated their oath to protect and defend this constitution and, therefore, are ineligible to hold elective or appointed public office in the State of Colorado. This disability shall be effective upon completion of the term of a currently held elected public office, or immediately if not currently holding an elected public office. No public official shall be held accountable for approving or enacting a law, regulation or rule prior to the ratification of this amendment.

Obviously this was written as a state amendment, but I think this kind of thing is absolutely vital to have at every level of government.

No matter your political orientation, we all agree that there are lots of terrible laws on the books. Lots of old laws, lots of pernicious laws, lots of laws whose only function was to oppress a group or deny rights to a group.  These kinds of laws need to go.  The problem is, though that once they make it onto the books, they’re nearly impossible to get rid of.  No legislator wants to do it.  But often these laws still affect people and hurt their lives; for example, that it is illegal even today to sell “sex toys” in Texas.

Consider that this could be used to repeal laws like:

– prohibition on victimless crimes (like marijuana, prostution, gambling, etc)

– prohibitions on abortion

– prohibitions on stem cell research

– unfair “progressive” taxes

– prohibitions on lawful carry of firearms

– political corporate cronyism and special interest warfare

– “blue laws” against the sale of alcohol

There are at least two problems I see and they both relate to the scope of the amendment.

First, the amendment doesn’t go far enough in that it would still leave the people powerless before misuse of the power of the executive branch and all of the regulatory mess that is the “ABC organizations.”  Now, it may just be that those things should be dealt with by a different amendment, but they seem at least somewhat similar.

Second, the amendment goes too far.  Some laws are right and necessary:  we don’t want anarchy.  Government is necessary to secure rights.  Obviously, the amendment has some protection here for good laws, but I wonder if there shouldn’t be some class of law that was beyond the ability of a challenge?  Of course, if there was, then that law could then be made to do exactly the kind of thing this amendment is trying to prevent.  I guess my worry here is whether the people can really be trusted.  I guess if they can’t then we have more serious problems than a simple bad law.

Overall, though, I think this amendment is a wonderful idea and I’m interested to see how Bailey further develops it.  I’d love for it to become a force in politics and make its way into law.

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