Reckless Legislation: How Legislators Ignore the Consitution

Article 6 of the U.S. Constitution requires that every U.S. Senator and Representative, as well as all members of any state legislature, take an oath or affirmation to support the Constitution. Legislators, after all, must accept the basic principles embodied in the Constitution and Bill of Rights when interpreting questions of law. The only way to change these principles is through amendments to the Constitution. But in an increasing number of cases, contends Michael A, Bamberger, our legislators are knowingly abdicating their responsibility to uphold the Constitution. Instead of considering the constitutionality of legislation, they vote for what is politically expedient and popular, leaving it to the courts to determine the legality of their actions. Bamberger argues that legislators have a duty to consider constitutionality and not “pass the buck” to the judiciary regardless of political pressures or even well-meaning intentions to achieve desirable policy objectives. Reckless Legislation examines legislative consideration and avoidance of issues of constitutionality through a number of examples: the regulation of the Internet by Congress and two state legislatures; the reliance by legislatures of Minneapolis, Indianapolis, and Tennessee on “experts” to justify passage of unconstitutional laws; the repeated passage of unconstitutional laws in New York and Missouri relating, respectively, to religion and abortion to wear down the courts and the opposition; and the efforts by Congress to reverse Supreme Court decisions believed by it to be incorrect or harmful. Bamberger urges legislators to avoid the political motives that lead to “reckless legislation,” recommending that they “make full use of the full panoply of available support services . . . for a better and deeper knowledge of the issues raised.”

Table of Contents:
Acknowledgements Introduction 1 A Brief Historical Overview 2 Children, Fear, and the Internet 3 The Wright Brothers' First Plane Didn't Fly Either 4 A Constitution-Proof Law 5 If At First You Don't Succeed, Try, Try Again 6 Legislative Reversal 7 Advisory Opinions and Other Proposed Remedies 8 Conclusion Statistical Appendix: Analysis of a Survey of Legislators, Legislative Counsels, and Offices of the Attorneys General Notes Index

Review :
A fascinating and well-reasoned account of legislative failure to honor clear constitutional norms that safeguard First Amendment rights. - Joel Gora (professor of law, Brooklyn Law School) Mr. Bamberger has crafted a tight and well-reasoned argument for higher expectations from our federal, state, and municipal legislators as a response to the increase in the number of unconstitutional statutes passed through the country and in Washington. . . . An enjoyable and insightful read, portions of which should be a part of every undergraduate political science course on American government. (New York Law Journal) Bamberger begins with a history of the perpetual tensions between legislatures, executives, and judiciaries regarding who has the final authority over laws. . . . Reckless Legislation is a scathing indictment of legislatures at all levels. BambergerÆs . . . analysis of the causes and consequences of passing deficient legislation is quite comprehensive. . . . His well-researched and readable book offers valuable advice for addressing defects in the law-making process and for restoring trust in American legislators. It should have widespread appeal for academic and general readers alike. (Perspectives on Political Science) Reckless Legislation glitters with intelligence. It is both precise and compelling. - Scott Turow (author of Personal Injuries) The irresponsible passage of unconstitutional legislation leads to unhealthy cynicism and is harmful to our system of government. The unwillingness of legislators, at both the state and federal levels, to consider seriously the constitutionality of legislation when it is not politically expedient to do so constitutes an abdication of their constitutional responsibilities in the most fundamental sense: it constitutes an undermining, for political and selfish motives, of the system they are sworn to serve. (from Reckless Legislation: How Lawmakers Ignore the Constitution)