Creative Destruction

May 23, 2006

Equal Protection Clause

Filed under: Politics — Daran @ 4:33 am

From Dan’l’s Multiapostrophic LiveJournal (Hat tip)

I propose (modulo better phrasing) the following Amendment to the United States Constitution, which I call “Equal Protection II.” The first clause may have some bearing on the current immigration unpleasantness, but, as you’ll see, the overal intent is far more general.

1. Neither Congress nor any State shall shall make any law creating new criminal penalties, or increasing existing liability, for any activity which is already illegal, unless it can be shown that existing laws are being generally enforced.

2. When any citizen of the United States is charged with any crime under either Federal or State law, a reasonable showing either that the law under which he or she is charged is not being generally enforced by the Federal or State government, or that it is being enforced by the Federal or State goverment in a selective manner, shall be grounds for immediate dismissal of charges, with the State or Federal government bearing all court costs.

3. No officer of the government of the United States, nor of any of the various States, shall be held immune from any generally applicable law. Any law written so as to be generally applicable except to select officers of the Federal or State governments shall be null and void.

The wording leaves something to be desired, but I’m interested in people’s views on the intent.

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9 Comments »

  1. I like it, but then, I have anarchistic leanings (they conflict terribly with my fascistic leanings, and give me headaches).

    It would put an end to the war on drugs, at least.

    Comment by Robert — May 23, 2006 @ 1:03 pm | Reply

  2. I have no problem with curtailing the current administration’s penchant for abusing their power, but the amendment’s wording is too broad. Unfortunately, that is probably the only way to get an amendment restricting the government’s power passed.

    Comment by toysoldier — May 23, 2006 @ 2:57 pm | Reply

  3. When any citizen of the United States is charged with any crime under either Federal or State law, a reasonable showing either that the law under which he or she is charged is not being generally enforced by the Federal or State government, or that it is being enforced by the Federal or State goverment in a selective manner, shall be grounds for immediate dismissal of charges, with the State or Federal government bearing all court costs.

    I have a problem with requiring that laws “not be slectively enforced.” While it sounds good, what it is likely to lead to in real life is the loss of prosecutorial discretion and thus the enforcement of “zero tolerance” policies.

    That is, courts will have to start prosecuting minor technical violtions of the law in order to avoid exonerating real criminals. (For example, an 18-year-old girl with a 17-year-old boyfriend might have to be prosecuted to the fullest extent of the law or else child molestation would, by the words of the clause, become legal).

    Comment by Glaivester — May 23, 2006 @ 3:15 pm | Reply

  4. The only one of the three I like is no. 3. We can mostly agree that laws should ideally apply to all of us (no one is above the law). In practice, we know that they don’t. Writing exceptions into law is a bad idea, and making such laws null and void would be good.

    As to the others, I’m not certain what problem is being addressed by these proposals. Sure, there is unequal — even selective — enforcement. That’s a wise and necessary reality, which is much better than the rigid, one-size-fits-all approach so much in vogue these days.

    Comment by Brutus — May 23, 2006 @ 3:31 pm | Reply

  5. The difficulty, Brutus, is that the selective enforcement is often used as a cudgel by authority. That may be a necessary cost of giving public servants the discretion needed to competently do their jobs, but selective discretion isn’t an unmitigated good.

    To put it concretely, fill your pockets with marijuana and go stroll around the park for four hours. Now do it as a black man. Repeat 100 times and see which guy gets arrested more often.

    Comment by Robert — May 23, 2006 @ 3:37 pm | Reply

  6. Then we, the people, can push to overturn those laws if we are so outraged about it.

    I don’t think you’ve really thought through the implications of these, Daran.

    Comment by mythago — May 24, 2006 @ 12:00 am | Reply

  7. I am with you fully on number #3.

    I understand what you are trying to do with the others: 1) enforce current laws, before creating new laws (or federalizing state crims); 2) Don’t allow laws that are rarley enforced to be used.

    I think there might be a better way to get at #1. There isn’t a good reason to federalize most crimes (they are local) and perhaps laws should on the same crime should not be able to overlap. Want a new law on X, X’ must replace/supercede X. I’d jave to think about it.

    There must be a better way to do #2. I think all level of governments should have committees that go through laws & regulation and submit to their respective legislatures obsolete ones for cancellation.

    Comment by purpleslog — May 24, 2006 @ 5:30 pm | Reply

  8. That was one of Heinlein’s ideas; for every word of new legislation, two words of old legislation must be mooted.

    Comment by bobhayes — May 24, 2006 @ 6:51 pm | Reply

  9. […] Source: Creative Destructoin Blog […]

    Pingback by PurpleSlog » Blog Archive » Suggested 26 US Constitution Amendments (Part 5 of 8): General — June 26, 2006 @ 7:49 pm | Reply


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