What should be the punishment for writing a bad law?
Watch any video or read any article discussing the efforts of legislators to pass gun control or of judges who find such legislation to be constitutional, and it is a safe bet that someone will post a comment to the effect that these lawmakers or judges should face penalties for doing so—penalties that would presumably be quite severe, given that the supposed crime here is often labeled as treason.
The definition of treason is limited in U.S. law, a fact that was to be expected in a nation breaking away from a monarchy, a form of government that all too often includes insults to the king in this category of crime. According to Article III, Section 3 of the federal constitution, treason is the act of levying war against the United States, adhering to the nation’s enemies, or giving such enemies aid and comfort.
It is worth wondering under what circumstances this provision could be applied, since we have not declared war since the midst of World War II when we included Bulgaria, Hungary, and Romania in our list of Axis enemies. Authorized usage of military force does not quite have the same punch as the Constitution’s term. Someone certainly can adhere to our enemies or assist them in their endeavors, but connecting a piece of legislation or a judicial ruling to the interests of an enemy power would be an extraordinary stretch—unless we are discussing money sent by the Russians to the National Rifle Association to influence the 2016 election.
The argument, I suppose, is that enacting or upholding a gun control law could potentially weaken us if we were ever to be invaded. That is a matter for debate, and while I agree that an armed populous has a higher chance of resisting, that is a strategic conclusion, one that I reach on the basis of my interpretation of the available evidence. Those who disagree with me have a variety of reasons for doing so, but sustaining a charge against them that they seek to harm the United States is more than could be done in American courts—at least as long as we have not declared a fascist dictatorship in which the charge is enough to convict.
What about a lesser charge? Members of the executive branch at various levels can be accused of violating someone’s civil rights or conspiring to do so, as is done, for example, in cases of police beating of a suspect, but legislators at the local, state, and federal levels have what is called legislative immunity in the U.S. constitution and extended under federal law by the Supreme Court to lower bodies for performing their official duties, duties that include the writing of laws. We may not like a given piece of legislation. Lots of people may find it to be silly, oppressive, or outright unconstitutional. But it is not a crime to write laws.
The interpretation of those laws is the job of the judicial branch, a power given to that institution by the Constitution and clarified over time by cases and amendments. In a basic sense, the law is what ultimately the Supreme Court says it is. The law can be amended or repealed, and justices can be replaced, allowing for new rulings after some length of time, but it is the job of judges to work out what the laws and previous court rulings mean. If a panel of the Ninth Circuit, let us speculate, were to declare that an AR-15 is not a protected arm under the Second Amendment, I and many others would disagree, but we would be arguing a matter of interpretation. The hypothetical reading here would not be a crime, as much as anyone may find it to be distasteful.
Note here that I am discussing the law, not basic rights. That hypothetical ruling would need to be taken upward to the highest court, and if sustained there, it would be the law, subject to future amendments and rulings. Ideally, the law conforms to and protects rights, but this is not always the case.
The problem is that texts are objects in need of interpretation. I may say that a given text has an obvious—call it a plain—meaning, but invariably there will be someone whose interpretative method differs from mine, and what is clear to me may be to that person an obscurity. Or may plainly mean something entirely different.
Rather than threatening civil or criminal penalties against legislators and judges who write and read laws in ways that we do not approve, an act that would stifle the debate necessary to a free society, it would be better to teach basic writing skills so that more of our legislators can compose texts with less ambiguity and to promote a wider acceptance of a judicial philosophy that sees individual rights as the proper basic interpretation of any law.