First, let me apologize for my extended absence. The last few weeks have been particularly busy in my professional calendar, and I fear it left no time for the joy of blogging. If it’s any consolation, I’ve missed the opportunity to think and write on a regular basis. I guess you could call it a “blogger’s high,” and I’ve certainly been in withdrawal. It should be no surprise—the love of thinking systematically and communicating thoughts to others is what drew me to this line of work in the first place. And I brought you these flowers…
In the stolen moments in my recent schedule, I have had a few ideas I’d like to share. I’d like to propose at least two reforms to our government. Of course, I’d really like to repeal the 16th and 17th Amendments (Ben Bryan has come up with a particularly apropos sobriquet for them, but I’ll let him introduce it). But short of that, here are two ideas.
First, let’s make Congress subject to a limited form of tort law. A tort, of course, is a legal wrong, something done to another for which one owes them compensation to make them whole. (Torte, on the other hand, is a delightful afternoon treat with tea or coffee.) Obviously, it can’t be regular, run-of-the-mill tort law. The entire purpose of forming a government is for it to be able to harm some of us (or our rights) when necessary. The problem comes with government doing it when it isn’t necessary. So I propose that we define a new type of tort, one which only legislatures may commit (and which legislatures would have to define by statute, so I’m obviously tilting at windmills).

The tort is precisely the concern expressed above—government stepping over its proper boundaries. When a legislature passes a law that is later held to have been ultra vires (beyond their powers) or contrary to the relevant constitution, those upon whose rights they infringed should be able to sue for compensatory damages, and the court should be free to impose punitive damages to discourage the behavior in the future.
I can hear the legislator objecting now: “But that will have a chilling effect on our ability to pass laws, to try to find solutions to problems!” Precisely! You make it sound as if that were something objectionable. Where is the downside to forcing a legislature to think about the consequences of its laws, rather than letting them throw laws up to see if they stick? To discouraging them, even at the margin, from passing a law if it’s not necessary? Let’s harness the power of frivolous lawsuits to the public’s benefit—call it the “invisible ambulance chaser.”
Second, let’s amend the 27th Amendment. Currently, it states that no increase in compensation for Senators or Representatives can take effect until an election of representatives has intervened. I propose that we not allow the salaries of elected officials to rise from their first salary at that level (local, state, federal). Incumbents know that they face only a slim chance of not receiving the raise for which they vote, so although Madison’s youngest amendment has the right idea in terms of structuring incentives, the terms of elected officials have become too secure to provide the same carrot.
This will certainly encourage a great deal more turnover in elected officials. I can’t imagine Robert Byrd finding it as worth his while to pester us for the same salary he had lo, these many years ago. Of course, legislators would just as certainly find a way around this—suddenly, the public would be footing much more of their bills in terms of services, rather than salary. But I think we can word the change so as to prevent that (for example, by forbidding compensation other than salary). Will current representatives pass massive salary increases for the people who replace them? I find it difficult to believe that they would increase it by more than they found reasonable for their survival. Perhaps parties would come to coordinate the passage of raises and elections of officers, but at the very least, we would see some newer blood more often. And save a little money at the expense of those wasting ours.
But then again, maybe I’m just cranky because I haven’t had my turkey yet…