Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Tuesday, March 14, 2006

42 USC 1983 liability on Members of Congress

Members of Congress should reasonably know what the Constitution says.

One proposed agenda item for the Constitutional Convention is to strip legislative immunity from members of Congress when they pass acts contrary to the Constitution.

[ This is the Constitutional Convention Archive [ Click ]

One example proposed unconstitutional statute is a law prohibiting publication of material related to unlawful Presidential conduct.

Congress knows there is a Bill of Rights and 1st Amendment barring any Act of Congress that precludes freedom of speech.

The way forward is to impose a meaningful sanction on Members of Congress when they pass legislation that a reasonable person would know violates -- or is intended to violate -- the Constitution.

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The way forward is to discuss the range of Congressional abuses and what impact 42 USC 1983 liability would do to preserve the Constitution.

It is clear that despite oaths to the Constitution, Congress continues to seriously discuss acts which would clearly violate the statute.

The issue is the cost and expense of 42 USC 1983 claims. As with litigation against public officials in local and federal government, the litigation and discovery can be costly.

Given the gravity of the Congressional misconduct, the time required to litigate, and the excessive delays Congress could forseeably impose on plaintiffs, it would be reasonable for the Constitutional Convention to award all costs, damages, and attorney fees as a matter of routine business.

Namely, not only would the successful plaintiff against a Member of Congress be awarded attorney damages; the Member of Congress would also know that passing unconstitutional acts would attach a personal liability and interfere with the Legislative process.

Members of Congress cannot credibly argue "the litigation will be cumbersome." That is the point: Despite the oath and clear Constitution, Members of Congress are doing what they should know is prohibited. The very least a Member of Congress should have to consider is that -- if they do something that is not permitted -- that they will face subsequent intrusions.

It is our view the tradeoff is appropriate. Namely, Members of Congress are not in an insulated Chamber devoid of the law; rather, their conduct when it violates the law cannot enjoy immunity.

Those who are protected by the Constitution cannot at the whim of Congress have that protection stripped simply because a majority party chooses to ignore the Constitution.

A reasonable way forward is to do what should have always been done: When Congress denies the public of protections of the Constitution, the public and court can reasonably deny the member of Congress absolute immunity.

If Members of Congress do not want to have their absolute immunity stripped, then they need not consider legislation which strips the effect of the Constitution.

The Constitution remains. Moreover, given the gravity of the offense, and the foreseeable litigation expenses, members of Congress should have personal liability -- as CEOs of corporations -- in having their personal assets attach to the litigation liability and damage award.

Such a potential risk to members of Congress should act as the necessary deterrent to unconstitutional acts.

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The First Amendment is clear. It is unconstitutional for Congress to outlaw publication of Presidential misconduct and lawlessness a crime.

Defamation case law hinged on the publication of falsehoods. The issue isn't whether or not someone has been slandered, but whether the public is best served by the publication of evidence about abusive Executive powers.

The public cannot reasonably be expected to make informed decisions if they are denied information material for a voting decision.

It is our view that Congress when it passes similar statutes recklessly tampers with the public's faith in the rule of law and Constitution. Congress does not have the power to do this; yet, despite the oath to preserve this Constitution, members of Congress take action contrary to what is clearly promulgated.

It is reasonable that the States discuss new methods and statutory protections to impose sanctions on members of Congress. Congress -- and Members of Congress individually -- do not have the power to act in a manner contrary to the Constitution -- nor can they be immune to lawful retaliation when they blatantly defy the Constitution.

Members of Congress have abused legislative immunity. No reasonable person can expect to have their unconstitutional conduct unchallenged. Any legislative immunity that might prohibit lawful retaliation cannot stand.

There can no longer be absolute legislative immunity. Rather, Members of Congress when they take an oath can only reasonably expect to enjoy protections when they protect the Constitution.

By failing to preserve the Constitution, they cannot justify absolute immunity, especially when that immunity leads to conduct which violates the protected rights of others.

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Any enforcement of any unconstitutional Congressional act shall continue to face 42 USC 1983 claims.

Any officer in any state of Federal office or enforcement agency which enforces any statute prohibiting the freedom of speech -- or takes any action which restricts the publication of information related to unlawful government conduct, abusive of power, or violations of ministerial requirements -- should reasonably know their conduct violates the Constitution.