A Stitch in Haste

The easiest litmus test for whether someone is a libertarian or a governmentalist, at least in the U.S., is to simply ask whether they believe that our government is one of enumerated powers and unenumerated rights. If so, then they're a libertarian; if not, then not. Most of the rest is either mere ballast or Talmudic nitpicking.

Anti-libertarians usually try, for the obvious reasons, to tip-toe around such a framework — it's too embarrassing for them. The current favorite among those who wish to avoid acknowledging their anti-constitutional worldview is the "will of the majority" gobbledygook — despite the fact that individual rights are, by definition, not subject to majority vote. Or sometimes it's consequentialism (e.g., "You don't want another 9/11, do you?") — but again it's individuals who face consequences (i.e., the erosion of their rights), so this line of reasoning is also invalid.

The closest you usually get to an honest anti-libertarian position is "I don't see a right to X in the Constitution," with X usually equaling "privacy" but sometimes referring to abortion or gay marriage or physician-assisted suicide or whatever. Of course, the only reason they don't see such rights in the Constitution is because they're not looking for them — but that's another blogpost chain.

So when an anti-libertarian proves himself perfectly willing to step forward and acknowledge what typically goes unacknowledged: to profess his unrepentant governmentalism and to "call the libertarian's hand," it actually becomes almost refreshing.

Until you realize it's a federal appellate court judge:

The right of privacy is not one of the rights enumerated in the Constitution, and consequently, the Ninth Amendment gives us two instructions: first, we are not "to deny or disparage" the existence of a right of privacy simply because it is not enumerated in the Constitution; and second, we are required to recognize that any such right of privacy is "retained by the people." Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so.

There you have it: There is no constitutional right to privacy even though "clearly, a right of privacy exists at some level," and you, as an individual are not "the people" and have no unenumerated rights until "the people" (i.e., not you) decide that you have them.

This is anti-libertarianism at its core, its ultimate expression, its most absurd: The assertion that the Ninth Amendment is not only not a nullity but is actually a justification for denying you your rights.

If you are not a libertarian, then this is the kind of logic you are, in some manifestation or variation, embracing as your own. Stated differently, if the jackboot fits, then don't be surprised when it kicks you in the face.

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One quick footnote: This judge, who professes to be a strict textualist (if not a strict denotationalist), calls in the same piece for a national referendum on whether there is a right to privacy. The fact that the Constitutional nowhere provides for voter referenda is, of course, of no concern to him. Go figure.

Hat tip to Crime & Federalism. More thoughts at Prawfsblawg.

I recently posited a quick litmus test for determining whether someone is a libertarian.

Well, here's a test to see whether someone is a libertarian or a conservative: Review this Human Events list of the supposed "Top 10 Supreme Court Decisions That Should Be Reversed" and see how many you agree with. A conservative would agree with all or most of them; a libertarian would scratch his head at many of the choices (not all, but most).

Speaking of litmus tests, I suppose that, to be a proper (i.e., dogmatic) conservative, it's mandatory that Roe v. Wade top any such list. Ditto probably for Lawrence v. Texas being an automatic Number Two.

In any case, here is my list (in descending order) of the ten worst Supreme Court decisions that are still good law. See if you can sense a pattern. And if you like my list more than the Human Events list, then congratulations — you're a libertarian and not a conservative.

1. McCulloch v. Maryland, 17 U.S. 316 (1819)
--Rendered the Necessary and Proper Clause an expansion of, rather than a limitation on, Congressional power and laid the groundwork for changing the default standard of judicial review from strict scrutiny to mere rationality.

2. The Slaughterhouse Cases, 83 U.S. 36 (1872)
--Rendered the Fourteenth Amendment Privileges or Immunities Clause a nullity and delayed the incorporation of the Bill of Rights to apply to the states and not just to the federal government.

3. Wickard v. Filburn, 317 U.S. 111 (1942)
--Rendered the Commerce Clause a nullity (or, worse, a monstrosity) and initiated the entire federal regulatory leviathan.

4. University of California Regents v. Bakke, 438 U.S. 265 (1978) and progeny, especially Grutter v. Bollinger, 539 U.S. 306 (2003)
--Rendered the Equal Protection Clause a nullity in the context of higher education by permitting reverse discrimination in college admissions in the name of creating "diverse" environments.

5. Kelo v. New London, No. 04-108 (2005)
--Rendered the "public use" clause of Fifth Amendment eminent domain a nullity.

6. Buckley v. Valeo, 424 U.S. 1 (1976) and progeny, especially McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
--Rendered the First Amendment less than absolute in the context of campaign advertising and financing.

7. Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)
--Reinforced the rendering of the First Amendment less than absolute in the context of truthful commercial advertising.

8. The Supreme Court's Entire Fourth Amendment Jurisprudence
--Almost every search-and-seizure case the Court hears results in a new exception to the Fourth Amendment. Exceptions become the rule, and the rule becomes the exception. The Fourth Amendment may not yet be a nullity, but it is essentially a "Swiss Cheese" amendment, since it is now so full of holes.

9. Korematsu v. U.S., 323 U.S. 214 (1944)
--Elevated the War Power of Congress and the Commander-in-Chief Power of the Executive above the Fifth Amendment Due Process Clause in the context of national security. Note that Korematsu is, technically, still good law; it was never expressly overturned. That is not to say that we are likely to bring back internment camps any time soon. On the other hand, given the current Administration's cavalier attitude toward civil liberties in a time of threats to national security (i.e., war), the legacy of Korematsu must not be forgotten. (See also this post.)

10. Baker v. Nelson, 409 U.S. 810 (1972)
--A non-case by the Court, technically a "dismissal for want of a substantial federal question." This non-ruling, issued shortly after Loving v. Virginia, 388 U.S. 1 (1967), is occasionally used, incorrectly, to assert that the Supreme Court has expressly held that there is no constitutional right to same-sex marriage. That is patently false; for details, see my previous post. This non-ruling has been rendered a nullity by other Supreme Court cases that have clarified and expanded upon Loving, especially Zablocki v. Redhail, 434 U.S. 374 (1978), but still gives anti-gay bigots a tool, albeit a blunt one, when attempting to confuse the issue.

Special Bonus Case:

11. Bush v. Gore, 531 U.S. 98 (2000)
--I include Bush v. Gore not because I believe it was incorrectly decided, but rather because in my view the Court should have declined, on political question grounds, to hear the case at all. Taking the case seriously damaged the Court's reputation, especially in the eyes of those who were upset that the Court prevented fraudulent Gore voters from stealing the election. Had the Court sidestepped the issue, the election would still have gone (correctly) to Bush, since the Florida legislature (or, if necessary, the House of Representatives) would have sided with Bush anyway. The Court should not have sullied itself by involving itself with that unfortunate incident.

Hat tip to Rossputin — but be sure to read my response to his view that the famous "Footnote 4" of U.S. v. Carolene Products, 304 U.S. 144 (1938) is the worst Supreme Court decision of all time.

Care to guess who said the following?

Warren-style judicial supremacy did not start with Marbury v. Madison, which was a decision of relatively limited reach. The prime example of pre-Warren judicial supremacy was Dred Scott v. Sanford, which the liberals don't like to talk about because it is so embarrassing. That's why they like to cite Marbury.

Of course, an alternative reason why "liberals" (like me?) don't cite to Dred Scott v. Sanford, 60 U.S. 393 (1857) is because it's no longer good law — it was, as most people know, explicitly overturned by the Thirteenth and Fourteenth Amendments.

Or perhaps "liberals" (like me?) prefer to cite to Marbury v. Madison, 5 U.S. 137 (1803), not only because it is (hopefully) still good law, but also because despite its (nominally) "limited reach" (it was a case about the writ of mandamus), it was the first Supreme Court case to reiterate (but not "invent") the already well-understood principle of judicial review. It was the first core statement in the new Republic of that aspect of the separation of powers, in a way that Dred Scott never was.

Incidentally, what was the "judicial supremacy" supposedly at work in Dred Scott?

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution.

Those words, the call for absolute deference by the judiciary to the wisdom and benevolence of the legislature, could just as easily have been lifted from the recent gay marriage defeats in New York or Washington, or from Bowers v. Hardwick, 478 U.S. 186 (1986) (overturned by Lawrence v. Texas, 539 U.S. 558 (2003)), or from just about anything written by Antonin Scalia: If it's broken, then don't fix it — leave it to the legislature whenever even remotely conceivable. No matter how unfair, unjust or outright obscene the current state of affairs may be or how unlikely a legislative remedy might actually be.

That somehow qualifies as "judicial supremacy"? Could a more preposterous assertion be made?

Stated differently, Dred Scott is not remembered because it was so terribly wrong as a question of constitutional law or "judicial activism," but rather because it was so terribly wrong as a simple question of morality and conscience.

And which is exactly how the bigot amendments will be remembered in the future. They're not wrong because they're fundamentally improper. They're wrong because they're fundamentally immoral.

The jurisprudential bigot logic of Dred Scott is exactly the same jurisprudential bigot logic of anti-gay mania today. And the one thing that a bigot has no right whatsoever to label this logic is "judicial supremacy."

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You want true examples of "judicial supremacy" in the Dred Scott era? You need look no further than McCulloch v. Maryland, 17 U.S. 316 (1819), which turned Article I upside down by rewriting the Necessary and Proper Clause into the "Unnecessary but Possible" Clause. Or how about the Slaughterhouse Cases, 83 U.S. 36 (1873), in which the Supreme Court simply erased an entire clause of the Fourteenth Amendment? Now that's "judicial activism" in the true (i.e., perverted) sense of the term. (More examples and discussion here.)

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Oh, I'm sorry — I never revealed who said it. Answer here. See also here.

"Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms. ... The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death."
--Washington v. Glucksberg, (O'Connor, J., concurring)

One of my favorite legal sayings, I forget where I first heard it, is that simply because Article I mentions only "Armies and a Navy," it does not follow that the Air Force is unconstitutional.

The question of how a document crafted at the end of the Eighteenth Century is to apply to a nation in the Nineteenth, then Twentieth, then Twenty-First Century (and, hopefully, more centuries to come) is a question even high school students confront, let alone lawyers and judges.

Which is why I should probably add Washington v. Glucksberg, 521 U.S. 702 (1997), to my list of the Worst Supreme Court Cases.

Glucksberg stands for the proposition that courts should not "create new rights." The test is learned by every law school student:

[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.

The "Glucksberg test" for whether a right is "fundamental" (and therefore subject to strict scrutiny protection against government abrogation) has, in practice, stopped the evolution of constitutional interpretation dead in its tracks. A right that is not "deeply rooted" (i.e., did not exist is 1789) cannot exist today. Even a right that could not have existed in 1789 (e.g., because the technologies or processes at issue did not exist in 1789) cannot exist today.

The pesky detail, meanwhile, that all individual rights are "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty" -- in the Ninth Amendment, the Privileges & Immunities Clauses of Article IV and the Fourteenth Amendment, and elsewhere -- is insolently ignored both by the Glucksberg opinion itself and the jurisprudence it has spawned. Case law is littered with opinions turning away challenges to oppressive or discriminatory laws with a brusque "fails Glucksberg" dismissal.

(One of the worst victims of Glucksberg has been gay rights -- which of course did not exist in 1789, so they of course can't exist today, right?)

Did I mention that Glucksberg was a (failed) right-to-die case? And that it has now metastasized into a (failed) right-to-live case?

In a ruling that will now be appealed to the Supreme Court, the D.C. Circuit Court on Tuesday refused to recognize a new constitutional right for dying patients to have access to experimental drugs not yet cleared by the government for general public use. The en banc, 8-2 decision exposed a deep rift within the Circuit Court on how to define a newly claimed constitutional right. The majority treated the issue as a narrow claim to a right to have access to experimental drugs not yet found to be safe, while the dissenters argued that nothing less than "a right to save one's life" was at stake.

In denying a "new" constitutional right for a competent consenting adult, who is going to die anyway, the ability to choose for herself whether to take a potentially life-saving drug, the majority cited to Glucksberg 23 times. The words "Ninth Amendment" appear nowhere.

Condemning at least some people to a premature death, or to unnecessary pain and suffering, is now apparently "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty."

In their quest to kill the Ninth Amendment, some jurists seem perfectly willing to kill people as well.

Madness. Sheer madness.

The case is Abigail Alliance v. Eschenbach, No. 04-5350 (D.C. Cir., August 7, 2007) (PDF - 65 pages). More thoughts at Cato@Liberty, Liberty Papers.

Kay Hymowitz requires almost 3,600 words to try to debunk describe libertarianism.

I can do it in three:

Freedom ... with responsibility.
Any and every attempt I've ever seen to "refute" libertarianism (including Hymowitz') inevitably relies -- directly or indirectly, explicitly or implicitly, innocently or disingenuously -- on omitting or wildly distorting the last two words.

It's quite simple really: Libertarianism is not anarchism.

Two quick examples from Hymowitz:

On the one hand, libertarians make a fetish of freedom; it is their totalizing goal [sic!]. On the other hand, libertarians depend on the family -- an institution that, in crucial respects, is unfree -- to produce the sort of people best suited to life in a free-market system (not to mention future members of their own movement). The complex, dynamic economy that libertarians have done so much to expand needs highly advanced human capital -- that is, individuals of great moral, cognitive and emotional sophistication. Reams of social-science research prove that these qualities are best produced in traditional families with married parents.

"Freedom" is not the "totalizing goal" of libertarians; "freedom ... with responsibility" is. I don't know a single libertarian who would, for example, suggest that a person has a right to bring a child into the world and then abandon, neglect or abuse that child. We may disagree on the precise definitions of "abandon," "neglect" or "abuse," but not on the applicability of the words themselves.

Meanwhile, the idea that a family is an "unfree institution" requires a totally upside-down definition of "unfree" (not to mention "institution"). People are "unfree" regarding the decision to get married in the first place? People are "unfree" to decide whether and when to have children? Of course not (thanks, let's recall, to "activist judges" subverting "the will of the majority" by "inventing" new rights). People -- parents -- are only "unfree" to violate their children's rights, in the same way and for the same reasons that they are "unfree" to violate their neighbors' rights. This is not a difficult concept.

[Incidentally, you know full well that in polite company Hymowitz would include the word "heterosexual" in the phrase "traditional families with married parents." Indeed, she already has.]

Second:

The civil-rights movement is an instructive case. ... [I]t is a perfect example of the inability of libertarians to find a political and moral framework suitable to the big questions of American public life. If people ought to be able to do what they want, then certainly hating blacks -- either by oneself or in the company of like-minded souls -- is nobody else's business, including the federal government's. To the extent that libertarians are remembered at all for their role in the civil-rights era, it is not for marching on Selma but rather for their enthusiastic support of states' rights and the freedom of white racists to associate with one another.

Flat-out incorrect, both as matters of history and of libertarian theory. Libertarians do not ever, under any circumstances, support "states' rights." States have no rights; only individuals have rights. States have powers -- powers that they can and do abuse. (This is, it bears repeating, precisely why Ron Paul, contrary to Hymowitz' uninformed pronouncement, is not a libertarian.)

As for the civil rights movement, it is true that asymptotic libertarianism would allow private individuals to run private businesses as they see fit, including with racist policies offensive to vast swaths of the population (and, therefore, the economy). However, asymptotic libertarianism would also demand that such racist business owners not collude with local governments to catalyze their racism via government coercion under the illegitimate trappings of "states rights" (as were omnipresent throughout the Jim Crow South). And, of course, asymptotic libertarians would themselves not be racist. The two "isms" are mutually exclusive: one simply cannot be a truly libertarian racist (or sexist or nationalist or heterosexist); it is a facial absurdity.

(Incidentally, the word "libertarian" as currently used and understood wasn't even in widespread use in the early 1960s; the big-L Libertarian Party wasn't founded until 1971. It's a bit silly to try to assign a "civil rights original sin" to a movement that hadn't even been founded yet. Stated differently, Strom Thurmond was no libertarian then and is no hero to libertarians today.)

Bottom line: Resorting to anti-libertarian solutions in order to correct anti-libertarian problems is hardly a legitimate data point against libertarianism. It would be akin to suggesting that using chemotherapy to treat cancer somehow "disproves" optometry.

(The rest of the Hymowitz piece is an overcooked stew of sweeping generalizations, red herrings, straw men, guilt-by-associations and flat-out historical inaccuracies. See how many you can find.)

If you listen to only one legal theory podcast in your entire life, then let it be this one:

Professor Richard Epstein of the University of Chicago and Stanford's Hoover Institute (currently visiting at NYU) ... is known as one of the most articulate and prolific academic defenders of libertarian or classical liberal approaches to the law. In this episode, he discusses one of his current projects, a volume to be published by Basic Books on the classical liberal history of the constitution.

From Slaughterhouse to Wickard to Kelo, Epstein holds no punches in describing just how insanely anti-liberty our Supreme Court jurisprudence has become and how both liberal and conservative jurists are betraying the rights-based principles of the Constitution. Incredible stuff.

Download and listen to it. Now.

"A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time."
--Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1933) (Sutherland, J., dissenting)

If this doesn't violate the Contracts Clause, then nothing ever does:

Warning that America is experiencing a "housing emergency," six Boston city councilors want to force lenders who foreclose on Hub properties to rent seized houses and apartments back to occupants.
...
The proposal would order lenders to lease foreclosed properties back to ex-owners or tenants at market rates until either third parties buy the homes or the measure expires in 2014. Violators would face fines of at least $10,000.
...
Ross said the measure aims to primarily help tenants who've paid rent on time but face eviction anyway because their landlords fell into foreclosure. However, the measure would also cover individual homeowners who fell behind on their own mortgages.

That was a trick observation, incidentally: It doesn't violate the Contracts Clause because, under current Supreme Court precedent, nothing ever does.

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There are two distinct issues here that need to be disentangled.

As a common law principle (individual jurisdictions may of course have their own nuances), renters are already insulated from any and all changes in title to the property they rent (with one huge exception — eminent domain). If I own a house and rent it to you, then (absent mutually agreed-to provisions to the contrary) your lease is binding on any future owners of the land during the period of the tenancy. Even if I sell the house, gift it, die — or default on my mortgage — the lease is the lease and you are protected by it while it remains in effect.

These activist legislators are, therefore, offering you a protection that you already have. Don't you feel "indebted" to them?

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I as the owner facing foreclosure, on the other hand, am screwed. As I should be, given that I'm a defaulter who failed to meet my voluntarily-entered-into obligations. Maybe I was the victim of circumstance, maybe I was reckless in my finances, maybe I was a predatory borrower. It doesn't really matter which. I defaulted on a debt, I breached a contract, my counterparty has both a legal and equitable remedy.

And, under the Constitution, there ought not be a damned thing either I or these hack politicians could do about it:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The Contracts Clause (Article I, Section 10, Clause 1) is one of the least appreciated libertarian aspects of the Constitution. The fact that it applies only to states and not the federal government is, one could plausibly argue, the single worst flaw in the original 1787 document.

But it is still there and still wholly applicable to this fact pattern. A mortgage is unarguably a "contract," the requirement to surrender to a valid foreclosure is unarguably an "obligation" and requiring lenders to lease to defaulters is unarguably an "impairment." Q.E.D.

Or not: Essentially the exact same law was enacted in Minnesota in 1933 and the same five Supreme Court Justices who would later finish off the last traces of economic liberty in America* also killed off economic substantive due process — and an entire clause of the Constitution as collateral damage — in the nightmarish case, Home Building & Loan Assn. v. Blaisdell.

The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile — a government which retains adequate authority to secure the peace and good order of society. This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.

In other words, a state's "police power" (a grant of power that appears only implicitly in the Tenth Amendment) can summarily trump the Contracts Clause (a limitation of power that appears explicitly in Article I), whenever "the peace and good order of society" require it (i.e., whenever activist legislators feel like it).

I'm surprised the Bush Administration never cited to Blaisdell in the War on Terror. The decision's twisted "police powers" reasoning makes John Yoo's memos seem like ACLU briefs.**

It is sad to have to repeat such a axiomatic statement, but it is precisely during emergencies that we need constitutional limitations on government power the most. It is precisely during emergencies that the more vague elements of constitutional law (e.g., "police power" or "executive authority") must yield to the less vague (e.g., "no impairment of contracts" or "no suspension of habeas corpus"). It is precisely when the government wants to act the most that it needs to be constrained the most.

(Incidentally, who but the most opportunistic malcontents would dare suggest that the current housing "crisis" rises to the level of the Great Depression — or the War on Terror? Note that the hack politicians in Boston were quite careful to label their proposal a "housing emergency" measure and to give it a specific expiration date — precisely as the Blaisdell court suggested was necessary to survive a Contracts Clause challenge. Someone on their staff certainly did their homework.)

If I were to expand my list of the Ten Worst Supreme Court Cases to twenty or even fifteen, Blaisdell would definitely make the cut.

More thoughts from Cato.

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*Via Nebbia v. New York, 291 U.S. 502 (1934), impliedly overturning Lochner v. New York, 198 U.S. 45 (1905).

**But, cf., this oft-quoted passage from Blaisdell:

Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.

How the Blaisdell majority gymnastically went from that to actually upholding the "no foreclosures" law remains one of the great embarrassments of Supreme Court jurisprudence.

The Perfect Substitute asks a modest question:

If you could institute one law (presumably in an attempt to fix the shortcomings of the current system), what would that one law be?

Of course, such a question enters the twilight zone between righteously indignant libertarian activism and Kip's Law. But since this is strictly a thought experiment (not to mention May Day), I'll chime in with four suggestions, in increasing order of personal desire:

4. Abolish all direct democracy. The federal Constitution makes no provision for it, and arguably forbids it at the state level as well. End our irrational, counterproductive fetish for majority oppression over the minority — disingenuously disguised as "the will of the people." Laws should come from lawmakers, not mobs.

3. Mandate inviolate fiscal federalism. Stay true to the principle that federal taxes pay only for federal public goods, state taxes pay only for state public goods and local taxes pay only for local goods. (We can quibble over what constitutes a legitimate "public good" some other time.) This would manifest most notably in the elimination of all block grants, pork projects and earmarks. It would foster more tax competition among states (as well as among subdivisions within a state) and would establish a beachhead for reiterating the notion that not everything is a proper function of government-writ-large in the first place.

2. Mandate strict scrutiny for all rights-infringing laws. Abolish the monstrosity of rational basis review and restore the presumption of liberty reflected in the Bill of Rights (especially the Ninth Amendment) and the Fourteenth Amendment. Restore their proper role as daunting obstacles to activist legislators. Note: If I could only have a subset of this concept, it would of course be to restore economic substance due process (i.e., freedom of contract).

And my number one suggestion for a single new law or doctrine:

1. Mandate sunset provisions on all government actions. If a legislature had to constantly re-enact its activist legislation every few years, then it would soon spend all its time doing just that, rather than finding new ways to control its people. Bad laws would not have to be repealed; they could just be allowed to expire. The need to re-enact laws would keep debate on the rationales underlying them constantly alive and vibrant (see, e.g., the assault weapons ban or the Bush tax cuts).

Since it was TPS' idea, fairness and equity would suggest leaving your suggestions there rather than here.