Wikipedia:Reference desk/Archives/Miscellaneous/2017 September 25

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September 25

Anti-tampering device for laws

You've probably heard of anti-tampering devices for high explosives, which make it detonate if someone tries to defuse it. My question is, can there be a similar (legal) device for laws, to prevent certain parts from being amended? For example, a clause which states that if a certain part of the law is amended in a certain way, the whole law thereby becomes null and void -- would that be possible? 2601:646:8E01:7E0B:EDA1:6DA2:2F4C:8E0A (talk) 08:31, 25 September 2017 (UTC)

Human laws are made by humans through various political processes: any law-making body which had the authority to make a law with such a clause in it would necessarily possess the power to undo it at a later date. You could argue that there are such clauses in the laws of nature, or in divine laws - but there is no way to do that in human law. Wymspen (talk) 11:15, 25 September 2017 (UTC)

How about preventing certain parts of the law from being amended only during deliberations, before the law is passed (or not)? 2601:646:8E01:7E0B:EDA1:6DA2:2F4C:8E0A (talk) 11:57, 25 September 2017 (UTC)

• See Parliamentary sovereignty, which is sometimes stated that "Parliament can make no law that binds any future Parliament". Every law can be undone. Even in countries like the United States, which a clearer, explicit separation of powers, there are procedures for changing literally every law, even those written into the United States Constitution (see Article Five of the United States Constitution). All laws can be changed at any time for any reason, given sufficient political will. There is nothing which is not possible, for any given definition of "possible". No provisions that prevent future changes to any law are strictly binding, such provisions are only subject to the will of future political bodies to abiding by them. --Jayron32 12:00, 25 September 2017 (UTC)

However, you might be interested to read up on Super stare decisis.--Shantavira|^{feed me} 12:05, 25 September 2017 (UTC)

(edit conflict)But it takes a certain amount of effort to change a ring - fenced provision. Members of Parliament are proactive - if a potential mischief becomes apparent in the course of a debate they will legislate to deal with it. If it found that legislation is not working as intended one of the available options when amending legislation is being discussed is to simply repeal it. A very strong option is to insert a sunset clause. Some laws can be amended by Statutory Instrument, which bypasses the normal procedure, but this can only be done if the original law (the "enabling legislation") permits it. Another method is to state that a law can only come into force upon the happening of a specified event. For example, the Easter Act 1928 can only be activated if the churches agree its provisions. This is not going to happen.

It's commonplace, when the law is thought to be one thing and judges decide otherwise, that amending legislation is passed to nullify the decision and return the law to what it was believed to be. 92.8.220.234 (talk) 12:16, 25 September 2017 (UTC)

I don't disagree with anything Jayron32 said but the best example would probably be those countries with Eternity clauses (which doesn't include the US). There is also the wider issue of Entrenched clauses, however that also covers clauses which simply make it more difficult, including cases like NZ where such clauses may exist, but as our article states it's generally accepted that the parliamentary sovereignty means that parliament could simply repeal the legislation that entrenches certain provisions. Nil Einne (talk) 13:29, 25 September 2017 (UTC)

BTW, the 2009 Honduran constitutional crisis is probably one famous example of the consequences of such matters, although as our article sort of states, one issue there is the actually provisions for what how to handle the situation where a president seemed to violate these articles didn't seem to be well laid out. There are cases like Article 4 of the Constitution of Turkey which not only forbid amending certain provisions, but forbid proposing or suggesting to amend them. I seem to recall there was a case where this came up but can't seem to find it. Nil Einne (talk) 13:48, 25 September 2017 (UTC)

The US Constitution has a provision or two which are forbidden to be amended, but otherwise it's pretty much fair game for amending. ←Baseball Bugs ^{What's up, Doc?} carrots→ 16:21, 25 September 2017 (UTC)

In the UK, we have Sovereignty of Parliament (specifically Parliamentary sovereignty in the United Kingdom), so apart from that principle, nothing is immutable. Alansplodge (talk) 16:39, 25 September 2017 (UTC)

Can you describe which provisions of the US constitution can't be amended? Our entrenches clause article linked above doesn't really seem to suggest there is such a thing. It mentions that the doctrine of separation of powers "is entrenched in the Constitution by a vesting clause" in the first 3 articles, but while our articles don't say this directly, it doesn't sound like this means it's forbidden to amend the parts which establish this principle. It also says that Article V of the US Constititution prevents certain provisions from being amended but only until 1808 which is long since passed. It also says that article 5 "has been intepreted to require unanimous ratification of any amendment altering the composition of the United States Senate", but not that amendments that deal with the area are completely forbidden. (The specific wording is

no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Nil Einne (talk) 09:58, 26 September 2017 (UTC)

That's the one. ←Baseball Bugs ^{What's up, Doc?} carrots→ 12:22, 26 September 2017 (UTC)

You can't make it impossible, but you can make it more difficult:

A) Under contract law, see severability.

B) Constitutionality means that only laws permitted by the Constitution (and it's Amendments) may be enforced. Typically, the Constitution is designed to be more difficult to modify than regular laws, such as requiring a supermajority. For example, the US Amendment creating the Prohibition of alcohol just said what will be illegal, it didn't set penalties. That was done by enabling legislation, which was then easier to modify than the Amendment. So, effectively, they said "You can change the penalty for X, but you can't make it legal" with a normal law. But there is a flaw there, that if the penalty is low enough, and enforcement unfunded, it's as if it was legal.

C) Michigan lawmakers have an interesting trick to subvert the will of the people. All laws passed by the legislature are Constitutionally liable to be overturned by proposals submitted to the general population, unless those laws include fund allocations. Therefore, the legislators just tack on some absurd tiny fund allocation, to every unpopular bill they pass, to make it bullet-proof.

D) The more common problem of an X-Y linkage is not that both are passed, and then the Y part repealed, but rather that X is passed with the promise of Y, but Y never happens. For example, the promise that if Obamacare is repealed, a better medical care system that serves everyone for free at no cost to anyone will then be passed (this one is, of course, impossible). Or that if a trade treaty is put into place which will ship all manufacturing jobs to China, that those employees who lose their jobs will be compensated accordingly (possible, but expensive). The way to prevent this situation is to vote down any version of X which does not include Y right along with it. StuRat (talk) 16:49, 25 September 2017 (UTC)

Those of you who went to Sunday School will remember Daniel, who was thrown into a den of lions when he had a run-in with King Darius. Darius was a nice chap really, but had to go ahead with the throwing-to-the-lions thing because "the law of the Medes and Persians is, That no decree nor statute which the king establisheth may be changed". [1] It seems a rather flawed system to me. Alansplodge (talk) 17:17, 25 September 2017 (UTC)

• There is, of course, the American Articles of Confederation which preceded the Constitution. It required a unanimous vote of the 13 Colonies to be amended: "[T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."

When the much more centralized Constitution was drafted, they simply ignored the text of the Articles of Confederation, and added a clause that the new Constitution would take effect once 2/3 of the states had passed it, which indeed happened without any historically significant dissent--all 13 States did eventually ratify the new document. μηδείς (talk) 20:38, 25 September 2017 (UTC)

[un-indent] This is all very fascinating information, but I have a rather more specific question: I am currently working on a draft bill to protect freedom of expression on the internet, and my problem is that one provision I have to include (one dealing with the definition of protected free speech and the exceptions from it) could, if amended in certain ways (in fact, simply by tacking on two or three more clauses to that section), completely undo the very purpose of the legislation. So, I'm looking for ways to prevent or at least hinder amending that particular clause (without necessarily doing the same for the rest of the bill, although if I could, that would be great!) 2601:646:8E01:7E0B:3805:A6E1:1618:EEB8 (talk) 06:22, 26 September 2017 (UTC)

I suspect the best you can do is make it tamper evident. That is, state explicitly in the bill description that modifying those sections will completely undermine the spirit and meaning of the bill. If you could get whoever introduces the bill to state for the record that he will withdraw the bill (if allowed) if that modification is made, or at least withdraw his support, that would help, too.

It sounds like you are already aware that if politicians are opposed to popular measure X, one way to get their way is to actually pass an extremely weak bill, supposedly supporting X. They can then oppose any future strong bills supporting X, arguing that we already have a bill that supports X. Yet another way to subvert the will of the majority and instead support whatever special interest is lining their pockets. StuRat (talk) 10:27, 26 September 2017 (UTC)

A perceived problem with the European Union was that there was no way out. That is why Article 50 was drafted. There doesn't seem to be any way out of the European Monetary Union either (apart from being ejected for failure to obey the rules). People who are on companies' mailing lists sometimes find the only way they can get off is to annoy them in some way (they then get blacklisted and offers cease).

Isn't legislation in America (apart from the usual channels) instituted by a citizen drawing up a proposal and then submitting it to a referendum? Then I would imagine it would have to be formally adopted by some legislature, and the members could do whatever they wanted to it. 92.8.220.234 (talk) 12:00, 26 September 2017 (UTC)

Only in some states, and then only for state laws. See Initiatives and referendums in the United States. Most laws, at the state and especially at the Federal level, are written by corportations for the purpose of maximizing their profits lobbyists. They get those laws passed by bribery campaign donations. --Jayron32 17:34, 26 September 2017 (UTC)

See my item C above for one way Michigan gets around this requirement. There are others, like getting it thrown out because "the language is unclear", or because a tiny portion of the signatures are found to be invalid. They also know to only toss them out the last day that proposals can be accepted, so that there is no time to fix the proposal and resubmit. If all else fails, a sympathetic clerk, or one in need of cash, can be convinced to misfile the proposal. StuRat (talk) 17:55, 26 September 2017 (UTC)

That was the exact case in my Father's town. An illegal bill was passed hiring for new positions and raising the pay of the sitting town governors when they had not yet passed a legally mandated budget, that by state law, had to be passed as the first item of business as the new session began in January, before any other bill. The town took up a petition to mandate a referendum, and on the last day referenda could be filed, the town clerk disqualified the petition as having 100 invalid signatures. μηδείς (talk) 02:46, 27 September 2017 (UTC)

[un-indent] Thanks, all! I guess that other than getting the bill's sponsor in Congress to withdraw the bill if it gets weakened in certain ways (which is hard but possible, with the new wave of public accountability sweeping the House, though not so much the Senate so far), my best bet would be to make the clauses in question into entrenched provisions. Which begs the question: How does one do that in a federal bill? 2601:646:8E01:7E0B:3805:A6E1:1618:EEB8 (talk) 11:54, 27 September 2017 (UTC)

The problem with laws is that they are just words, no different from prayers in essences; they express wishes, but don't enforce themselves. Laws are even worse, since they are the work of committees, and you have to pass them to find out what is in them. μηδείς (talk) 18:25, 27 September 2017 (UTC)

Bill Veeck once said that when a governing body passes a rule, the first thing they do is try to figure out ways around it. He was talking about MLB owners, but it could apply anywhere. ←Baseball Bugs ^{What's up, Doc?} carrots→ 18:56, 27 September 2017 (UTC)

That certainly seemed to be the case when Prohibition passed in the US. StuRat (talk) 19:41, 27 September 2017 (UTC)

We even got a mobster sent as a diplomat to the Court of St. James, a president, an attorney general, a failed invasion, a war in SE Asia, two assassinations and a girl drowned in a Senator's back seat out of that amendment, just to mention a few things. μηδείς (talk) 02:03, 28 September 2017 (UTC)

Astonishingly, nothing in our article supports the mobster story.DOR (HK) (talk) 04:15, 30 September 2017 (UTC)

But John F. Kennedy assassination conspiracy theories#Organized crime conspiracy does. Alansplodge (talk) 16:19, 30 September 2017 (UTC)