In countries like the USA and Australia which have constitutions, there is the concept of a law being constitutional or not. There's probably a similar system in the UK, despite their lack of a written constitution, but I'm not personally familiar with it. In circumstances such as these, the body of lawmakers will sometimes enact a law which is later challenged on constitutional grounds, and the case will usually be taken to the appropriate Supreme Court. That court will be the final arbiter of whether or not the law is in fact compatible with the constitution, and thus allowable as a law.

The good old USA has a strong recent history of its lawmakers attempting to frame unconstitutional laws. A well-publicised example was a thing called the Communications Decency Act (CDA), which was ruled unconstitutional by the US Supreme Court in June of 1997. The Child Online Protection Act (COPA), which is functionally similar, was then passed in October of 1998. The constitutionality of this law was also challenged on the same basic grounds as the CDA. As I understand it, the Third Circuit Court of Appeals has ruled it unconstitutional (in June 2000), and the government is appealing to the Supreme Court for that ruling to be reversed (Ashcroft v. ACLU).

If, as seems entirely possible, COPA is ruled unconstitutional for similar reasons to its predecessor, can we expect the US government to try again? They appear to be taking the approach that they should be able to ram something of dubious constitutionality into the lawbooks if they try often enough. This strikes me as despicable: lawmakers in countries like these are supposed to uphold their constitution, not wilfully push its limits. If the constitution in question needs changing then the lawmakers should propose the necessary changes rather than attempting to make unconstitutional laws. But what's to keep them on the straight and narrow in this sense? Not a lot, it seems.

Fortunately, I have a cunning plan.

Politicians that repeatedly propose and vote in favour of laws which are later deemed to be unconstitutional demonstrate themselves to be unfit for office. We should therefore keep track of who framed the various laws, and who voted for and against them. If a law is later deemed to be unconstitutional, this should count as a demerit against the persons responsible for framing the unconstitutional part, and also to some extent against those who voted for it. This would necessitate the keeping of precise records as to how each member voted on each issue, but that sounds like a good idea to me in and of itself, and would be easily facilitated by simple technological devices.

If a politician accumulated a sufficient number of demerit points, he or she should be expelled from public office for life, having demonstrated an inability to uphold the oath of office. The exact measure of these demerit points is a matter for discussion; my only suggestion is that the threat of expulsion be real enough to keep the bastards honest, as we sometimes say here in Australia. Lawmakers should be making an effort to keep laws constitutional, not trying to enact unconstitutional ones.

Perhaps with that particular threat hanging over them, they might treat their duty towards the constitution with the serious respect it deserves.