Our governments make laws.\u00a0\u00a0It is a core function; making rules for how our society works.\u00a0\u00a0My city of Pataskala just raised the speed limit on a Mink Street from 35 MPH to 45MPH (it\u2019s about time).\u00a0\u00a0The ordinance was passed, and the signs will be changed. Our local police department will enforce the new limits, just like they enforced the old ones.<\/p>\n\n\n\n
Some laws, like the higher speed limit, are common sense.\u00a0\u00a0There\u2019s only a couple of houses in the area, otherwise it\u2019s a \u201ccountry road\u201d.\u00a0\u00a0\u00a0Others are more politically contentious. Ohio just passed a law allowing any citizen (not under felony restriction) to carry a concealed weapon.\u00a0\u00a0No license, no classes: head to the gun store (or Vance Outdoors) and plunk down your cash. Once you pass the instant background check, you’re \u201cpacking\u201d a gun.\u00a0\u00a0And if you do something illegal with that gun, the police and the courts will enforce those laws.<\/p>\n\n\n\n
But there is a new legislative trend in the United States, that deals with some of the most fractious issues of our times.\u00a0\u00a0The legislature passes a law, just like every other that regulates our behavior.\u00a0\u00a0But rather than the government enforcing the law through police or civil fines, the enforcement is \u201coutsourced\u201d.\u00a0\u00a0Instead of making violation a misdemeanor or felony, punishable by community control or fines or prison; these laws put the \u201cviolator\u201d at risk for civil suit for any other citizen.\u00a0\u00a0<\/p>\n\n\n\n
So instead of facing a court to dispense criminal justice; some other citizen, who might not have any direct relation to what you did, is empowered to sue. An action violates the law; it is prima facie evidence of \u201cguilt\u201d.\u00a0\u00a0The penalty is to lose the suit and pay \u201ccompensation\u201d in the form of civil penalty and court fees; a cash amount, to the winner.<\/p>\n\n\n\n
In this way the \u201cstate\u201d, can pass a law and not be responsible for enforcing it.\u00a0\u00a0\u00a0The other \u201ccitizens\u201d of the state, and even of other states, become the \u201cenforcers\u201d and the civil courts become the venue for dispensing punishment.\u00a0\u00a0<\/p>\n\n\n\n
Frankly, most of the laws using this novel concept of enforcement are coming from the conservative right.\u00a0\u00a0The most familiar: the Texas law limiting abortions to six weeks, and the new Florida law banning any discussion of gender issues in primary classes.\u00a0\u00a0But there are proposals in California to ban assault weapons using the same enforcement process, so it\u2019s not all \u201cone side\u201d or the other.\u00a0\u00a0<\/p>\n\n\n\n
Today\u2019s essay isn’t about the \u201cDon\u2019t Say Gay\u201d law or why assault weapons should be banned.\u00a0\u00a0It\u2019s the process of enforcing these laws that gives me serious concerns.<\/p>\n\n\n\n
This concept creates a whole new level of vigilantism. It’s a governing state like the Soviet Union of old, when neighbors spied on their neighbors to find failures to live up to Communist ideals. And it begs for \u201corganizations\u201d to come in and profit by becoming the \u201cenforcement agency\u201d. Private businesses with the bankroll to file multiple suits, can sue and collect the \u201cfees\u201d from transgressors.\u00a0\u00a0<\/p>\n\n\n\n
It\u2019s kind of like the companies that contract for red light camera enforcement. They put up the cameras, they watch the videos, they send the tickets out and they take their cut of the fines. But at least the tickets still went through the regular traffic court process, where drivers could dispute them.<\/p>\n\n\n\n
In these \u201coutsourced\u201d laws, the government essentially washes their hands of the matter.\u00a0\u00a0It becomes an issue for the civil courts, like a property dispute in the neighborhood.<\/p>\n\n\n\n
Some of the attraction for \u201ccivilian enforcement\u201d is that it is more difficult for the Federal Courts to rule on their Constitutionality.\u00a0\u00a0\u00a0When \u201cthe government\u201d enforces a law that violates a Constitutional right, there is a direct cause of action in the Federal Courts.\u00a0\u00a0For example, when Ohio passed a \u201cheartbeat bill\u201d restricting abortions to before a fetal heartbeat could be detected, the Federal Courts immediately prevented enforcement.\u00a0\u00a0But these \u201coutsourced\u201d laws are more difficult to bring to the Federal bar, since the state government is not involved in\u00a0\u00a0\u201cenforcement\u201d.<\/p>\n\n\n\n
There are other similar situations in the law today.\u00a0\u00a0There is a group out of Wisconsin, the \u201cFreedom from Religion Foundation\u201d, that acts as an \u201cenforcer\u201d towards public schools that cross the First Amendment \u201creligious line\u201d.\u00a0\u00a0A typical case, is one where the school allows the Ten Commandments to be displayed in the lobby of the high school, or where school authorities lead a prayer before graduation.\u00a0\u00a0But there are a couple of critical differences between these \u201cenforcement\u201d activities, and \u201coutsourced\u201d laws.<\/p>\n\n\n\n
First of all, the \u201cFreedom from Religion Foundation\u201d has to have a \u201cclient\u201d with the legal standing to sue in that particular school district.\u00a0\u00a0And, rather than sue for money, these suits are usually for \u201cspecific performance\u201d: the school takes down the display or skips the prayer before the ceremony.\u00a0\u00a0<\/p>\n\n\n\n
But the \u201coutsourced\u201d laws give EVERYONE standing to file suit.\u00a0\u00a0A woman has an abortion after six weeks in Texas, everyone in the country has the \u201cright\u201d to sue.\u00a0\u00a0A second grade teacher tries to explain why Bobby has a Mommy and Daddy, and Johnny has a Mommy and Mommy, and we all have \u201cstanding\u201d in Florida court.\u00a0\u00a0<\/p>\n\n\n\n
It creates an \u201cunlimited class\u201d of folks with standing to sue, and a slam-dunk case to win. It becomes \u201cprofitable\u201d to become these \u201claw enforcers\u201d. <\/p>\n\n\n\n
It\u2019s not what the American legal system is about.\u00a0\u00a0Pitting citizen against citizen to do the job that the legislature is afraid to do (or to avoid Federal oversight) is just wrong.\u00a0\u00a0It really doesn\u2019t matter what issue were discussing, or which side you take.\u00a0\u00a0If Florida really believes it should keep the teacher from talking to primary kids about \u201cgender\u201d, then the Florida legislature and Governor should enforce it themselves.\u00a0\u00a0The same with Texas and abortions, and California and assault weapons.<\/p>\n\n\n\n
We pass the buck enough.<\/p>\n","protected":false},"excerpt":{"rendered":"