I’m not sure if anything like this has ever happened, but I got to wondering if any jurisdiction has any sort of policy for dealing with laws that are passed under questionable circumstances.
Examples– #1. A bill is coming up before a legislative body, and nobody is quite sure whether it will pass. Somebody kidnaps a relative of a swing legislator and says, “Vote the way we want, or your relative dies.” As a result of that person’s vote, the bill passes, and is signed into law. The facts are not known at the time, but become known later.
#2. The swing legislator is under the influence of some prescription medicine that impairs judgment and critical thinking. He later claims that he never would have voted for the bill if he had been thinking clearly.
#3. The critical vote is cast as a result of old-fashioned bribery, which becomes known afterwards.
An argument could be made that a vote that is made under duress or cloudy thinking, etc., is fatally flawed and should not count. Are there any policies or guidelines, either legal or political, that deal with such issues?
In the rules of legislatures that I’m aware of, there are generally restrictions on changing one’s vote, especially if changing the vote would alter the outcome. You can think of this as a defense against someone voting one way, then being threatened or bribed into changing the vote, claiming earlier duress. You can also think of parallels to the public voting: nobody gets to take back their vote for Obama because they were drunk in the polling booth.
But I’m not aware of how the judiciary treats such matters.
There’s not often a mechanism for altering legislative votes ex post facto. Instead, it’s assumed that what a legislative body can pass, it can revoke. The legislator in question would need to make the case that he was in some means under duress or incapacitated and bring a bill up that repeals the law in question.
Quite right. There’s also the mechanism of judicial oversight. If a group of legislators get caught up in a wave of temporary insanity and pass something stupid which runs contrary to the constitution, the judiciary can strike down the law when common sense kicks back in.
Fletcher v. Peck (1810) establishes a principle that you can’t retroactively make a law non-existent. Even if a law was enacted illegally, you have to accept the consequences that arose from the law.
The situation was the Georgian state legislature had enacted a law to sell off a large sections of public land for very low prices. The reason they did this was because land speculators had bribed the majority of the legislators. The public was outraged and voted the bribed legislators out of office in the next election. The new legislators not only repealed the land sale act, they also said that all the land sales that had resulted from the act were voided. It was basically an attempt to make it as if the law had never been enacted.
The issue eventually came before the Supreme Court and the Court overruled the Georgian law voiding the sales. The Court said that the sales had been legal contracts under the law that existed at the time of the sale - even if the law itself had been illegally enacted - and a subsequent legislature couldn’t go back and make the sales illegal.
But they strike it down because it’s contrary to the constitution. Given that, the circumstances in which the measure was passed are irrelevant.
Conversely, if drunken or insane legislators pass a measure which is not unconstitutional, can the courts strike it down on the grounds that they were drunken or insane? Depends on the constitutional arrangements of the country concerned, I suppose, but I suspect that in the US it would be unlikely - separation of powers, and all that. The legislature is responsible for itself; it’s not controlled by the courts.
I didn’t really think that most places would have a specific mechanism or policy. It’s just one of those things that I get to wondering about sometimes.