Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment
University of North Carolina (UNC) at Chapel Hill - School of Law
Boston College Law Review, Forthcoming
UNC Legal Studies Research Paper No. 1109260
The libertarian genius of the drafters of the United States Constitution was in separation of powers. They recognized that liberty is best defended when it is difficult to pass a law, and they split power vertically and horizontally, within the federal government, between the states and the federal government, between the executive, legislative and judicial branches, and they barred some laws from being passed at all. But they missed a dimension: Time. The same obstructive genius intended to defend liberty stymies attempts to restore liberty. This article proposes a constitutional amendment that would redress that oversight, and create a 25-year limit on the effect of all criminal legislation. By so doing, it would permit each generation to choose for itself the behavior it believes worthy of condemnation. It will force regular legislative oversight of the status of the criminal code in each of the several states and the nation. And it will reset the checks and balances each generation in favor of liberty. Additionally, it will redistribute power between the branches by reducing the incentives under the current system to turn to the courts to create new conceptions of substantive due process to redress perceived process failures. This article is intended to provoke a renewed discussion of the issues of generational entrenchment, overcriminalization, and the structural bases that result in what Professor William Stuntz has called the pathological politics of the criminal law. It explores some of the potential objections, in hopes that this article will trigger a conversation among the various commentators on the criminal law regarding the missing temporal dimension of the law.
Number of Pages in PDF File: 50Accepted Paper Series
Date posted: March 20, 2008
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