Here's another installment of rationality quotes. The usual rules apply:
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There would have to be a two sided test. A tort of ineffectiveness by which the plaintiff seeks relief from a law that fails to achieve the goals laid out for it. A tort of under-ambition by which the plaintiff seeks relief from a law that is immune from the tort of ineffectiveness because the formally specified goals are feeble.
Think about the American experience with courts voiding laws that are unconstitutional. This often ends up with the courts applying balancing tests. It can end up with the court ruling that yes, the law infringes your rights, but only a little. And the law serves a valid purpose, which is very important. So the law is allowed to stand.
These kinds of cases are decided in prospect. The decision is reached on the speculation about the actual effects of the law. It might help if constitutional challenges to legislation could be re-litigated, perhaps after the first ten years. The second hearing could then be decided retrospectively, looking back at ten years experience, and balancing the actual burden on the plaintiffs rights against the actual public benefit of the law.
Where though is the goal post? In practice it moves. In the prospective hearing the government will make grand promises about the huge benefits the law will bring. In the retrospective hearing the government will sail on the opposite tack, arguing that only very modest benefits suffice to justify the law.
It would be good it the goal posts are fixed. Right from the start the law states the goals against which it will be assessed in ten years time. Certainly there needs to be a tort of ineffectiveness, active against laws that do not meet their goals. But politicians would soon learn to game the system by writing very modest goals into law. That needs to be blocked with a tort of under-ambition which ensures that the initial constitutionality of the law is judged only admitting in prospect those benefits that can be litigated in retrospect.
The goal posts should definitely be fixed! And maybe some politicians would want to pass a law that benefits him and his friends in some way, even though it only has a small effect, so there ought to be some kind of safeguard against that, too. But the main problem I can see is anti-synergy. Suppose a law is adopted that totally would have worked, were it not for some other law that was introduced a little later? Should the first one be repealed, or the second one? But maybe the second one does accomplish its goal, and repealing the first one would have ne... (read more)