Symbolic Legislation to Nowhere: Why Statehouses Fail in Governance

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With proposals such as mandated ultrasounds for abortion seekers and bans on Sharia law, state legislatures avoid actual governance in favor of dead-end ideas.

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Virginia's attempt to intrude (literally and figuratively) upon the privacy of its pregnant women would be bad enough if it were merely a rare example of state lawmakers unhinging proposed legislation from law, science, and sense. Unfortunately, however, such official recklessness has become a national trend. All over the country, and especially since the 2010 election that swept Tea Party candidates into office, local lawmakers have spent a great deal of time and effort promoting measures they either don't fully understand or can't reasonably believe are constitutional.

Here's how The Washington Post explained how and why Virginia's anti-abortion measure got as far as it did before enough grown-ups began to pay attention:

Confusion over the legislation and ultrasounds -- and considerable national media attention -- preceded the unraveling of the bill. The original measure stated, simply, that a woman needed an ultrasound before an abortion. Many lawmakers did not understand that at the young fetal age abortions usually occur, the invasive vaginal ultrasound would be needed to establish gestational age, as required by the bill.

The fact that these lawmakers evidently didn't understand what their law would mean to women, and what it would require of doctors, didn't stop the legislators from pushing forward with the measure anyway. Ignorance of the law may be no legal defense to you and me, but ignorance of the law among those who are passing the law surely is the definition of bad governance. For the politicians now scrambling away from Virginia's measure, however, pleading ignorance perhaps is easier today than confessing the truth, which is that the pols who supported the measure probably didn't care in the first place if its mandated procedures offended women. That was the whole point, wasn't it?

At a minimum, the barely-averted disaster in the commonwealth raises questions about whether the same intellectual disconnect is happening in New Hampshire, where the Republican-dominated legislature is pressing ahead with anti-abortion measures over the objections of medical experts. Or in Iowa, where a GOP lawmaker recently introduced a bill that would ban abortions and generate potential life sentences in prison for doctors who perform what the law calls "feticide." Or in Nebraska, where legislators are considering a bill that would create a legal defense -- justifiable homicide, it's called -- for the murder of a doctor who intends to harm a fetus.

It's not just the divisive issue of abortion that has generated legislation divorced from reality. According to Bill Raftery, who smartly tracks such trends at the Gavel to Gavel site of the National Center for State Courts, 22 states have legislation pending now that would ban the use of Sharia law or international law in their state courts. Never mind that there is no discernible proof that state or federal judges are suddenly swooning over sharia law, or that there is some vast judicial conspiracy afoot to supersede constitutional doctrine with foreign principles. It's enough that the proposed legislation merely suggests that this is so.

Most of these newer anti-sharia measures do not explicitly use the word "sharia law" -- a lesson lawmakers seem to have learned from the thumping Oklahoma's voter-approved Sharia law ban has received so far from the federal courts that have reviewed it. Such stylistic alterations likely won't matter. The Bill of Rights and the Constitution -- which were themselves based upon English common law and other international norms -- forbids the government from discriminating in this fashion. Did I say discrimination? In Iowa, a measure now before the state senate would imprison any judge (on a Class 4 Felony) who employs international law in a decision.

Indeed, the past 16 months have seen persistent and pernicious efforts by state lawmakers to undermine the independence of the judiciary. I have written about this topic before as it relates to New Hampshire. But it's rampant all over. In Arizona, lawmakers angry about a state court's redistricting decision are trying to punish the state's judicial system by dramatically reducing the number of appellate judges from 22 to six. Meanwhile, in Maryland, Florida, Minnesota, and Tennessee, to name just a few states, conservative legislators are seeking to strengthen rules that would allow "commissions" to remove judges from office for unpopular decisions. Kansas has even managed a quinella, combining anti-judicial sentiment with the "birther" movement, by pushing a measure that would require judges to prove their citizenship.

At a time of great economic turmoil and pain, while Americans have clamored for jobs and financial security, how many thousands of official hours have our state legislators spent since the 2010 election on bills that purport to solve problems that don't exist (like a Sharia-led takeover of American law) or which cannot exist in conformity with criminal law (like a state law which protects those who kill abortion providers) or which contravene individual constitutional rights (like laws that are aimed at religious minorities)? These legislative Jeremiads, frivolous even in the best of times, seem downright obscene today.

America, sadly, has grown accustomed to "symbolic" legislation which is designed not to advance the public good, or even to become sustainable law, but rather to appease particular interest groups. The campaign promise becomes the pending measure; the donor's crusade becomes the subject of public hearings. And what is squeezed out of the legislative process as a result of such pandering is the more moderate legislation, the more practical measures, which do stand a chance of passing constitutional muster and which do solve real problems in sensible ways. That's no way to run a country -- or even a state.

When public outrage forced them into a choice this week between appearing stupid about the ultrasound law or appearing venal toward it, Virginia's Republican lawmakers, and the Commonwealth's governor, chose to act stupid. It's a choice that zealous lawmakers all over the country would be forced to make if their own senseless, unlawful legislation ever made it to the Supreme Court. But chances are those bills never will. Instead, America's pet legislation will continue to whistle to all the political dogs out there while wasting everyone else's time and money.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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