- A slate of new state laws is encouraging private citizens to sue each other.
- Constitutional law experts told Insider the result could be a society of vigilante surveillance.
- The laws could also undermine the supremacy of the Constitution and the US legal system.
A new slate of laws is popping up that law enforcement agencies won’t be upholding. Instead, private citizens, like your neighbor or your coworker, would be the enforcer.
A law passed in Texas last year banned all abortions during the first six weeks of pregnancy. As the means of enforcement, the bill encourages private citizens to sue abortion providers — or anyone who assists in an abortion — and get awarded at least $10,000 if they win.
In California, Gov. Gavin Newsom announced plans for a bill that allows people to sue makers and sellers of assault weapons or ghost gun kits, though the legislation has not yet been introduced. In Florida, a bill pushed by Gov. Ron DeSantis that would allow parents to sue schools that teach critical race theory is moving along in the state Senate. A separate bill that would allow parents to sue schools over discussions of LGBTQ topics has advanced in the Florida House.
And, unless the Supreme Court puts an end to the vigilantism trend, more could be on the way.
Three constitutional law experts told Insider the bills pose a serious threat to the basic rule of law and risk turning American communities into places where you’re constantly looking over your shoulder.
A ‘gimmick’ to get around abiding by the Constitution
In the case of the Texas law, the experts said the abortion ban was indisputably unconstitutional under the precedent set by Roe v. Wade, which is the reason Texas came up with the unprecedented enforcement mechanism: to evade the Constitution.
“It’s clear not only that this is unconstitutional, but that it was designed specifically to override the general framework of challenging unconstitutional law,” Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider.
Kalir explained that the Supreme Court has the power to block states or other government actors from enforcing unconstitutional laws. So, lawmakers in Texas thought, “What if we don’t let any state actors enforce the law?”
Instead of relying on police officers and government prosecutors, Texas enabled private citizens to handle enforcement.
The “gimmick,” as Kalir put it, worked, as the Supreme Court allowed the law to remain in place for now even though it outlaws a constitutionally protected right. He called the law a “breathtaking act of defiance of the Constitution” and the Supreme Court’s precedent.
“This is a question about the future of the nature of the legal system in this country and the supremacy of the US Constitution, if it is indeed the supreme law of the land, as it declares itself to be,” he said.
A surveillance state of vigilantes will likely worsen partisan divides
The Texas law’s enforcement mechanism, which has been mimicked by other states, risks turning the US into a vigilante state.
Jon D. Michaels, a professor of law at the University of California, Los Angeles, told Insider the laws are “creating this world in which people are surveying one another” and “trying to play gotcha with one another.”
“It’s one thing for the state to tell you to behave, it’s another for your neighbor to tell you,” he said, adding they would create a hierarchy within communities.
Michaels sees a troubling trend that suggests vigilantism itself is being promoted and is not just a side effect of a legal loophole. Prior to the highly controversial Texas bill, laws in Tennessee and Florida allowed parents to sue schools over transgender students’ access to bathrooms and sports teams, with similar bills proposed elsewhere.
The proposed California bill, for instance, does not necessarily limit a constitutionally protected right. The court has not ruled specifically on assault weapons or ghost guns, which are banned in some jurisdictions in the US, Jake Charles, executive director of the Center for Firearms Law at Duke University, wrote in the Los Angeles Times.
Still, Michaels said these laws, regardless of their politics or whether they block constitutional rights, are “just bad policy.” Even though community enforcement of laws may seem on the surface to be democratic, he said the result is “likely going to be very tribal instead, where powerful groups within communities are going to be able to enforce the norms as they see fit.”
The vigilante laws could also contribute further to polarization and are primed to “stoke the culture wars,” Michaels said.
Kalir said it’s possible the Supreme Court did not fully realize what kind of society the Texas law and others like it could create. It’s a society, he said, in which you could be at the supermarket and telling a friend you drove someone else to get an abortion, and if someone simply overhears you could be sued.
“This would be a country where you would not be able to look your coworker in the eyes, your neighbor in the eyes, or anyone in your society because they might be your prosecutor tomorrow,” he said.
As one state does, others will likely follow
The Texas law, and the Supreme Court declining to block it, is already producing a ripple effect, as evidenced by Newsom’s proposal in California and the Florida bills. And if the citizen-enforcement mechanism can be used to deny protected rights, as is evidently the case in the Texas law, then other fundamental rights could be targeted.
“If we allow that for one right to be trampled on in this fashion, how can we be sure that tomorrow people will not cancel same-sex marriage and the right to carry arms and so on and so forth,” Kalir said.
If more states follow suit, this could result in a situation where the US is made up of 50 discrete legal regimes, exactly the kind of situation the Constitution is intended to prevent, Kalir said.
He added that in a way he is thankful to Newsom and DeSantis, as their proposed bills should demonstrate plainly to the Supreme Court the snowballing effect of their response to the Texas law.
Ultimately, the court could still block the Texas bill, especially as the other laws pressure the court to rule consistently, rather than appear to favor one constitutional right over another, David B. Cruz, the Newton Professor of Constitutional Law at the University of Southern California, told Insider.
But given the court’s actions so far, he said there is some concern that they would do exactly that.
“Our norm and our aspiration is that the judges will enforce the law, including the law of the Constitution, even-handedly,” he said. “But the willingness of this current, very conservative-dominated court to let states flout clear precedence about what protections the Constitution extends isn’t encouraging.”
In the Supreme Court’s latest action on the Texas law, Justice Sonia Sotomayor blasted the majority’s handling of the case thus far, calling it “a disaster for the rule of law and a grave disservice to women in Texas.” Cruz noted she took the unusual step of ending her opinion without saying she “respectfully” dissented, suggesting she is deeply troubled by their decisions.
Michaels agreed that the Supreme Court is most likely to address the citizen-enforcement mechanism if “blue states go wild with it” by targeting protected rights that some liberals particularly hate, like some campaign finance laws or gun rights.
Newsom himself said in an op-ed for The Washington Post that his law could expose the court as “hypocritical.”
But Michaels said the immediate impact of the vigilante laws, even if they don’t ultimately hold up in court, may not be worth the cost: “I’m not sure proving a point about the Supreme Court being partisan is worth the social turmoil that might be gendered in the process.”
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