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Article 6 of the U.S. Constitution requires that every U.S. Senator and Representative, as well as all members of state legislatures, take an oath, or affirm, to uphold the Constitution. Legislators must abide by the basic principles embodied in the Constitution and Bill of Rights when making laws. The only way to change these principles is through amendments to the Constitution. Yet in an increasing number of cases, contends Michael A. Bamberger, our legislators are knowingly abdicating their constitutional responsibility. Considerations of the constitutionality of legislation are often neglected in favor of what is politically expedient and popular, leaving it to the courts to determine the legality of their actions. Bamberger argues that legislators have a duty to consider constitutionality and not "pass the buck" to the judiciary regardless of political pressures or even well meaning intentions to achieve desirable policy objectives.
Reckless Legislation examines several salient cases of legislators circumventing constitutionality. The examples include regulation of the Internet by Congress and two state legislatures; reliance by legislatures in Minnesota, Indiana, and Tennessee on "experts" to justify passage of unconstitutional laws; repeated passage of unconstitutional laws in New York and Missouri relating, respectively, to religion and abortion; as well as the efforts by members of Congress to reverse Supreme Court decisions they deem faulty or harmful.
Bamberger urges legislators to avoid the political motives that lead to "reckless legislation" and recommends that they "make full use of the full panoply of available support services . . . for a better and deeper knowledge of the issues raised."