Every current and proposed statute should be proven safe and effective, or be void. Safe and effective is at the core of due process. So a law imposing the death penalty for witchcraft violates Fifth Amendment Due Process.
First, prove a harm from a crime, either physical, economic, or permanently emotional. Merely upsetting acts are protected by the First Amendment. Peeing in the street would be harmful, in generating cleanup costs, spreading disease, etc. Private prostitution produces mutual benefit, pleasure and earning. If the person objects to forced prostitution, that is covered by kidnapping and enslavement laws. Consent should remain a defense.
Second, prove that criminal sanctions reduce the rate and the cost of harm to a greater extent than the cost of enforcement, and apply the least restrictive sanction. If a torts approach can be shown to work, enable that in the statute. So if speeding must end, does a police car in the bushes reduce the average speed on the road, or does a speed camera, generating emailed fines to all speeders reduce the average speed? Prove that a reduction in the average speed results in a benefit, such as fewer accidents. Prove that the value of the accidents prevented exceeds that of the enforcement camera and that of the total of the fines collected.
Third, test each law, its enforcement methods, and unintended consequences in small jurisdictions. They apply to a state. If still effective and beneficial, then make the law federal or mandatory in every state by the usual constitutional methods.
Lastly, set out the dose-response curve. If a remedy is too small or weak, it does not work. If it is excessive, it becomes toxic. For example, I would boycott the shops on the road with the automatic speeding tickets. We want to find out that bankrupting effect when tried at the county level, and not after the remedy is national.
2 years ago