Responding to the Time-Based Failures of the Criminal Law Through a Criminal Sunset Amendment

Abstract

The libertarian genius of the drafters of the U.S. Constitution recognized that liberty is defended best when it is difficult to pass a law. They therefore split power vertically and horizontally—between the states and the federal government, and among the executive, legislative, and judicial branches—and barred some laws from being passed at all. The obstructive mechanisms intended to defend liberty, however, also stymie attempts to restore liberty. This Article proposes a constitutional amendment that would redress that oversight by creating a twenty-five-year limit on the effect of all criminal legislation. It would force regular legislative , oversight of the criminal codes. It would redistribute power among the branches by reducing the courts' incentives to create new conceptions of substantive due process to redress perceived process failures. And it would reset the checks and balances for each generation in favor of liberty. This Article is intended to provoke a renewed discussion of the issues of generational entrenchment, overcriminalization, and the structural bases that result in what Professor William Stuntz has called "the pathological politics of the criminal law."