From abortion to guns to critical race theory, new laws encourage private citizens to sue each other, but the result could lead to chaos and legal vigilantes

There are new laws that law enforcement agencies will not be upheld. Private citizens would be the enforcer.

Texas passed a law last year that banned abortions during the first six weeks of a pregnant woman's life. The bill encourages private citizens to file lawsuits against abortion providers or anyone who helps in an abortion if they win.

Legislation that would allow people to sue makers and sellers of assault weapons or ghost gun kits has not yet been introduced. A bill that would allow parents to file lawsuits against schools that teach critical race theory is moving through the state Senate. The Florida House has advanced a bill that would allow parents to file lawsuits over discussions of the LGBTQ community.

More could be on the way if the Supreme Court doesn't end the trend of vigilantism.

Three constitutional law experts told Insider that the bills pose a serious threat to the basic rule of law and could turn American communities into places where you are constantly looking over your shoulder.

A 'gimmick' to get around abiding by the Constitution

The experts said the abortion ban was unconstitutional under the precedent set by Wade, which is why Texas came up with the unprecedented enforcement mechanism.

Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider that it is clear that this is unconstitutional and that it was designed to ignore the general framework of challenging unconstitutional law.

Kalir said that the Supreme Court has the power to stop states from implementing unconstitutional laws. Lawmakers in Texas wondered what would happen if state actors were not allowed to enforce the law.

Private citizens were allowed to handle enforcement in Texas.

The Supreme Court allowed the law to remain in place even though it outlaws a constitutionally protected right, as Kalir put it. The law was called a "breathtaking act of defiance of the Constitution" by him.

This is a question about the future of the legal system in this country and the supremacy of the US Constitution, if it is indeed the supreme law of the land.

Abortion rights activists rally at the Texas State Capitol against SB 8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, on September 11, 2021 in Austin, Texas.
Abortion rights activists rally at the Texas State Capitol against SB 8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, on September 11, 2021 in Austin, Texas.
Jordan Vonderhaar/Getty Images

A surveillance state of vigilantes will likely worsen partisan divides

The enforcement mechanism of the Texas law could lead to the US becoming a self-destructive state.

Jon D. Michaels, a professor of law at the University of California, Los Angeles, told Insider that the laws are creating a world in which people are trying to play gotcha with one another.

He said that it was one thing for the state to tell you to behave, but another for your neighbor to tell you.

Michaels sees a troubling trend that suggests vigilantism is being promoted and is not just a side effect of a legal loophole. Prior to the Texas bill, there were laws in Tennessee and Florida that allowed parents to file lawsuits over access to the bathroom for their children.

The proposed California bill doesn't limit a constitutionally protected right. Jake Charles, executive director of the Center for Firearms Law at Duke University, wrote in the Los Angeles Times that the court has not ruled on assault weapons or ghost guns.

Even though community enforcement of laws may seem on the surface to be democratic, Michaels said the result is likely going to be very tribal.

Michaels said that the laws could contribute further to the culture wars.

The Supreme Court may not have realized what kind of society the Texas law could create. He said it was a society in which you could be at the supermarket and tell a friend you drove someone else to get an abortion, and if someone overhears you, you could be sued.

He said that this would be a country where you wouldn't be able to look your coworker in the eye, your neighbor in the eye, or anyone in your society because they might be your prosecutor tomorrow.

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 the proposal in California and the Florida bills. If the citizen-enforcement mechanism can be used to deny protected rights, then other fundamental rights could be targeted.

Kalir said that if we allow that for one right to be trampled on in this way, how can we be sure that tomorrow people will not cancel same-sex marriage and the right to carry arms.

CRT school board meeting
Opponents of an academic doctrine known as "critical race theory" attend a packed Loudoun County, Virginia school board meeting.
Evelyn Hockstein/Reuters

If more states follow suit, this could lead to a situation where the US is made up of 50 separate legal regimes, exactly the kind of situation the Constitution is intended to prevent, Kalir said.

The Supreme Court should see the snowballing effect of their response to the Texas law if the proposed bills are approved.

David B. Cruz, the Professor of Constitutional Law at the University of Southern California, told Insider that the court could still block the Texas bill as other laws pressure the court to rule consistently, rather than favoring one constitutional right over another.

He said that there is some concern that the court would do that.

The judges will enforce the law, evenhandedly, according to the norm and aspiration.

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.

If blue states go crazy with the citizen-enforcement mechanism, the Supreme Court is most likely to address it by targeting rights that some liberals hate, like campaign finance laws or gun rights.

In an op-ed for The Washington Post, he said that his law could expose the court as Hypocritical.

Even if the laws don't hold up in court, they may not be worth the cost.

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