Individual Liberty — Individual Responsibility 

Understanding the law

“Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”
— James Wilson, Of the Study of the Law in the United States, 1790

I’ve wanted to write about this for a long time but approaching the subject isn’t exactly easy. I’m not a lawyer and I have no legal training, so don’t take anything I write here as legal advice – because it isn’t. Having said that, I think that it’s a fair bet that most of the people in this country aren’t lawyers nor do they have legal training.

Laws are meant to govern human behavior. As I understand it all laws restrict choices and actions – either they prohibit certain behaviors or they compel certain behaviors. For a person that believes in individual liberty the fewer laws there are restricting our choices the better off we are. Still, the fact remains that in a world with many people laws are necessary to prevent us from harming one another in the pursuit of our own goals.

“[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community.”
— Benjamin Rush, letter to David Ramsay, 1788

We are told that “ignorance of the law is no excuse” when violations of the law are prosecuted. To me this means that a given law applies to everyone – whether they are aware of that law or not. This implies that it is the individual’s responsibility to know what the law is in order to obey it. It is my contention that in our nation today that is simply an impossible task.

To begin with I’ll ask this simple question – who makes the laws? Well by definition the making of laws is the act of legislation…

Main Entry: leg·is·la·tion
Pronunciation: "le-j&s-'lA-sh&n
Function: noun
1 : the making or giving of laws; specifically : the exercise of the power and function of making rules that have the force of authority by virtue of their promulgation by an official organ of the state
2 : the enactments of a legislator or legislative body
3 : a matter of business for or under consideration by a legislative body legislation>

Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.

In our federal government this power the legislative power is given to Congress under Article 1, section 1, of the United States Constitution.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

I haven’t read them all, but it is my understanding that just about all of our state constitutions also vest the legislative power in a state legislature. For example, the constitution of the state of Washington has this to say about the legislative power.

The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.

Now if laws enacted by the legislatures or popular initiative were the only laws we had to be aware of and understand we would almost be able to do so. I say this for two reasons – first the legislature despite being the body with constitutional authority to make law is not the only body that does so, and second the legislature crafts tremendously convoluted legislation and as we’ve seen lately quite voluminous legislation as well. Try if you will to understand this from the failed “Comprehensive Immigration Reform Act of 2007”…

• a) In General- Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1732) is amended--
  • (1) by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security';
  • (2) in the heading, by striking `entry and exit documents' and inserting `travel and entry documents and evidence of status';
  • (3) in subsection (b)(1)--
    • (A) by striking `Not later than October 26, 2004, the' and inserting `The'; and
    • (B) by striking `visas and' both places it appears and inserting `visas, evidence of status, and';
  • (4) by redesignating subsection (d) as subsection (e); and
  • (5) by inserting after subsection (c) the following:
    • (d) Other Documents- Not later than October 26, 2008, every document, other than an interim document, issued by the Secretary of Homeland Security, which may be used as evidence of an alien's status as an immigrant, nonimmigrant, parolee, asylee, or refugee, shall be machine-readable and tamper-resistant, and shall incorporate a biometric identifier to allow the Secretary of Homeland Security to verify electronically the identity and status of the alien.'.

Understand, that this was before the Senate two and three quarter years ago. That piece of attempted legislation only amounted to 790 pages after printing. Today our Congress contemplates bills nearly three times as voluminous.  To really understand all of this, you’ve got to not only be able to read the bills themselves, but also to have a copy of the laws that are being amended and the ability to apply the amendments to them to finally see what they will actually say once everything has passed. The founders must be spinning in their graves.

“In planning, forming, and arranging laws, deliberation is always becoming, and always useful.”
— James Wilson, Lectures on Law, 1791

I noted just a little bit ago that despite the fact that the Constitution vests the power to make law in the Congress, that that is not the only governmental body in the United States that does so. Some time back I remarked about the roles that various government bodies are supposed to play and I was shocked to read the comment that it was the legitimate role of the courts to make the law. At the time I thought this to be erroneous – but I have since learned that lawyers and judges believe this to be true as well. Even some of the most respected judges from the conservative point of view believe this to be true.

“This is the image of the law—the common law—to which an aspiring American lawyer is first exposed, even if he has not read Holmes over the previous summer as he was supposed to. He learns the law, not by reading statutes that promulgate it or treatises that summarize it, but rather by studying the judicial opinions that invented it.”
—Antonin Scalia – A Matter of Interpretation : Federal Courts and The Law, 1997.

The common law tradition is older even than the statutory law tradition. It’s also one that isn’t law for the common man, despite the name, and it is constantly evolving.

“[Y]ou must appreciate that the common law is not really common law, except insofar as judges can be regarded as common. That is to say, it is not “customary law,” or a reflection of the people’s practices, but it is rather law developed by the judges.”
—Antonin Scalia – A Matter of Interpretation : Federal Courts and The Law, 1997.
(emphasis added)

I will say one more thing about this before I close for now. The common law has a rather strange place in our system of government. The Constitution forbids the enactment of any “ex post facto” law and yet that is often exactly what common law is.

“No Bill of Attainder or ex post facto Law shall be passed.”
— United States Constitution, Article 1, Section 9, Paragraph 3

No State shall … pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
— United States Constitution, Article 1, Section 10, Paragraph 1

“Judge-made law is ex post facto law, and therefore unjust. An act is not forbidden by the statute law, but it becomes void by judicial construction. The legislature could not effect this, for the Constitution forbids it. The judiciary shall not usurp legislative power, says the Bill of Rights: yet it not only usurps, but runs riot beyond the confines of legislative power.”
— Robert Rantoul, Scituate Massachusetts, July 4 1836,  quoted by Antonin Scalia in A Matter of Interpretation : Federal Courts and The Law, 1997.

I’d like to keep on writing about this, and about the incredibly massive volume of regulations promulgated by the federal bureaucracy which have the force of law, but I think I’ll stop here for now.  I’ll pick this up again soon.