The Rule of Confusing Law

Exhibit A, in the case against our current ruling political philosophy, is this quote from Sen. Thomas Carper (D.-Del.): “I don’t expect to actually read the legislative language because reading the legislative language is among the more confusing things I’ve ever read in my life.”

Since our congressional masters won’t let us read the text of the bill in question before they pass it I guess we won’t be able to judge the relative reading comprehension of Senator Carper. But this isn’t the only congressman who says he can’t read the bills he votes on.

“I love these members, they get up and say, ‘Read the bill,’” said Rep. John Conyers. “What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?”
The Rule of Law

If those who write these bills can't understand them how are they to be enforced or implemented? How are they to be interpreted and by whom? How can the people be expected to obey them?

The principle of the Rule of Law is literally at stake here.

One, the laws should be very transparent and clearly worded so that all mature citizens would clearly understand what are strictly prohibited and the penalties associated with violating the laws. And two, the laws and prohibitions should be as few as possible. Both citizens and law enforcers can easily remember them and people can grow in freedom, in an environment of very few restrictions and prohibitions.

Rule of law can also be viewed as a general legal maxim according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application. This maxim is intended to be a safeguard against arbitrary governance. The word "arbitrary" (from the Latin "arbiter") signifies a judgment made at the discretion of the arbiter, rather than according to the rule of law.

Are we playing Russian Roulette with our legislation?
Carper described the type of language the actual text of the bill would finally be drafted in as "arcane," "confusing," "hard stuff to understand," and "incomprehensible." He likened it to the "gibberish" used in credit card disclosure forms.

It is the job of a Congressman or Senator is to understand and make laws. Any legislator who cannot understand that "gibberish" has no business holding the job.

Posted by Eric Simonson at October 2, 2009 8:02 PM
Comment #288845

Those who wrote the gibberish don’t deserve to hold their jobs let alone those who can’t read it. It’s the job of every Congressman and Senator to read and understand every bill that goes through their respective houses. IMHO I think any group of Reps. or Senators who write a bill that can’t be understood or letting the public read such bill should be scraped.

Posted by: KAP at October 2, 2009 8:55 PM
Comment #288855

KAP, in that case the only people who can represent up in the House and Senate are lawyers; they are the only ones who can understand the bills completely.

The bills are very long in order to be comprehensive. Otherwise there would be a lot of unanswered questions in the law that would have to be solved by the courts, and I know people on the right get really upset if the courts end up having to help define what laws actually mean.

In any case, most senators and representatives hire lawyers as part of their staff so that they are able to stay up to date on the implications of every bill that comes up. Hiring staff members also allows senators and congress people to be able to create and pass legislation in less than 72 hours, which is why the Bunning Amendment was silly. 100 staffers reading a 1000 page bill brings us to 10 pages a person; this is doable in an hour or two.

Posted by: Warped Reality at October 2, 2009 10:03 PM
Comment #288871

Warped Reality,
You beat me to it. This is a pretty naive article. Apparently the author does not realize that legislators delegate portions of bills to staffers. One person does not stay up late at night painstakingly crafting a thousand page bill using a ball point pen, never mind reading it by candlelight. And yes, laws are written in exacting language. Usually, the more exacting and detailed the language, the better the law.

A funny example of a poorly written law came recently when the Republicans wanted to prevent ACORN from receiving government funds. They passed a generally worded law: organizations which had employees who committed fraud would not be eligible for government funds. Sounds good, right?

Hilarity ensued.

At one time or another, most defense contractors have been caught in delicto flagrante with multi-million dollar frauds; therefore, according to that generally worded law, most defense contractors would become ineligible to receive taxpayer money. Whoops! Can’t have that! It’s one thing to go after an organization which registers poor people to vote, was one of the original organizations to protest predatory lending practices, and so on; the GOP is always down with opportunites to nail poor people, which I suppose would be more of a flagrante flagrante; but gore the defense contractors for corruption? Heavens no!!! Those are rich people!!!

Posted by: phx8 at October 3, 2009 12:31 AM
Comment #288873

This is an excellent topic, Eric. Thanks.

The House was intended to be populated by the people, elected from the people, by the people, for the people. With an Amendment, the same became true of the Senate. Congress was never intended to be the Lawyer’s House. You and I agree up to this point, perfectly.

Second, tax payers pay the salaries of Congressional staff WHO CAN and DO read the legislative bills and advise the Congress person they work for as to its content and consequences. So, just because a Congressperson does not them self read a bill, DOES NOT mean the Congress person does know what the bill contains, and what it contains is the important thing, not whether the Congress person read its contents personally.

If a Congress person is ill advised by their staff, then that is the responsibility of the Congressperson who hired or retained them. It happens, but, very not that frequently, that a Congress person votes the wrong way on a bill due to a misreading or bad counsel by their staff.

The real problem here is judgment, character, and education by Congress persons, and whether they have these qualities in good measure is the responsibility of the Party and voters and NO ONE else. To address the root of the issue you raise, one must ultimately address voter ignorance and dependence upon their Party for whom to vote for.

Yes, the voters were expected to elect intelligent and educated persons to lead them, but, that is the voter’s responsibility, not the elected leaders. The Parties lie to their constituents frequently by saying, The Party has done the research work for you, so just vote for our guy, and trust us that our pick is of good judgment, character, and education.

The Party of course, seeks those who will vote with the Party line or leadership, regardless of judgment, character, or education. Therefore, voters are often not well served in relying upon their Party’s recommendation for their votig decision.

This is all self-evident by the GOP losses in 2006 and 2008, partially as a result of a long history of corruption by its elected officials, their agents, and lack of moral or ethical character, and in some cases, chasmic lack of education and intelligence regarding decision making. And it is without doubt self-evident of some in the Democratic Party as well, with the likes of Blogojevich, Jefferson, Rangel, and others.

If people want better government, they must stop voting of inadequate representatives, especially inadequate incumbents. Disapproving of Congress while voting 90% and more of them back into office every election, is just plain illogical and dumb on the part of the voting public, as a whole.

Posted by: David R. Remer at October 3, 2009 2:03 AM
Comment #288874
“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” —James Madison.
Posted by: Rhinehold at October 3, 2009 2:05 AM
Comment #288877

Rhinehold, that is an excellent quote, and most appropriately stated in this context. While a more complex and diverse society will of necessity require more laws and enforcement than a simple society with vastly smaller numbers of people, there is no question our governments have legislated into areas they had no business in as evidenced by the simple fact of their inability to enforce such laws.

Of course, a lot of law is specialized for specialists practicing in highly specialized areas of human behavior like bond trading or rating or, working with toxic or hazardous substances posing a threat to the unknowing public. Such specialized laws for profit oriented business are necessary for public protection, provided they are enforceable. But, these laws are not onerous to the general public. They, are protective. ,The general public need not even be aware of them as the conduct of their lives do not venture into such hazardous areas of specialized behavior. The general public need only know the risk associated with the bonds they buy, not the legislation which governs the assurance that the public has access to this risk information. The public has a right to know the hazards associated with products they buy at their stores, but, are not unduly put upon by the volume or complexity of the laws governing such substance’s production, packaging, and distribution which, Madison speaks to as the public is not engaged in the production, packaging, and distribution of such hazardous materials.

Madison’s comment while relevant, is general for his time, and fails to take into account this need for specialization of law for a highly specialized society of human endeavors in which the general public at large does not engage in. One has to be careful quoting notables in history. While Galileo was brilliant and way ahead of his time, his theories were wholly incomplete by today’s standards in understanding the relationship between time and space. Madison was a brilliant man. But, his brilliance was confined to his time of a much more agrarian pre-industrialized and technological era in a nation of 1780 with a population of 2,780,400, as opposed to our current 330 million.

Such caveats in extrapolating from the 18th century to the present by quoting founding fathers must be highlighted to ensure accurate and logical extrapolation, which is useful for modern times, and which does not lead to unintended consequences for lack of understanding the contextual and historical differences.

Posted by: David R. Remer at October 3, 2009 2:58 AM
Comment #288889


I always thought the reasoning behind Madison’s quote was that if the laws are incomprehensible to the general public, then it becomes difficult or impossible for the electorate to properly evaluate their representatives and senators. That ties in with your VOID movement quite a bit.

Posted by: Warped Reality at October 3, 2009 1:47 PM
Comment #288914

Since the Law is written at a 5th Grade Readibg Level maybe the so-called “Learned” may want to rethink their political stance on the issue. For why I realize that the wording of Intent and Peghole maybe hard for some of the Educated to put their own spin on the Rules and Regulation. Having meet many of Americas’ Elected Officials Their Staff, and Their Lawyers that need the U.S. Code explained in “Plain English” (2nd Grade Reading Level) I suppose Educating Americas’ Democratic and Republican Civil, Political, and Religious Leaders is up to “We the People” now isn’t it?

Posted by: Henry Schlatman at October 4, 2009 7:58 AM
Comment #288967

Warped Reality, one can attempt to make that argument. But, Madison’s words more easily speak to the reality that people cannot abide laws they don’t know exist or understand, and enforcement of laws which a population does not understand or is not aware of, becomes morally and ethically dubious, at best. Hence the need for the People to be represented in the legislative process via a House of the people’s Representatives.

I don’t believe Madison was contemplating the electability of politicians as his primary intent for those quoted words. Since, Madison’s words appear in Federalist No. 62, and the papers from 37 through 84 primarily deal with the conformity of the proposed constitution to the true principles of republican government, which includes House of Representatives as giving voice to the people’s interests, one of which, is insuring that the laws, whose breach may be punished, are both comprehensible and knowable by the general public, thus permitting them the opportunity to avoid such enforcements and punishments.

Posted by: David R. Remer at October 6, 2009 9:47 AM
Comment #289175

As someone who worked for Congress for 12 years I find that people are being mostly unrealistic. First, bills presented in Congress must be written in very legalistic ways because if they eventually get passed and signed by the president they become actual laws. This means that they can be interpreted by lawyers and judges, and a major goal is to use language that prevents interpretations contrary to congressional intent. Second, if you actually read many bills you will repeatedly see that a large fraction of them result from trying to make connections to prior laws; as the nation has grown so has the body of our laws. Thus, there is a huge problem for staffers to dig into myriad details so that a new law neatly meshes with prior laws, otherwise huge problems will ensue. Another problem that has evolved over time is that Congress has moved from writing laws that focus on strategy and trust the executive branch for implementation to writing bills that are overly detailed and tactical because they have no confidence in faithful implementation by the president and executive agencies.

Finally, as cynical as I am I appreciate the fact that members of Congress simply do not have enough time to carefully read most bills and, therefore, they depend on their staff to prepare succinct summaries of bills and how they relate to a member’s past votes, etc. Why are they so time poor? Because they feel compelled to spend most of their time meeting with lobbyists and doing other things so that they keep getting campaign contributions to keep their position. The solution: Take nearly all private money out of the political system through a constitutional amendment, which will only happen through an Article V convention.

Posted by: Joel Hirschhorn at October 11, 2009 3:50 PM
Comment #289326

The bill committee has just passed to the Senate is far from complete. Now that it will come to the floor,changes and clarifications will abound. Its the final version that need reading and understanding. This premature sniveling by the Heritage Foundation shows their desperation. Their corporate masters stand to lose the ability to extort billions from Americans. Oh, Woe is me.

Posted by: bills at October 14, 2009 12:15 AM
Comment #289376

Don’t forget:

A proposal by Sen. Jim Bunning, R-Ky., that would have required the Senate Finance Committee to post the final language of the $900 billion health care reform bill, as well as a Congressional Budget Office cost analysis, on the committee’s website for 72 hours prior to a vote was rejected 12-11. Sen. Blanche Lincoln, D-Ark., was the only Democrat to side with Bunning. Sen. Claire McCaskill, D-MO, who is not a member of the Finance Committee, said she also supported Bunning’s proposal.

Chairman Max Baucus, D-Mont., himself admitted that “This probably sounds a little crazy to some people that we are voting on something before we have seen legislative language.” Indeed.

Baucus’ excuse - that it would take his committee staff two weeks to post the bill online – sounds a little crazy too. Finance Committee members are the only ones who vote based on the “plain English” version of a bill, not the legally-binding language.

“Senator Baucus, do we not deserve a few extra days of your time given that you and your fellow Democrats are setting out to completely overhaul our entire health care system funded with our tax dollars?” asked Grover Norquist, president of Americans for Tax Reform.

BTW, the most important (and very arguably unconstitutional) part of the plain english version of the bill is:

Beginning in 2013, all U.S. citizens and legal residents would be required to purchase coverage

It also, of course, eliminates any future HSAs, wouldn’t want competition for the government plans or an alternative that would actually work in lowering healthcare costs…

Posted by: Rhinehold at October 15, 2009 1:24 AM
Comment #289640

Many of the elected representatives within the Democratic Party are no longer following in the time-honored footsteps laid down by the founding fathers of our great Nation. More importantly, we as democrats see our elected representatives within the Democratic Party abandoning the values and principles as set forth within the Declaration of Independence and the Constitution of the United States.

Overall, this is only the beginning of our problems as Democrats. The current Democratic Party leadership is corrupted and full of Socialists, and they are gaining evermore control over the members of the Democratic Party, or Nation, and the American people. At the very least, many of them no longer think of themselves as being our elected representatives, and now refer to themselves as leaders of Socialism in the true form of tyrants.

Most Democrats already know their pleas are only being answered by repeated insult and injury by their elected representatives within the Democratic Party. Despite this, we as Democrats can restore control of the Democratic Party back to the party members. All we need to do is cut off donations to the local, state, and national headquarters of the Democratic Party, and to make sure the donations are made directly to patriotic and honorable Democratic Party candidates that are not corrupt and/or Socialist.

So spread the message to everyone of our fellow Democrats, for the Democrat members are taking back control of the Democratic Party. Also, please don’t forget to contact and request the Unions and other outside contributors to follow our lead as patriotic Americans.

Thank you, and God Bless America.


Posted by: Eric Pearson at October 23, 2009 1:40 PM
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