I’ve discovered a new hobby, albeit one that sometimes causes me more grief than pleasure. I like to examine any controversial subject and whittle it down to it’s most fundamental underpinnings, then ask some basic questions. It’s amazing what you can dig up when you do that. Below is just one of those. I dared ask myself what I would do if I could change just one thing in the U.S. Constitution.
Many of us spend a lot of time trying to figure out ways to “get back to it,” or “protecting it,” but not often do we consider changing any of its fundamentals. Yet some of our most revered rights were just that–amendments to the original document. I had to go no further than Article to find my prize. I did this by asking a question that most would consider heresy.
It seems to me that far too many controversial issues of the day nearly always center around a single question: How do we legislate properly, or more specifically, which laws should be enacted and in what form. I contend first of all, that we can’t do this function properly. The nature of laws have embedded ambiguity sufficient enough to allow unintended consequences at best and corrupt, hidden agendas at worst. If that’s not obvious, consider the endless debates of the meaning of qualifying clauses in our 2nd and 14th amendments.
Let’s examine the definition of the word legislate.
make or enact laws.
Pretty simple, right? At the federal level, our Constitution limits this responsibility to the U.S. Congress. The government website visitthecapitol.gov, summarizes the entirety of the U.S. Congress’s responsibilities as defined by the constitution as follows:
Article I—the longest article of the Constitution—describes congressional powers. Congress has the power to:
- Make laws
- Declare war
- Raise and provide public money and oversee its proper expenditure
- Impeach and try federal officers
- Approve presidential appointments
- Approve treaties negotiated by the executive branch
- Oversight and investigations
Being the radical I’m known to be, I’m going to propose an amendment to the Constitution that eliminates the first in the list above (limited to laws of criminality only). I’ll call this a thought experiment because it would be impossible to accomplish. I’d love to tweak the others on the list, but for now, I want to focus on this one. We’ve been passing new laws for over 240 years. I would like to hear a good argument why we can’t abolish the making of new laws. My amendment would grant only a single exception–laws to repeal previously passed laws.
Many have said that each of us breaks the law every day, either knowingly or unknowingly. This is a reasonable statement is because no one can give an accurate account about how many laws we have–even if we limit it to federal laws. In a typical year, Congress passes 125 new laws. Between 2000 and 2007, Congress created 452 new crimes, bringing the total number of federal crimes to over 4,000. And this number pales in comparison to the number of rules established by federal agencies which have the effect of law because if you break them you will be faced with civil or criminal prosecution. There aren’t enough floating bits in your calculators to count that number. Did you check all those to make sure something you’ve been doing isn’t now illegal? Yeah, neither did I. I’ll just keep my fingers crossed. Maybe we should put this on our checklist every April as we prepare our tax returns–kind of like remembering to change the batteries in your smoke alarm when we switch to and from daylight saving time (yet another stupid law).
I can anticipate a plethora of responses, nearly all of which would focus on the notion that we need to be able to make laws in order to address things which have not been addressed previously. Think about that for a minute. After this long, do we really need new ways to figure out what people can do wrong and then in our arrogance figure out ways to either stop them from doing it or punishing them for it? And I’m not talking about the small fraction of time we’ve been a constitutional republic. I’m referring to our historical understanding of the entirety of the human race.
It’s also important to understand the purposes of laws of criminality. There is a distinction between stopping bad behavior and punishing bad behavior. One can make a good argument that enacting laws along with the punishment for violating them is a deterrent. Of this I have little doubt, but they are never 100 percent effective in that way. No one can know what the true percentage is. Because we live in a civil society, it’s safe to assume that most people do not behave properly because of ethical or moral beliefs, not because we would do otherwise if the laws did not exist. Therefore, we know the laws exist to protect us from a minority of the population. Unfortunately, there are many who believe we can legislate morality. This is why congress is under constant pressure to make new ones, because previous laws did not succeed in that endeavor.
A good example of this is the debate about gun control. No matter how many laws we pass, we simply cannot stop people from using guns in a bad way. And ironically, because this is true, many feel the need to relax gun laws to allow those who are not bad actors to protect us from those who are. And no one in their right mind believes we could actually confiscate all firearms. That is fantasy thinking at best. Yet, there will always be pressure on Congress to pass new laws for further gun control. There are plenty of other examples of laws from which we could analyze.
Unfortunately, because nature abhors a vacuum and due to those in power who are given the responsibility of legislating, Congress will continue to pass new laws. It is simply assumed they will do it. It is most often why we vote for them. I understand that some legislation is not only there to address criminality. For example, those in congress often vote on budgetary items, but that falls under number three in the list. This is not lawmaking of the criminal variety, unless we consider the forces of corruption involved in that sort (this is why I’d like to tweak items two through seven on the list). Again, my amendment would be limited to laws regarding criminality and punishment.
Anyhow, this is just another in a long list of things where I believe we fall into the trap of asking the wrong questions. Instead of asking which laws we should pass, should we not at least challenge the built in assumption that we need them at all.