The Case for Secession-Lawmaking (part two)
In this edition of “The Case for Secession”, we will consider Hendrickson's two other characteristics of legitimate law; clarity of command and conformity to established procedures of notice. The clarity of the command has come to the forefront over the few last years as we consider the sheer volume of the bills being passed and the utter incomprehensibility of the language they contain. A few months ago, responding to the criticism that the congressmen themselves don’t read the bills they vote on, representative Conyors stated that unless he had two days to read the thousands of pages and two lawyers to tell him what the pages said, there was no point in reading it! Yet these bills that the majority of congressmen find incomprehensible are the bills that become, or will become, the law of the land and in so doing, assume our unquestioned obedience on pain of fine or imprisonment. Yet, can we be expected to conform to a law whose understanding is beyond even the lawmakers who impose it?
Simple clarity is essential for legitimate legislative exercise. The whole point of lawmaking is for the lawmaking body, exercising its legitimate delegated authority, to inform those to whom a law will be applied exactly what is expected of them and how others will react to any given set of behaviors. A legitimate law must be specific in scope and application and it should be clearly understood by the average person in the society to whom it applies. A law that can only be applied with the assistance of an interpreter: i.e. government bureaucrat, or understood by those to whom it applies only with the assistance of a translator, be it a lawyer, accountant or other “professional”, is illegitimate. Not only does such a law violate the principles of delegation detailed in the previous edition, it has created a situation where we have devolved into a nation ruled by men rather than law.
Consider the tax code, the poster child for incomprehensible Federal regulation. It is readily admitted by those whose job it is to implement this abomination that even they do not understand it. Its application, therefore, is dependent upon the individual government bureaucrat to whom the citizen is subject. Any time the law is unclear, that bureaucrat needs to rely on other information, correct or not, in order to make a decision. He may consider stereotypical prejudices, political affiliation, whether or not he “feels” the citizen deserves a break or whether he is behind in appointments and needs to hurry it along when he makes a decision that could financially ruin an individual or even put them in prison. A government official like the treasury secretary or a congressman may be allowed to slide on some major infraction while you or I will be nailed to the wall for the tiniest indiscretion. Such a system makes us all potential lawbreakers based on the subjective criteria of the ruling class as opposed to the objective criteria of the law. Law and regulation, instead of fulfilling its stated function of providing order to society becomes a weapon in the hands of those in power to suppress dissent.
In addition to a multitude of faceless government bureaucrats interpreting the intricacies of the law passed by our legislators, the majority of us have also bought into the idea that such interpretations should be left to the courts. We have come to believe that the judges are there to interpret and clarify the various products of the legislate process. This is not what the judicial branch was designed to do. Judges are responsible to see that the law is fairly and properly enforced. It is their job to implement the law as it is, not to interpret what the law might or should say according to their own whims of understanding. This is “legislating from the bench”, a practice so properly derided by “conservatives” but one apparently made necessary by the cowardly activities of our legislators.
The major problem that has led to these actions so destructive to our republic is the fact that the federal government has gotten its hands into so many diverse areas, areas it was never meant to be involved in and for which our system of government is ill designed to handle. Before the progressives placed their hands on the wheel of our ship, legislators involved themselves in a few specific areas. They understood their job was to protect the rights of the citizenry and involved themselves with laws that ensured a fair and just society. Into that mix were thrown issues related to foreign and monetary policy and a few other specifically constitutional areas. The majority of legislators understood the issues and most of them were still citizen lawmakers who appreciated the impact of their work on the average American.
Today, things are very different. Our legislators are career government workers who rarely have an understanding of the impact of their work on us, particularly since they exempt themselves from the vast majority of the laws they pass. And, of course, those they are not exempt from, they feel safe in ignoring for the prosecution of those in power is a rare event indeed. The issues they involve themselves in are diverse and many. They pass laws concerning health, science and the environment, business, the manufacturing process and products, the food we eat, our property utilization....the fact is there are really no areas the federal government does not feel it has the right to regulate. Our legislators, because they are not scientists, physicians, economists or business people are ill equipped to pass laws in these, or most other, areas. We are now well aware of the fact that our legislators are not writing these thousand plus page bills. They are put together by leftist special interest groups and unions to achieve the Marxist ideals of the most radical members of our society, people who now populate the executive branch. The only purpose our esteemed congressmen and women have in this scheme is the horsetrading necessary to ensure passage. They modify here and change the language there to make it acceptable to the majority of their members and fool enough Americans so its passage and implementation are assured. Those that are not persuaded by the language can always be bribed with earmarks. A few hundred million here, a billion there, and the next thing you know the fence sitters become enthusiastic supporters. These snakes use our tax dollars to push through agendas that take even more of our money and freedom. Its like forcing a condemned man to buy his own rope!
If we move even beyond the legislative process, consider the myriad of regulations put out by our plethora of federal agencies. Again, the fact that these agencies pass regulations in violation of the principles of delegation has already been explained. Consider now the fact that these agencies crank out tens of thousands of pages of regulations that affect the most minute aspects of our lives. This will bring us to the final area of consideration, conformity to established procedures of notice. There is the old saying that “ignorance of the law is no excuse” but that is only true where proper and legitimate law exists. If we are ignorant of a law passed in secret, or tucked away in some bill as an ambiguous amendment, or buried in the tens of thousands of pages in the Federal Register, it is a perfect and legitimate excuse. Can we be held accountable for a law whose meaning, authority or even existence is a mystery to us? If I discipline my children for breaking a house rule I neither informed them of or clarified, or apply inconsistently, do they not have the right to object? Of course they do! As citizens, our rights are no different.
“A legitimate state will institute, and scrupulously abide by, explicit and well publicized rules for construction, language and dissemination of the law. (Indeed, no less than as regards clarity of meaning, a failure to do so must be viewed as an attempt to create a favored class within the greater host of participants, equipped with knowledge to be ransomed by their fellows.) (Hendickson, Cracking the Code, pp 40-41, italics mine) In order for you and your business to remain in compliance with the all the regulations passed by these agencies, you have to keep lawyers and accountants on retainer, spend money and order your life according to them and hope your political views do not put you on the wrong side of some bureaucrat with an attitude. It is all a waste of time and money. But our federal bureaucracy has become an entity all its own populated with unionized federal workers whose most basic inclination is to make sure government grows more and more so their jobs are secure. Particularly since their salaries have been rising at an exponential rate compared the the rest of us. So every year they crank out tens of thousands of pages of rules and regulations that encompass every aspect of our lives. All of these people are unelected yet they pass all these regulations that have the force of law. You can easily be hauled into court and fined or imprisoned for the breach of a myriad of these regulations. Congress has been aiding and abetting this transfer of power by writing open ended and vague bills that leave it up to the particular regulatory agency and its people to interpret and “clarify” the meaning and implementation of their bills.
Let’s conclude with a recent example that will encompass all three areas of illegitimate lawmaking. In the debate over the Cap and Trade bill, a bill that would do more to hamper our worldwide competitiveness, stifle innovation and cost us boatloads of money as individuals and families, the Environmental Protection Agency has threatened to do an end run around congress. When president Obama could not broker a deal in Copenhagen and it looked as if Cap and Trade would be stalled in the senate, the EPA declared that it would use its power to regulate carbon dioxide. The general regulatory power was granted it by congress, a violation of the principles of delegation, and its ability to regulate carbon dioxide specifically was given to it by the supreme court, a grant of power to the federal government found nowhere in the constitution. It will create a ream of rules and regulation regarding this that will impact every area of your life because almost every modern human activity, including the very act of breathing, produces carbon dioxide. No doubt, only a lawyer specializing in environmental law will be able to understand much of the language, violating the ideal of clarity of command, and its sheer volume initially and the plethora of later additions will make reasonable notice for you and I a practical impossibility. Yet our compliance will be expected and our non-compliance will result in fines and/or imprisonment. Congress, to whom we have delegated the authority to protect our interests, could step in and remove this authority from the EPA or eliminate it entirely by defunding it but they won’t because they want to expand federal power as well. If it can be done by some other agency so they can keep their “hands clean”, so much the better. They are all complicit in the destruction of our individual sovereignty, God given rights, our wealth and the moral foundation of our nation. To them it is a game, each play designed to take more power from “we the people”. It is time to do one of two things. Either we get up our of our seats and rush the field (revolution) or leave the stadium (secession). If we do neither, we will soon find ourselves chained permanently to our seats, a captive audience subject entirely to the whims of the ruling class.