Thinking About Law

Over on my other blog, The Switchel Traveler, I wrote about our recent vacation in Washington, DC. As a result of that trip, I’ve been thinking about law.

Our system of government is based on the rule of law: all people are “equally subject to publicly disclosed legal codes and processes.” All are bound by rules that are fixed and announced beforehand. The rule of law is a constraint on individual behavior, but more importantly it is a constraint on the coercive power of government. Government is intended to be predictable and limited, not arbitrary and boundless. John Adams famously wrote into the Massachusetts Constitution the phrase: “a government of laws and not of men.” (Part the First, Article XXX)

The Massachusetts Constitution was adopted in 1780 and it influenced the drafting of the United States Constitution in 1787. Both constitutions sought to create a government based on the rule of law by creating three separate branches of government, with different functions relative to law:

  • Legislative branch – writes laws
  • Executive branch – prosecutes lawbreakers
  • Judicial branch – decides if alleged lawbreakers are guilty (if they claim innocence)

The legislative function is general – we expect laws to apply to all people. The executive and judicial functions are specific and particular, relating to individuals who are alleged lawbreakers.

The separation of powers into three branches of government sets up a system of checks and balances. If any branch attempts an abuse of power, the other branches have the ability to apply restraint.

Since 1787 we have strayed in some ways from the separation of powers doctrine as originally conceived in the Constitution.

One such move occurred in 1803 with the case Marbury v. Madison. The Supreme Court asserted its authority to strike down a law passed by Congress that the Court deemed unconstitutional, a principle known as judicial review. The Constitution does not explicitly grant such authority to the Supreme Court. Nevertheless all parties have generally accepted this expansion of the Supreme Court’s role.

Another move began in the late nineteenth century and accelerated in the twentieth century with the delegation by Congress of “rulemaking” authority to agencies in the executive branch. This is known as administrative law. In addition to delegating legislative powers, Congress also often delegated judicial powers. Hence, many federal agencies in the executive branch of government have administrative law judges. None of this is explicitly authorized by the Constitution, yet most parties have accepted these developments, at least to date.

The number of laws, including administrative laws, has exploded since the Constitution was written in 1787. The framers of the Constitution likely did not anticipate this. The Library of Congress says no one knows how many federal laws there are. Nor is the explosion in law limited to the federal government. Even in the small state of Vermont, the legislature passes approximately 100 new Acts every year, and one Act can affect many sections of law.

The following advice was once given to a new member of the Vermont legislature:

It is more important to kill bad bills than to pass good ones. … See that the bills you recommend from your committee are worded so that they will do just what they intend and not a great deal more that is undesirable. Most bills can’t stand that test.

That advice was given to John Coolidge of Plymouth, Vermont, in 1910 by his son Calvin who was then the mayor of Northampton, Massachusetts. Source: The Quotable Calvin Coolidge, compiled and edited by Peter Hannaford (2001), page 96.

Calvin Coolidge had previously been a Massachusetts state representative. He would later become a Massachusetts state senator, senate president, lieutenant governor, and governor. In 1920 he was elected vice president of the United States and he became president three years later when President Warren Harding died of a heart attack. He happened to be visiting his family in Vermont at the time. John Coolidge, a justice of the peace, administered the presidential oath of office to his son in the family home in Plymouth at about 2:30 AM on August 3, 1923.

Calvin Coolidge was a student of constitutions. From his time in Massachusetts state government, he was familiar with the Massachusetts Constitution drafted by John Adams. But his interest in constitutions began before he left Vermont. He wrote the following about a class at Black River Academy:

This was my first introduction to the Constitution of the United States. Although I was but thirteen years old the subject interested me exceedingly. The study of it which I then began has never ceased, and the more I study it the more I have come to admire it, realizing that no other document devised by the hand of man ever brought so much progress and happiness to humanity. The good it has wrought can never be measured.

Source: The Autobiography of Calvin Coolidge, 1929.

The Constitution of the United States is indeed a monumental document in the history of the world. And yet our system of government has a flaw. Government is a ratchet when it comes to laws. Movement occurs mostly in just one direction: more laws. It is much easier to pass a new law than to repeal an old one.

Calvin Coolidge’s advice to his father was good advice, but even that advice results in always more laws, just at a slower pace. Over time we risk building up such a huge edifice of law that “We the People” will not be able to keep up, and citizens will lose respect for the law. No self-governing nation can survive that.

(Not even Coolidge anticipated the explosion in laws in the twentieth century. He died in January 1933, after Franklin Roosevelt was elected president but before he took office. Roosevelt’s New Deal greatly accelerated the growth in laws.)

Our laws are like a tree that grows and grows without restraint until it collapses. Perhaps, in order to keep our republic healthy and sustainable, we need a fourth branch of government to prune that overgrown tree. Its sole function would be to repeal laws.

This is not an original idea with me. It was proposed in the science fiction novel The Moon Is a Harsh Mistress by Robert A. Heinlein (1966), and perhaps even that was not the origin of the idea. More recently, law professor Glenn Harlan Reynolds discussed this idea in a 2014 column in USA Today: We don’t need more laws. That article includes links to a law review article and a talk at Harvard Law School.

Both Heinlein and Reynolds propose an additional house of Congress, which Reynolds calls a House of Repeal. That would work, but I wonder if a fourth branch of government, separate from and equal to the other branches, might work better. There would then be two branches of government whose function relative to law would be general (i.e., applying to everyone), not specific and particular like the executive and judicial branches. The legislative branch would create new laws when deemed desirable, and the new fourth branch would repeal laws when they are deemed not desirable. There is a yin-yang complementarity to that structure which is appealing, and lacking in our present system of government.

Well, as a member of the town selectboard, I’d better get back to reading the 2019 Legislative Wrap-up recently published by the Vermont League of Cities and Towns. It summarizes new laws passed by the legislature this year that municipalities like my town should pay attention to. It’s a summary, and it’s 30 pages of small print. And that’s only the new laws of interest to municipalities. In just one year.

The photo at the top of this post is the Authority of Law statue in front of the U.S. Supreme Court building. Taken on May 29, 2019 during our recent trip to Washington, DC.

UPDATE 7/04/19: Happy Birthday, USA! Both John Adams and Thomas Jefferson died on July 4, 1826, the 50th anniversary of the Declaration of Independence. Today is also the birthday of Calvin Coolidge, born on July 4, 1872.

The Wall Street Journal has two excellent columns on the theme of this post:

The Declaration of Independence Unites and Divides Us by Jeffrey Rosen discusses the abiding influence of our two founding documents, which are sometimes at odds with each other: the Declaration of Independence (1776) and the Constitution (1787).
“The Saturday Essay” posted 7/04/19 5:30 AM.
Added later: Published on page C1 in the print edition for Saturday/Sunday, July 6-7, 2019 with the headline “We Hold These Truths.”

The Founders Who Opposed the Constitution by Jason Willick discusses the debates about the Constitution between the Federalists and the Anti-Federalists, and the views of Judge Andrew Oldham about how that debate provides insight into the modern administrative state (see administrative law above).
“The Weekend Interview” posted 7/03/19 6:08 PM.
Added later: Published on page A11 in the print edition for Saturday/Sunday, July 6-7, 2019 with the headline “The Founders Who Opposed the Constitution.”

A “House of Repeal” or a fourth branch of government as described above would be a good positive step toward addressing the issues discussed in both columns.

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2 Responses to Thinking About Law

  1. Brian Turner says:

    A simple – not easy – remedy at the federal level would be a sunset amendment to the constitution. All laws, regulations rules and executive orders are nullified and void within 5 years of going into effect. That would bring some accountability to the cowards in DC.

    Like

  2. why can’t we get rid of old laws? lawyers! the more laws there are the more business for the legal profession. yet americans will continue to elect lawyers to govern them in numbers that far exceed lawyers % of the population. never hear a word from the proportionality folks about lawyers holding positions in government in numbers far greater then their % of the population. but them maybe most of the proportionality proponents are lawyers.

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