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Hurry Up and Know Nothing

June 25, 2013

You should check out Andrew McCarthy’s treatise on what’s wrong with Congress.  Okay, it’s a start on what’s wrong with Congress, but the point makes that even more clear.  It starts with a debate between Senators Ted Cruz and Charles Schumer on immigration.  The initial point of McCarthy’s post is that some 119 pages of changes were inserted into a 1200 page bill, and the two are debating whether a senator could read that over the weekend in order to vote from a knowledgeable position.

And I agree with his next point as well… really, a 1200 page bill?  How many loopholes and problems can show up in that much complex material?  And this is one of many bills that’s going through Congress and could be signed into law.  With all this legislation that adds complexity and contradiction into the system, how can the laws be enforced?

I’ll go to McCarthy for this section:

You cannot have a functioning democratic republic when the laws are so voluminous no one can know what the law is. And that is especially the case when (a) the rationale for passing new laws — according to “reform” proponents like Senator Marco Rubio and Rep. Paul Ryan — is that we don’t enforce the laws currently on the books; (b) key parts of legislation consist of commitments to do what previously enacted law already commands; and (c) the president, notwithstanding his oath to take care that the laws are faithfully executed, claims the power to refrain from enforcing whatever laws he disapproves of. Washington has made a farce of the legislative process and of the once proud boast that we are ”a nation of laws not men.”

In his excellent little book A Matter of Interpretation, Justice Antonin Scalia recalls that the emperor Nero would post edicts high up on the pillars — it was a pretense of having the rule of law that barely camouflaged the reality of arbitrary and tyrranical enforcement. That is what we have now. It is what happens when a government gets so big no one any longer recognizes either the limits or why it is essential to have limits.

I know that Rome is Lynn’s shtick.  I have to borrow it occasionally.  We’ve approached the point where a law can be passed and enforced in any way in any district, with no continuity.  Imagine playing a game of cards at a table and having someone move you to a different table.  Once you get to the table, you suddenly realize that the rules are different, and that people are using that to get your money when you thought you were winning.  That’s a weak analogy for what might be happening given the direction of our legislation.

Don’t blame the political parties as much as you should blame the people who vote for this type of system.  We have the ability to change things, but we’d need to get angry.  The Tea Party at least had that much right.  Get angry and fight for change, and keep changing until it really affects the system.  Maybe it’s time to wake them up again.

One Comment leave one →
  1. Gail Combs permalink
    June 25, 2013 11:51 am

    It is worse than that.

    The Constitution and Amendments gave us the RIGHT to a trial by jury. This is the most critical part of the Constitution because the Jury has the RIGHT to judge both the person AND THE LAW. This is what case law is about. A jury can find a law ridulous and based on that declare a ‘Guilty person’ not guilty. See

    Of course if you are the mighty and powerful who want to use the government to punish your competitors the last thing you want is a jury to over turn the laws you just bribed Washington to pass.

    So we now have a bureaucracy, stuffed with those who owe allegiance to the corporate cartels acting as Judge and Jury.

    The 6th and 11th Amendment of the U.S. Constitution and Article 3 Section 2 give US citizens the right to a trial. As Joan Biskupic stated:

    “Anyone accused of a crime in this country is entitled to a jury trial.”

    The Constitution may say so but, in fact, this is simply not the case — and becoming less so as politicians fiddle with legal definitions and sentencing standards in order specifically to reduce the number of persons entitled to a trial….

    ….As Thomas Jefferson put it to Tom Paine in a 1789 letter, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” ….

    Here is how the politicians have gotten around the US Constitution to make sure citizens are denied their right to a trial:

    The Seventh Amendment, passed by the First Congress without debate, cured the omission by declaring that the right to a jury trial shall be preserved in common-law cases… The Supreme Court has, however, arrived at a more limited interpretation. It applies the amendment’s guarantee to the kinds of cases that “existed under the English common law when the amendment was adopted,” …

    The right to trial by jury is not constitutionally guaranteed in certain classes of civil cases that are concededly “suits at common law,” particularly when “public” or governmental rights are at issue and if one cannot find eighteenth-century precedent for jury participation in those cases. Atlas Roofing Co. v. Occupational Safety & Health Review Commission (1977). Thus, Congress can lodge personal and property claims against the United States in non-Article III courts with no jury component. In addition, where practice as it existed in 1791 “provides no clear answer,” the rule is that “[o]nly those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.” Markman v. Westview Instruments (1996). In those situations, too, the Seventh Amendment does not restrain congressional choice.

    In contrast to the near-universal support for the civil jury trial in the eighteenth and early nineteenth centuries, modern jurists consider civil jury trial neither “implicit in the concept of ordered liberty,”!/amendments/7/essays/159/right-to-jury-in-civil-cases

    For more information on Jury Trials and how they have been taken from us see my comments at Musings from the Chiefio.

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