Warning: The Law May Be Hazardous to Society's HealthWriston, Walter B.
Warning: The Law May Be Hazardous to Society's Health
Warning: The Law May Be Hazardous to Society's Health
Since I come as an amateur to plead a case before professionals, I hope you will permit me two stipulations. The case I will argue is that our free society is gravely imperiled and individual freedom itself is in danger of being smothered. At the outset I would ask to stipulate that all free societies which endure are based upon the rule of law. Indeed the dictum that we shall have "a government of laws and not of men" is embedded in the American consciousness.
The second stipulation that I would ask you to accept is that the rock on which we stand is voluntarism. Democracy can be based on no other presumption. We are the masters, not the servants, of the state. The Declaration of Independence made this point with great clarity: Governments derive "their just powers from the consent of the governed" and further "it is the right of the people to alter or abolish unsatisfactory procedures." Our first government in this country failed, and in 1789 it was replaced by the adoption of the Constitution. Its first words state the thesis with maximum economy "We the people."
We are a nation of immigrants who voted with their feet that America was their voluntary choice. Immigration is only one evidence of voluntarism, but a powerful one. In no other country in the world do men and women move so freely from place to place and from one occupation to another. We are the most mobile society in all history, nor can any other nation match the American people in the multiplicity of voluntary societies for every form of social welfare. These voluntary associations of all kinds do society's work through the unpaid work of free citizens. It is a system that has worked for America. The great judge, Learned Hand, put it succinctly "Our democracy rests upon the assumption that set free, the common man can manage his own fate; that errors will cancel each other by open discussion; that the interest of each, even when unguided from above, will not diverge too radically from the interests of all.
The implementation of this philosophy has produced the most productive society the world has ever known. This is evidenced not only by our national outpouring of goods and services, but also by the large measure of individual freedom we all enjoy. The framework which supports our unique society is that until fairly recently most of us voluntarily conformed to the law. The importance of this concept is clear, but was emphasized by the Nobel laureate, F. A. Hayek, when he asserted that "voluntary conformity may be a condition of the beneficial working of freedom." Today, I believe that such voluntary conformity is becoming literally impossible for the majority of the American people.
In America today, only the very rich or the very poor have any possibility whatsoever of learning what the law is, surely a precondition to voluntary conformity. It is becoming increasingly true that the great bulk of our population has to ignore the law completely in order to survive. There are so many laws and regulations with the force of law that it is a fair bet that everyone in this room is presently in violation of some statute -- we just do not know which one. Not only do we not know what the law is, we cannot afford to find out. The rich may be able to hire enough lawyers to read at least some of the laws and regulations that pour out of government at all levels, but the poor can only find out by being rousted in the street.
Recently the Attorney General of the United States spoke wistfully about legal reforms which might make it possible to expedite antitrust cases "so that the process can run within the lifetime of a normal human being." Ordinary people do not have a lifetime to find out what the law is, even if they wished to devote their life to this project. The web of laws is now so pervasive that much of it is useless. Since that is true, it puts the power of selective enforcement in the hands of the executive, or a politician running for office, or an investigative reporter looking for a story. Billy Carter found out that not having his fire extinguisher charged was a violation of the law, but millions remain in ignorance of this important fact because the ordinary worker has no news value. A bank can be flouting the law if the film in its surveillance camera runs out. A dim bulb in the taillight of your car perhaps fails to pass the legal screen. The list runs on forever. It is so long that no index can be made even listing the subjects covered, let alone what the law says.
It would be tragic if what began as the rule of law was in the end brought down through the sheer confusion the mass of law now creates. As more and more laws are put on the books each day, more and more people have to ignore them. We are training up an entire generation, who with some justification, can have little respect for the law. We are suffocating voluntarism under a blanket of laws, rules, and regulations. Our free society which is rooted in voluntary compliance stands in danger of strangulation.
The will of the people can be stifled by laws which are so numerous so prolix, so opaque that they cannot be appraised by the public. If we have not quite reached that point, we are perilously close. The authors of the Constitution, writing in , clearly foresaw this danger and drove the point home again and again. Madison said (No. 62), the "facility and excess of lawmaking seem to be the diseases to which our governments are most liable.
For all their insight, the framers of our Constitution could not foresee a day when approximately 500 legislators would employ 10,000 people to assist them in their legislative tasks. What they could have told their modern successors was that such a horde would propose far too much legislation. We have today the spectacle of the total neglect of that warning uttered long ago by Spinoza, that "He who tries to fix and determine everything by law will inflame rather than correct the vices of the world." Yet it is that precise effort that has engulfed us in the avalanche of statutes and rules. One of a number of the Senate aides, Michael Scully, wrote in the : "The real question is not who runs the Senate but rather which group -- the elected or the unelected -- dominates the operations: Senators, by being elected, or staff, by being numerous." The question is sharpened when we read in the Congressional Record a whole series of Senators rising in their place to ask that unelected staff members attend the business of the greatest deliberative body in the world on their behalf.
Last year, there were 20,000 bills introduced in Congress. In a single day not less than 242 committees and subcommittees of the Congress were in session -- all, under the rules, "for a legislative purpose." No wonder they produce such an indigestible mass of legislation. No wonder the President said our tax laws were a scandal. It was the mildest appropriate epithet. All the Congress, all the accountants and tax lawyers, all the judges and a convention of wizards cannot tell for sure what the income tax law says. Add to the laws the mass of regulations with the force of law and the sheer weight of the imperatives brings voluntary compliance past the breaking point.
By what route have we arrived at this danger point for human freedom? If we look closely at where we are today in our national journey, I think it can be argued that almost without being aware of it, we have ignored the basic intention of the founding fathers that we achieve a fair and equitable government through the checks and balances prescribed in the Constitution. The Constitutions of some of the original states, notably those of Virginia, Maryland and Massachusetts, provided specifically for the separation of powers between the Executive, Legislative and Judicial Branches.
The separation-of-powers concept was nailed to the mast by John Adams in the Massachusetts Constitution of 1780: "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men." That may sound tedious but its clarity is classic. The framers of the Federal Constitution incorporated that basic doctrine though not in so doctrinaire a form. In the they said with emphasis that the separation though not absolute must be observed.
Current practice violates not only the letter but the spirit of the principle. We have ignored John Locke's dictum that "the legislative cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others..." A few numbers will make the point. In 1975 there appeared in the 177 proposed new rules and 2,865 proposed amendments to existing rules. In the same year 309 final rules and 7,305 rule amendments were promulgated, showing that instability of which the writers of the warned in these words: "Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed." (62) Between 1970 and 1975, seven major federal regulatory agencies were created by Congress, further eroding the doctrine of the separation of powers. Over the same period 30 major laws were enacted making substantive changes in the regulatory framework. The Executive in the form of regulatory agencies, now fills the Federal Register day after day with explicit evidence that the separation of powers has eroded to such an extent as to constitute a clear and present danger.
We are moving toward a society described by de Tocqueville as leading to despotism. It was one, he said, which "covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate... The will of men is not shattered but softened, bent and guided." The lines between the three divisions of function in Government have become so blurred that one is tempted to long for the over explicitness of John Adams.
Our Constitution says clearly that "all bills for raising revenue shall originate in the House of Representatives." It is no secret that since the Budget Act of 1921 the substance has been that such bills originate with the Executive. A delegate to the Constitutional Convention who through some miracle returned to earth two centuries later would be appalled to learn that a Federal Judge appoints and controls the principal and teachers of South Boston High School, to say nothing of laboring over maps to lay out bus routes. No matter what the perceived social justification for such actions, they transgress the doctrine of the separation of powers and confuse the legislative, judicial and executive functions.
We have so fouled our nest, that Federal agencies of the Executive issue subpoenas of more than one thousand pages calling for data that must be measured in miles of computer tape. Rather than return to the basic separation of functions spelled out in the Constitution, we have testimony from the Attorney General of the United States suggesting a move in the opposite direction. One solution to this intolerable situation would be, he said, to take the adjudication of these cases away from the courts and give it to the legislature. "Congress could hear the evidence and find the facts as to the existence of monopoly or the need for a remedy in a monopolistic situation."
In addition to the Federal legal logjam, the fifty states add to the congestion. In just one year, the 50 state legislatures enacted more than 45,000 bills. In my city, suffering from urban decay and desperately needing new housing, we have a building code of 843 pages which requires that every builder get anywhere from 40 to 130 different building permits and licenses. This was part of the reason that led the Knapp Investigation Commission in New York to say that "next to organized crime" the second largest source of police corruption was "legitimate business seeking to ease its way through a maze of city ordinances and regulations."
While it is against the law in New York to predict the future -- a misdemeanor punishable by three months in jail and a $500 fine -- I believe the First Amendment covers me if I state the situation as it is today. The plain fact is that it is impossible for people who wish to obey the law to do so. Exhibit A is the Truth-in-Lending Act -- a great title which implies that prior to its passage the truth was hard to find. At Citibank our domestic legal bill exceeds the total earnings of the great majority of banks in this country. With this vast expenditure of money and with the best will in the world, there is a chance we can find out what the law means, but only a chance. So far the 53 sections of the law have been interpreted 43 times by the Board of Governors of the Federal Reserve -- no doubt practicing law without a license. Those pronouncements are now being revised in the light of some 1200 staff letters of further interpretation. What chance does a small bank or business have to find out, let alone obey, a law so complex and so burdensome? The answer is that they cannot. These complex interpretations of law, bizarre as they are, are not the fault of the regulatory agencies. It is the direct result of Congress delegating the legislative functions to the Executive. The bureaucracy has become so proliferous, its discretion so broad, its rules so unstable that there is a strong tendency to make this a government of men, not of laws.
The area of ignorance or non-compliance, or both, is not limited to the private sector. Indeed, it flourishes in the public sector. Not only does the public sector have all the problems we have discussed of trying to find out what the law is, but an additional confusion arises when one regulatory body attempts to enforce its rules on another. Public bodies often have goals set for them by legislation that are in conflict with the goals of other public bodies set by the same legislature. Everyone in the private sector has to pay attention to even the lowest ranking member of the bureaucracy lest he have a contract canceled, a well-publicized legal threat, or suffer an unfair press leak. Win, lose or draw, the bureaucracy will remain forever, but the private company may be driven out of business.
Federal agencies are not subject to these modern forms of imperial intimidation and tend to ignore other regulators. Why the law is difficult, if not impossible to enforce in the public sector was spelled out by Wilson and Rachal. The private sector cannot deny the authority of the state but "a government agency can and does...deny the authority of another agency...Inside government," they wrote, "there is very little sovereignty, only rivals and allies." The chances of this state of disorder changing is remote, but the reality of the public sector growing is certain. This being so, more and more citizens, even those on the public payroll, will fail to obey the law. When Government itself is contemptuous of law, no citizen can respect its authority.
Madison accurately foretold this moment in history when he wrote in "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...or undergo such incessant change that no man who knows what the law is today, can guess what it will be tomorrow." Few would dispute that we have now arrived at the point in our national journey that Madison warned us against. It would be a supreme irony if just when Congress talks so much about the citizen's right to know, it makes effective knowledge absolutely impossible by passing so many and so prolix laws.
The weight of the vast bureaucracy, created by law, and in turn creating new laws, is now so oppressively heavy it cannot be ignored. This awakening has produced fashionable words like "sunset laws" and "zero-based budgeting."
What to do? In a voluntary society reform must start at the local level. So I plead that your influence and persuasive powers be used to save our free society. Half of the governors elected to office since the Civil War have been lawyers, and 24 of our 38 Presidents have come from your profession. Many chief executives of corporations and an increasing number of our labor leaders are from your ranks. More than 50 percent of all U.S. Senators and Representatives come from the law schools. In short, your profession is not without influence and in my judgment, it now faces the test of saving the rule of law in America before it is too late. It is time to call for the majority of laws to expire by their own terms, or even have zero-based laws, open at any moment to the query, "Why did we need it in the first place?"' If useful then, is it still an imperative necessity?
If this movement gathered momentum it would help, but we need something more. The one law not subject to interpretation or mutation even by the Supreme Court, is Parkinson's Second Law that "work expands to fill the time available." It used to be that the Congress was in session about three months each year. The rest of the time members were home listening to the people who elected them. Today, Congress meets almost 12 months of the year with a few recesses, leaving a staff of 10,000 to dream up new laws to bring voluntary compliance (the democratic assumption) to the breaking point. Senate Minority Leader Howard Baker recalls that when his own father was elected to Congress in 1950, Congress was in session an average of 103 days. The Senator does not accept the argument that the problems of 1977 are so radically different as to require the abandonment of our American tradition of "citizen-legislators" in favor of the elected bureaucracy Congress has now become.
It seems to me it is time for a more drastic proposal. Let us have a Constitutional amendment which would limit the congressional session to six or seven months. Parkinson's law would still work, but with a little luck we can cut down the number of new laws. Even a slowdown in the rate of increase might buy some time for our voluntary democracy. A shorter session, more contact with the electorate and less with the staff, and the Washington press corps might restore some sense of perspective to our legislative process. The same result could be achieved by a simple majority vote at the beginning of each new Congress, but this would require a fresh vote each session.
That modern Delphic oracle, the public opinion poll, which legislators have to rely on instead of actually talking to real live constituents, signaled the trouble I have been talking about. Over the last decade the polls have indicated that more and more people believe that the part of their personal lives over which they are permitted to exercise some control is rapidly diminishing. We have all become suspicious of authority, at every level. A majority of us must now ignore the law because there is no other viable alternative. Surely this condition is a warning signal for society.
It is time to act. It is time to curb the proliferation of laws lest they smother our legal system. To those of you who say this is too large a task, I would quote one of your own, Louis Brandeis, who summarized the issue in three sentences. "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty." If we continue to force an increasing majority of our population to ignore the law, we shall have neither order or liberty, but we will run the risk that an authoritarian government will fill the void.
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|Warning: The Law May Be Hazardous to Society's Health before the American College of Trial Lawyers 6 August 1977|
This document was created from the speech, "Warning: The Law May Be Hazardous to Society's Health," written by Walter B. Wriston for the American College of Trial Lawyers on 6 August 1977. The original speech is located in MS134.001.002.00003.