Six Disastrous Assumptions

“A government ought to know how to levy taxes.  But if it doesn’t know how to collect them, then a man is a fool to pay them.”

J. P. Morgan in what has been termed the indiscretion of a lifetime

“People who love sausage and respect the law should never watch either being made.”

attributed to Mark Twain

Morgan’s boast and Twain’s warning trigger this reaction in me: A law that cannot be comprehended deserves to be ignored or, at the very least, ridiculed.

This is not anarchy.  This is a practical response to gibberish.  A government ought to know how and when to make law, but more especially when not to. This was the message of Viscount Falkland early in the 17th Century, who declared before the British Parliament: “Mr. Speaker, when it is not necessary to change, it is necessary not to change.”  Our state and federal governments each apparently operate under an assumed production quota that has not been met.  The crafting of legislation has given way to the crafting of coalitions between factions with opposite views of a proposed law.

From these coalitions, this “reaching across the aisle,” this “bi-partisanship” — What an insincere word! — we are treated to the vision of our representatives cooperting to turn cow chips into decorated cakes. They don’t craft law, even though they’re all lawyers. They toss up a rickety shell of “enabling legislation” and assign the writing of law to a process called “agency rule-making,” so that Congress can return to posturing and stuffing omnibus bills with all the odious proposals that wouldn’t stand a chance under the scrutiny of honest deliberation.

This Is What We Vote For

It’s my fault — and yours.  We send the most kind-hearted, well-intentioned, meddlesome people to serve in our legislatures, state and federal, do-gooders who are ignorant of their own states’ constitutions, not to mention the Constitution that constrains Congress. .

They believe, first of all, that they were sent to their state or nation’s capital to make law.  They’re under the misapprehension that something must be done. Therefore they must find subjects — issues — begging to be bound in the concertina wire of newly-spun law.

The Assumptions

A legislature convenes, ready to go to work.  Every member, eager to be effective, casts about for an issue.  The first, usually erroneous, assumption is that there is even a problem to be solved in the first place.  When the culture of the country or of a state refuses to change swiftly enough to satisfy the social engineers in our midst, mobs of shrill and indignant activists cry for more laws. This is usually the most ready source of urgent issues.

The legislature’s second assumption is that the shrill and indignant deserve to be heard — that every “problem” raised by the perpetually loud and self-righteous can be resolved and therefore must be resolved.

The third assumption is that what the hoarse, vocal mobs demand cannot be resolved without government intervention.

Real problems do exist, of course. But most are not properly the government’s business.

The fourth assumption is that the appropriate intervention is a law, when, in truth, a few noisy, nosey people of one persuasion simply need to adjust to the quieter people of another persuasion.

Because we (voters) are smart and have learned how to solve problems, we assume that our legislators are like us in those skills. And everyone who has raised a child knows that not all problems have solutions. Often the problem exists nowhere but in the mind of the immature, impatient, offended, screaming child. Sometimes the problem is real, like an abrasion or a broken toy, and we adapt to it. Isn’t that what we teach our kids?

In rare instances, though, all of the first four assumptions are correct, right up to the need for a new law. Sadly, real problems deserving of government attention are trampled in the legislators’ — in Congress’s — stampede to assuage the selfish, the greedy, and the legions perpetually offended on behalf of others.

This latter clatter is comprised of individuals insidiously motivated to watch your language and your behavior and to upbraid you on behalf of groups they have defined as needing a perimeter of defense. Think of post-Europeans — whom some call “white” people — who have assumed the role of activists on behalf of others who don’t include them as members, Americans of indigenous heritage, for instance. And so, we have whitish people, native to America, insisting that other whitish people use the term “native America” to apply not to native Americans but to people who still refer to themselves as American Indians.

The fifth assumption of a legislature eager to solve every problem, real and imagined, is that a decisive, effective law is to be avoided and substituted with a compromise that creates a new program or bureau, new and complicated regulations, a new entitlement and, with it, new generations of people dependent on the government for their financial survival and personal comfort. (That would be lawyers. Silly you, you thought I meant the poor.)

Even if the first four assumptions are correct, the fifth should be viewed with the greatest suspicion. Our legislators should first be assuring that requirements and constraints already written into law are being enforced. If a new law is still needed, a simple directive or prohibition should be the preferred response.

The sixth assumption is that the legislators are exempt from writing the law themselves but must hand that task to bureaucrats through enabling legislation.

Legislation now commonly turns all power over to a fourth branch of government not described in the Constitution. A legislative act nowadays typically creates a new agency empowered to write the code, enforce the new rules, investigate compliance, judge offenders, and impose penalties — all of which properly belong to the original three branches of government.

Pause and Read Those Assumptions Again

If the first four assumptions were challenged honestly, there would be a lot of idle time, and a lot fewer government employees, in Washington, D.C. and in state capitals.

When a legislature swallows the entire package of assumptions, we get what we voted for: the enthusiastic, one-size-fits-all application of good intentions backed up by the force of law.

There are always two factions in a legislature, sometimes more. One faction generally represents the money pushing for one solution to a non-problem, the other faction represents the current state of affairs and the money behind it, or is backed by or another group of donors with another agenda. When necessary, one side’s bill is blended, in committee, with the other side’s version until the bristly points of each have been trimmed to stubble.  A typical result is the Pigrolet.

Politics necessitates compromise to assure that nothing so extreme as to be effective becomes law.

Instead of this institutionalized ineffectiveness, one side’s bill or the other’s should simply be passed in its entirety.  If it’s good, it will quickly accomplish what it set out to do.  If it’s bad, it will flop, be repealed, and the sponsors will go away in shame. The sponsors of legislation should agree to accept humiliation as a consequence of bad law in exchange for getting their agendas passed.

We could add a corollary assumption, I suppose — that bureaucrats will achieve through rules what the legislation might have achieved in simple language. Piggy-backed on that you can add the assumption that regulators will certainly not tailor the language of the rules to favor a certain set of political beliefs or an agency’s sense of self-preservation. Neither of these assumptions is valid — they are merely the assumptions of the legislators who consign lawmaking to the bureaucrats.

A Better Idea

Having continually failed to live by Falkland’s maxim on the necessity of legislation, the chief responsibility of all legislatures, state and federal, for the next hundred years, ought to be to observe a moratorium on passing new bills and, instead, the careful review of all laws and acts now in force and the dismantling of most.  A new law should be permitted only insofar as it replaces an existing act with one that demonstrably can be understood by a majority of high school graduates, since compliance and enforcement are chiefly in the hands of just such individuals.

According to figures compiled in 2001, over 150,000 new federal, state, and local laws are passed every year in the USA and over 3,000,000 new pages of regulation are published.  Ignorance is no excuse if you are charged with a violation.  (Unless you’re Congressman Diggs, q.v.)

The Sausage Connection

Once a squishy non-solution to a non-problem has been crafted it is time to give the bill a name and amend it with unrelated provisions. The Covid relief bill of 2021, also known as the “American Rescue Plan Act — (ARPA),” is the newest and rottenest example. It’s an “omnibus” bill, meaning that it includes a lot of stuff retrieved from wastebaskets in the legislative office building — stuff that was almost abandoned and discarded during the previous President’s administration.

To fund it, the federal government is borrowing more than $14,000 from every taxpayer in order to return $1,400 in “rescue” money. The rest of the money confiscated to pay for the bill goes to the unrelated riders attached to it — solutions to problems you didn’t know you had and that you didn’t know were related to the virus: bail-outs for states and cities with poor spending habits, foreign aid for non-pandemic projects such as abortions of undesirables in other countries, money for farmers, and funding for cash-strapped Amtrak, just to give a few examples. If Congress were behaving as its charter intended, each of these wonderful (to some) provisions would be handled as a separate issue, voted upon as individual bills, and funded without borrowing at all.

ARPA, of course, includes rules intended to restrict peaceful citizens’ access to firearms — another issue obviously related to the effects of the virus on American households. And we will eventually learn of other rules and restrictions that even the members of Congress don’t know are in the bill — the bureaucrats haven’t written the rules yet! And that’s part of the message here. It’s probably not the scant few provisions passed by Congress and signed by the President that you will unwittingly violate.

They’re only “acts” anyway, with grandiose titles, as if “The Children’s and Young People’s Internet Safety Act – (CAYPISA),” by its very name, accomplishes its pretenses. (That’s an illustration. I made it up.)

An act such as that is merely “enabling” legislation, which enables the cadre of un-elected zealots to “craft” the body of regulation calculated to assure that children using the internet remain safe — whatever that means.  Congress assigns the writing of legislation to the bureaucrats engaged in agency rule-making, the permanent denizens of the Washington swamp — bureaux, to use the French plural, which, as described above, are granted the unconstitutional authority to craft regulations having the power of law.

Wherever you are, U.S. citizen, at any given moment, you are subject to hundreds of thousands of inscrutable, inaccessible laws.  Do you need to tutor you child at home?  Do you pay someone to mow your lawn?  Are you pumping self-serve gas in Massachusetts?  Did you just click “check out” on a web site?  Did you just sign for a package from your grandmother in Estonia who has sent you some family heirlooms?  Did you just shoot a skunk out behind the shed?  I would wager (illegally of course) that what you just did, or what you will do about it in your very next move, not only is regulated but cannot be done legally.

The Internal Revenue Code has deified regulatory insanity and has set the standard for it.  Now any other government regulation can be just as incomprehensible and get away with it. (Why is the Internal Revenue Code impenetrable?  Because Congress passes a bunch of little tweaks every year that must be shoe-horned into it somewhere.)

It’s not that any enforcement agency will ever catch up with you by scrutinizing your daily actions.  The conventional enforcers, that is, police at all levels of authority, are oblivious to most of this morass of regulation.  They go home after work and break all the same laws that you do.

What Really Happens

You’ll be caught once someone jealous of your presumption of freedom, (a nosy neighbor, your ex-husband’s girlfriend’s daughter, an innocent-sounding question on an IRS form, a postal clerk), notices that you did it.  Did you write a check to pay the kid mowing your lawn?  Did you tell your buddy that you tossed the dead skunk into the woods for the coyotes?  Did you compel your daughter to replant the neighbor’s flowers that she uprooted on a lark the night before?

Once you are caught, an attorney acting on behalf of the party offended by your action — a prosecutor, a tort lawyer perhaps, will magically locate the regulation that you violated and will file the papers to charge you with the crime.

Once it reaches this level, there is no use resisting.  You’ll be named in the court news (even though you’ll not actually have your day in court).  Pay the fine and, if you can, undo the “damage” wrought by your good intentions.  Make a show of self-flagellation; write a letter to the editor not to proclaim your innocence or protest your ignorance, but to profess your chagrin and regret.  Don’t whine.  Argue that you make a point of reading at least a summary of the 150,000 new laws every year and this one just slipped by you somehow.

Once you’ve joined the ranks of those bruised but not destroyed by our country’s freefall into the pit of tort, go underground.  Never let it happen again.  In your own existence, at any rate, make the lawyers irrelevant.  Make the law irrelevant.  Make the lawmakers themselves irrelevant.

Don’t be taken in by persistent activists and their agendas, the clamoring newscasters, the glitz of the self-worshipping entertainment world.  Don’t write to your representative or senator and complain about the complexity of the system.  Chances are, the one maverick in every legislature, who might sympathize with you, is not from your district anyway, and that maverick will not be re-elected.  Chances are your own legislator will quietly turn your letter over to an office charged with investigating kooks like you.

If you haven’t yet ended up with a criminal record over something petty, take these same steps pre-emptively to distance yourself anyway.

I am advocating passive, not overt, resistance.  Where possible, practice malicious obedience – paying your property taxes in pennies is the classic example, even though only the town clerk suffers, not the buffoons who write law.  I also advocate responsible citizenship, the kind of community-minded, family-centered citizenship that was envisioned and practiced by most of our forebears — simple, humble, civilized people who, a century before I was born anyway, never could have believed that legislators, regulators, and attorneys would be unleashed to create the runaway cancer that is our current body of law.

This is the cancer that will consume us.  This is the decay that, absent a natural disaster of global proportions or international political catastrophe, will destroy us.  You will not stop it.  You may survive it, and not by stockpiling water and bullets, but by staying out of its way.  You will not be irresponsible if you look out for yourself.  Earn your paycheck — (errr, direct deposit).  Raise your family.  Save something of value to use as a medium of exchange when the digital money system collapses and to pass on if that collapse doesn’t come in your lifetime.  Practice local charity by giving to someone in need.  (Surely you know someone who deserves an anonymous handout.)  Serve on the parade committee.  Teach Sunday school.  Read.  Be a scout leader.  Learn another language.  Travel.  Support the French club’s trip to Europe.  File a short form.  Plan for retirement and nurture a couple of innocent hobbies to pursue when you’re old.

Your Mission: Survive

Life on Earth is fleeting. Survive this chapter and turn the page. There is an eternity beyond time and space, waiting to receive you.

Unless… Unless you’re that one person in ten thousand who may be able to make inroads into the system and jam its gears.  If you’re near retirement age, consider going to law school, if only so you can become a member of the bar and needle it from the inside.  Do that, and you just may enjoy ten or twenty years of malicious fun in retirement.

=David A. Woodbury=

Ignorance of the Law

is an excuse, if you’re a congressman.

And not only an excuse, but grounds for acquittal.

We’ve all heard it: Ignorance of the law is no excuse. Well, in 1978 a federal district court judge ruled that a defendant must be acquitted if he had acted in good faith believing he was not violating any law. Those are the judge’s words, not mine, and the judge’s ruling has not been challenged. It stands as legal precedent. 

The defendant should have been more familiar with the law than most of us commoners; he had already been a congressman for 24 years when he became the subject of the judge’s definitive decision.

In what follows, I am making no judgment or comment on the merits of the case.  The jury acted on the merits.  And all references to the congressman’s race are integral to the newspaper report and the biographical clip that follows it.  I am only quoting the two passages to substantiate that ignorance of the law is an excuse, according to a federal District Court judge, whose ruling has the force of law.

Bangor Daily News Weekend Edition, October 7-8, 1978
DIGGS CASE JURY BEGINS DELIBERATION – Washington (UPI)

A jury Friday began deliberating fraud and false payroll charges against Rep. Charles Diggs Jr., D-Mich., under instructions they must find the black leader acted with specific intent to defraud the government in order to return a guilty verdict.

Congressman Diggs

Judge Oliver Gasch [U.S. District Court for the District of Columbia] instructed the jury of 11 blacks and one white to return separate verdicts on each of the 11 counts of mail fraud and 18 counts of filing false payroll vouchers in an alledged [sic] scheme to inflate salaries of five employees so they would use the excess money to pay Diggs’ official and personal bills.

Gasch said if jurors found Diggs acted in good faith believing he was not violating any law they would have to acquit him even if his actions actually were illegal. [emphasis added]

Prosecutor John Kotelly told the jury in his final argument that Diggs’ testimony that the employees paid his bills voluntarily was “preposterous.” He urged juors [sic] to ignore the civil rights and congressional accomplishments of Diggs in reaching their verdict.

“What kind of integrity does a man have who is living off his employees’ salaries?” Kotelly asked.

He said the evidence was “overwhelming” that Diggs, 56, a congressman for 24 years and founder of the Congressional Black Caucus, intended to defraud the government. “If this were a testimonial dinner, one could applaud Congressman Diggs for his accomplishments,” Kotelly said. “But this is not a testimonial dinner.”

Earlier, Coretta King, wife of the slain civil rights leader Martin Luther King Jr., U.N. Ambassador Andrew Young, Chicago civil rights leader Jesse Jackson and Detroit Mayor Coleman Young appeared as character witnesses for Diggs and hailed his record.

In his final arguments, defense attorney David Povich said the words of the character witnesses may have been so compelling as to raise a reasonable doubt about Diggs’ guilt notwithstanding any other evidence.

Povich told the jury that no law prohibited Diggs from allowing his employees to pay his expenses voluntarily out of their salaries although this was contrary to the Ethics Committee’s advisory opinion that was published in July, 1973.

courtesy of the Bangor Daily News and United Press International

[End of BDN report. Note that the photo included with the original newspaper article, which depicted the congressman in a distressed state, has been replaced by a more respectful representation of the man.]

Epilogue

From the African American Registry:

From Detroit, Michigan, Charles Diggs Jr. was the son of an undertaker and respected father in the Motor City area. Young Diggs attended Miller High School, the University of Michigan, Fisk University, and Wayne State University; earning a degree in Mortuary Services in 1946. He joined his father in the family mortuary business, and then won his father’s seat in the Michigan senate in 1951. Early on, Diggs was a strong voice for civil rights.

He attended the Emmett Tills murder trial as an observer and was diligent in awakening the conscience of the national Democratic Party; part of this effort allowed the opening of a second [b]lack-majority voting district in Michigan following the 1960 census. Diggs was the key player in organizing the Congressional Black Caucus (CBC). However early in 1978, he faced charges of diverting $60,000 in office operating funds to pay his personal expenses. Though convicted of the charges he still won re-election that year.

Diggs appealed his conviction, was eventually censured by the House, and stripped of his committee memberships; he resigned his seat in 1980 after twenty-five years in Congress. He was sentenced to five years in prison and was released after serving seven months. Afterwards, Diggs opened a funeral home in Maryland and was indirectly involved in politics; he also earned a political science degree from Howard University.

Charles Diggs Jr. died of a stroke in August 1998 and was eulogized warmly by Black colleagues from across the country.

Inasmuch as the Diggs trial resulted in a conviction, the jury did not violate or ignore the judge’s instructions.  They simply did not buy the argument that Diggs acted in good faith believing he was not violating any law.

The point still stands: If Congressman Diggs believed he was not violating any law, then, according to this federal District Court judge in Washington, D.C., his ignorance of the law was the excuse that would have justified his acquittal.  Take this ruling with you when you some day have your day in court.

=David A. Woodbury=