"The facility and excess of law-making," wrote James Madison (The Federalist, No. 62), "seem to be the diseases to which our governments are most liable." "It will be of little avail to the people," he added, "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." After two centuries, the law-sickness already prevalent at the birth of our nation threatens to become a terminal malady. The illness can be alleviated by a Committee on Repeal.
In every legislative body, there should be formed a committee whose sole duty is to recommend laws for repeal. It would be better still if Congress, every-state legislature, every county governing body, and every city council would spend 90 percent of its time on repeal.
The necessity is apparent. In the 1920s, when the California legislative sessions were biennial, the legislature still managed to enact new laws every two years that required a thick volume to print. Now no single volume would suffice. Multiply the annual output of 50 states. Add the statutes passed by Congress every year. Throw in county and city ordinances. The sum is a conglomeration of laws that nobody knows much less understands.
The statutes are only the initial sickness; their interpretation by the courts adds the complications. In enacting a large volume of law, legislators perform the task so ineptly that the statutes invite litigation about interpretation and sometimes constitutionality. To add to the law and the confusion, courts pour forth opinion upon opinion, which are endlessly appealed. Not to be outdone in the zeal to enact, the courts have come to legislate under the guise of decision.
Such is the volume and complexity of our laws that nobody—not any lawyer, not any senator, not the Chief Justice of the United States—could pass an examination on the whole subject. On December 31, 1984, it will be a rare California assemblyman or senator who will be able to recite the list of laws passed by the California legislature for 1982 and 1983 and their full import. Even the two or three who might be able so to recite could not withstand cross-examination on their knowledge. And only a few lawmakers understand the content of the bills on which they vote.
The mischiefs from our multiplication of laws are pernicious. It has become commonplace to depict the United States as a land whose productivity is heavily burdened by carrying a huge bureaucracy on the back of the staggering body politic. The picture is accurate; the culprit, mischosen. The parent of our bureaucracies at every level of government is a legislative body. Blame the parent, not the child.
The bureaus do indeed create thousands of new laws by regulations. Again, however, the fault is not the bureaus or the regulations in themselves but the statutes spawning them.
This rabbit-like breeding of laws filches from the pocketbook of the tax payer. If all the state legislatures met only long enough to pass the required budgets, the financial benefits to the people would be enormous.
And the deleterious effects of our addiction to laws extend beyond our purses. The swarm of laws has completely broken down the administration of justice. In Los Angeles County, for example, it takes five years after a civil case is at issue to obtain a trial before a jury. With getting to issue and appeals, add at least three more years. Justice delayed is justice denied.
The length of litigation adds to its cost, as well. A lawsuit for the average citizen is a catastrophe. Anybody with a grain of financial sense attempts to stay out of the courts.
We boast that we are governed by law. The boast is true on paper, untrue in fact. As the laws increase, their enforcement declines.
This state of affairs cannot be changed without a drastic alteration. Today, an incumbent seeking reelection cites as evidence of his merit the bills he has introduced. A wiser electorate would instead give the legislator a demerit for each law he has helped to pass and a credit for each he helped repeal.
To create such a public attitude we need a nonpartisan citizens' movement for the Committee on Repeal. Its object would be the repeal of about 90 percent of our laws. That would be a blessing in itself. In addition, keeping our representatives busy repealing laws would give them a lot less time for legislating mischief.
Laurence W. Beilenson is an attorney and a long-time student of history and politics. His books include The Treaty Trap and Survival and Peace in the Nuclear Age.