Sardonicus, otherwise known as commenter Jonathan, at his blog Sardonic Ex Curia, takes a look at the avalanche of criminal laws that transforms most of us, unknowingly, into unconvicted felons:
Consider the concept of “promulgation.” St. Thomas Aquinas stated in his Summa Theologica defines the essence of law as an “ordinance of reason for the common good, made by him who has care of the community, and promulgated.” Further regarding promulgation, Aquinas states that “in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation.” Aquinas takes his definitions from the Decretum of Gratian, published by Gratian in roughly 1139 (which is, of course, debated by scholars).
Reasonably, it seems to me that there are two concepts contained in the idea of “promulgation.” One is the act of making a law public, the other is the ability of the public to know and understand the law, the latter a function of the complexity of the law and the time to learn to adjust one’s behavior in accordance with the law. This occurred to me after reading the following passed, from James Madison in The Federalist, no. 62:
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if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulgated, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow.
As diverse authorities as Jeremy Bentham and Blackstone agree with the ideas behind this statement.
Obviously then, the American political tradition is replete with the necessity for promulgation, both by announcement and by permanence. Blackstone, a jurist much admired by the American founders, cites the following anecdote by Cassius Dio regarding Caligula in his own discussion of promulgation:
But when, after enacting severe laws in regard to the taxes, he inscribed them in exceedingly small letters on a tablet which he then hung up in a high place, so that it should be read by as few as possible and that many through ignorance of what was bidden or forbidden should lay themselves liable to the penalties provided….
The difficulty of the sheer number of federal crimes, as discussed above, is the average person’s ability to know them, or guide their behavior accordingly. (Note: for the purposes of this post, I am including statutes which produce fines, as well as imprisonment.) For example: in August of 2011, a girl, age 11, discovered that her cat was about to eat a baby woodpecker. In order to save the bird, she placed it in an empty cage. Traveling from her father’s to her mother’s house, she was confronted by a U.S. Fish and Wildlife employee in a Lowe’s with the bird, and the girl promised to release the bird. Two weeks after releasing it, the same employee showed up with a state trooper at the mother’s house, with a citation for the mother. She was summoned to court, ordered to pay a $535 fine for violating the Federal Migratory Bird Treaty Act; and she also potentially faced up to a year in prison. The Fish and Wildlife Service later cancelled the ticket and apologized.
In a less sanguine outcome, the Sacketts were a couple who purchased a lot near a lake in Idaho. They began grading the lot, but were suddenly ordered to cease by the Army Corp of Engineers, who claimed that a wetland was on the property, thus enabling the EPA to halt construction and demand that the Sacketts return the land to it’s prior state. The EPA refused to give the Sacketts a hearing, and asserted that the EPA could extract a daily $37,500 fine, or double, if the Sacketts refused to comply with the order. The case went to the Supreme Court on the sole issue of whether the EPA could prevent the Sacketts from suing the agency until the EPA decided otherwise. The Court decided 9-0 that the Sacketts could seek judicial remedy. The case is still ongoing, so the EPA may potentially be permitted to impose the penalty for failure to comply. The Sacketts claim that there was no way to know the land they purchased was subject to EPA jurisdiction.
These are by no means isolated incidents. They show what happens both when excessive numbers of laws are passed, and when people’s natural behavior becomes criminalized. In his notes on promulgation, Blackstone notes several ways that a law might be made known to people:
But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament.
The enforcement of laws of which people cannot know, and which criminalizes behavior far removed from what seems criminal is problematic. Many great legal reformers have realized this, and both simplified laws and condensed the number of laws, so that the people might know them. Aquinas himself argues that a law which fails to be promulgated loses its force, saying:
Now a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Wherefore promulgation is necessary for the law to obtain its force.
Go here to read the rest. This is the product of living under a regulatory state where the law no longer is used only to punish what most would consider criminal activity, but also is used to regulate behavior where most people would be astounded to learn that criminal penalties attach. Thus the law is transformed from a weapon to punish evil doers into a tool of harassment at the whim of Federal bureaucrats. As we have seen from the misuse of the IRS under the current administration, this is an open invitation for regimes to punish and harass those who dare speak out against them. How to correct this? All Federal legislation with a criminal penalty should have a sun set provision of 5 years unless repassed by Congress and no regulation should have a criminal penalty attached to it, unless specifically passed by Congress.