MAKE LAWYERS -- AND “THE LAW” -- IRRELEVANT
Sooner or later we have to wean ourselves from the assumption that only lawyers can interpret the law.

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.

This is not anarchy. This is a practical response to gibberish. A government ought to know how and when to make law, and especially where to stop. Our state and federal governments each apparently operate under an assumed production quota that has not been met. The crafting of law has given way to the crafting of coalitions between factions with opposing agendas. Legislatures no longer craft law, they pass “acts.” Unregulated regulators turn acts into volumes of rules presumed to achieve what the coalitioning legislators thought they were passing.

(The first, usually erroneous, assumption of a legislature is that there is a problem. The second assumption is that it cannot be resolved without government intervention. The third assumption is that the appropriate intervention is a law. The fourth assumption is that a decisive law is to be avoided and substituted with a compromise. The fifth assumption is that the legislators are exempt from writing the law themselves but must hand that task to bureaucrats through enabling legislation. If the first three assumptions were challenged honestly, there would be a lot of idle time, and a lot fewer government employees, in Washington.)

One side’s bill is blended in conference committee with the other side’s opposite bill until the bristly points of either have been trimmed to stubble. It’s as if the Republicans have decided that what everyone needs is a pig. The Democrats have decided that what everyone needs is a Chevrolet. The Republicans argue that the pig is talented and reduces garbage to soil and can feed a family in a pinch. It even makes gas, whereas a Chevrolet burns gas. The Democrats argue that you can ride in a Chevrolet - (ah, the Republicans interject, but you can ride *on* a pig!) - and a Chevrolet goes faster than a pig. What eventually emerges from legislative compromise is a Pigrolet. It might look like a car with a curly tail and at least a couple of cloven hooves for wheels. Metallic blue side panels morph into skin, which accounts for the budget overrun, because nobody realized in conference committee that this would require some scientific investment. It won’t go anywhere, because there are lungs under the hood in place of an engine - compromise, you know! Mostly metal and plastic (and hooves and tail), it’s inedible. The seats inside are filled with proud legislators, jostling for window space and smiling for a photo op.

Heck, compromise in a legislature is like marrying garlic and chocolate. These may be the two greatest flavors in the world, but there's a reason why they are not cooked together. But, again, the Democrats would say that we all should have garlic, and the Republicans would say we all should have chocolate, and the compromise would be... something to make you throw up!

Instead of this institutionalized ineffectiveness, one side’s bill or the other’s should simply be passed in its entirety. Give us the whole pig, or the whole Chevrolet. If it’s good legislation, it will quickly accomplish what it set out to do. If it’s bad, it will be 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. (Taking turns getting your way might work. It’s what we learned in kindergarten.)

The chief responsibility of all legislatures, though, for the next hundred years, ought to be a moratorium on passing new bills and, instead, the careful review and dismantling of all laws and acts now in force. At the most, a new law should be permitted only insofar as it replaces an existing act with one that can be demonstrably understood by a majority of high school graduates, since enforcement is chiefly in the hands of just such individuals. (Try this: assemble a separate committee of high school graduates to test read each new act and the regulations that purport to support it.)

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, but that’s another tirade.)

It’s probably not the laws that you will unwittingly violate. They’re only acts anyway, with grandiose titles, as if “An Act to End Air Pollution,” by its very passage, accomplishes its objective. An act such as that is merely “enabling” legislation, which enables a cadre of un-elected zealots to “craft” the body of regulation calculated to end air pollution.

Here’s how you can, then, run afoul of the “law.” Say you’re a director of nursing in a hospital. You want to prevent injury both to patients and to your employees. You want to do so because you don’t want to go to jail, you want to act responsibly for your employer (and keep your job), and you’re a decent person anyway. You cringe, for instance, at the image – and, if you’re a manager of nurses, you’ve been-there-done-that – of a weakened patient sitting on the edge of a bed and sliding helplessly toward the floor as you lunged to arrest her fall.

Now you’ve just read a summary of and grasped the evanescent logic of a patient’s civil rights. By this body of law, you are told that a guard rail on a hospital bed is permitted for patient safety. In fact, if you don’t adequately provide for patient safety, the same law, and others as well, describe penalties for non-compliance. But if the patient tries to get out of bed, even against a doctor’s orders, the guard rail has become an illegal restraint. Your staff nurse did nothing illegal by raising the rail. The patient made the rail illegal by attempting to get past it.

You try to explain all this to your staff. They listen with deference but also with incredulity. The logic you earlier perceived, fleetingly, escapes you now. You say it’s the law. Well, it’s not the law. It’s the regs written to implement the law, which in itself is a vacuous document. And by the way, the rail is not illegal for a regular patient bed, (except when it becomes a restraint), but it is an illegal device altogether if that same bed is used as a “swing” bed – in hospitalese that’s a bed and room that may be used for a regular patient some of the time and a different kind of patient another time.

Understand?

Wherever you are, U.S. citizen, at any given moment, you are subject to thousands of regulations just as clear and just as insidious as that. Do you need to discipline 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 your grandmother in Estonia just send you some family heirlooms? Did you just shoot a skunk out back of the barn? 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 set the standard for it. Now any government regulation can be just as incomprehensible and get away with it. (And I do mean deified. A few years back, as administrator of my employer's benefits plans, I asked an attorney a benefits question regarding the tax consequences of doing something. The lawyer said he thought he could get me an answer from someone very high in the IRS. The next day he called me and, with near-breathless excitement, told me that he had indeed spoken with some very important IRS person in Washington – a veritable high priest in the sect. It was a qualified answer; the holy man of taxes didn't have enough information about our situation to be definite, but, short of a private ruling letter, which only applies to the private entity involved, it was the best answer my lawyer could give. For my deacon's (lawyer's) time and his access to the suffragan bishop of IRS, my employer paid a couple hundred dollars and still didn't get a definite answer.)

It’s not that any enforcement agency will ever catch up with you. The conventional enforcers, 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.

You’ll be caught once someone auditing your actions, (a nosy neighbor, your ex-husband’s girlfriend’s daughter, the state revenue department, a credit reporting agency), notices that you did it. Did you write a check to pay the kid mowing your lawn? Did you tell your neighbor you scooped the skunk into a garbage bag and tossed it out with the trash? Did you compel your daughter to replant the neighbor’s flowers 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 if the offended party is the government, a tort lawyer if it’s an irate individual), will magically locate the law you violated and will charge you with the crime.

Once it reaches this level, there is no use resisting. You’ll be named in the court news. 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 protesting not your ignorance but your chagrin and regret. Don’t whine. Argue that you make a point of reading at least a summary every year of the 150,000 new laws and this one just slipped by you somehow.

Once you’ve joined the ranks of those bruised but not destroyed by our country’s free-fall 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. Live out the rest of your life in obscure oblivion. Keep your income too low to attract attention and your actions too boring.

Don’t be taken in by indignant 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 in court over something petty, take these same steps to distance yourself anyway.

I am advocating passive, not overt, resistance. Where possible, practice malicious obedience – pay your property taxes in pennies. (I've heard a story about Mohandas, Mahatma Gandhi. The workers on the Indian railway system complained to him that they weren't being paid, or some such injustice. Gandhi said to them: "You have a rule book, don't you? Go by it." They did, and simply following the rules shut down the whole Indian railway system. That's malicious obedience, unpunishable and just as effective as civil disobedience.

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 or two ago 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 or international catastrophe happening first, 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. Do your job. 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 individual charity and random acts of kindness. 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.

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

But if you can't become a lawyer and, in effect, wag the dog, stay out of their way and let them consume themselves.

[See related rants, Home to Roost in Augusta and Two Maines to Part Ways!]

2002
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