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Wednesday, September 23, 2009

End legislative malpractice by amending the Constitution

From University of Tennessee constitutional law professor Glenn Reynolds, aka InstaPundit, an item with which I fiercely agree (ellipsis his):

DAVID POST: Should Lawmakers, Um, Read the Laws They’re Voting On?

Sounds like something you’d ask in a third-grade civics class. But an odd editorial in today’s Washington Post takes to task “a group of well-meaning professional activists — and, so far, over nearly 60,000 online petitioners” who have demanded that members of Congress sign a pledge “never to vote on any bill unless they have read every word of it.” While the activists “have a point,” the Post concedes, their “proposal would bring government to a standstill.”

That’s not a bug, it’s a feature ....

Every time I deal with a federal statute in the context of giving legal advice to a client — which is an utterly basic function of being a lawyer — I have to actually read and then understand the statute. My failure to do so would be malpractice per se — something absolutely indefensible, something never excusable under any circumstances. As soon as I admitted or it was otherwise proven that I didn’t read and understand the statute, the only question in a malpractice case would be the size of the damage award against me.

But if that’s an utterly basic function of being a lawyer who merely advises private clients on how the law may or may not apply, shouldn’t it be an even more basic function of a law-maker, a legislator, who creates the laws that apply to an entire country?

By no means am I saying that all legislators therefore must be lawyers. (They certainly already have staff lawyers to help them if they need or want such help.) But if an educated layman, with careful and close study, still can’t parse through the language of a bill and figure out what it does, and how it does what it does, then that says something awful and disqualifying about the legislator, the bill, or both.

A simple pledge, though, would be about as credible and enforceable as Obama’s promises that health care reform won’t add a single dime to the budget — which is to say, a cruel and illusory farce capable of taking in only the most simpleminded and naïve.

Accordingly: I would genuinely support a Constitutional amendment which required every Congressman and Senator, upon casting every vote, to swear under penalty of perjury — with existing perjury criminal penalties, PLUS instant disqualification from office — that he or she had read every word of everything he or she voted upon. Not just a summary (although they could read summaries too, if they chose) or a recommendation (again, fine as a supplement, but not as a replacement). Enforcement to be by a mechanism where 10% of either chamber’s members could indict and prosecute any member of either chamber for an alleged violation, trial to be held within 30 days on national TV, finder of fact to be a jury of 51 randomly selected voters (one from each state plus the District of Columbia), conviction and expulsion (without appeal) to be based on a simple majority vote.

For a bullet-proof practical defense — and indeed, perhaps even a prophylactic "safe harbor" provision written into the amendment or its enabling legislation to guard against unfair and untrue accusations — every legislator only needs a video camera to record him or her with an over-the-shoulder view of the text he or she is reading and the pages he or she is turning, perhaps with a side-shot of the notes he or she is taking too.  The videos can be posted on C-SPAN or YouTube along with congress.gov.

Note well: This is, and should be, a completely non-partisan "good government" issue. But I'm relatively sure which party's politicians would bitch and moan the loudest and fight the hardest.

Posted by Beldar at 09:47 PM in Congress, Current Affairs, Law (2009), Politics (2009) | Permalink


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(1) Daryl Herbert made the following comment | Sep 23, 2009 11:27:01 PM | Permalink

I would only support such a bill if legislators could vote "no" without reading the bill.

They should have to read the bill to vote "present," though.

(2) Gregory made the following comment | Sep 23, 2009 11:39:18 PM | Permalink

It sounds like a good idea to me. But actually, I would change the thrust of your amendment slightly, and say that Congresscritters should be allowed to not read the whole damned bill if they were going to vote NO! on it provided that the bill (a) introduces new law and not only amends or rescinds previous bill or (b) introduces earmarks and other forms of pork.

My reasoning is that if you're a supposed conservative, then voting NO! is probably the best course of action most of the time. Especially with Democrats running the show, but even if not. The fewer laws the better, is what I say.

(3) Gregory Koster made the following comment | Sep 24, 2009 2:12:11 AM | Permalink

Dear Mr. Dyer: I think you've left a loophole: not voting. Haven't read a bill? No problem: just don't vote. Pretty soon the Whips of both chambers would be busily arranging a new kind of "pair": "It's my turn to not vote." "OK, Sid, could you cover me on that fisheries bill coming up?" etc. I also think the criminal penalties might be overdoing it. Just removal from office and disqualification ought to be enough.

You also don't mention the Executive. Should the President face the same penalties for signing/vetoing legislation? That in theory and often in practice, is as important as creating the legislation itself. Next, why stop with laws? As you know the Code of Federal Regulations is as terrifying, if not more so than the United States Code. If you don't include the regs, you will just have laws that say, "The Secretary/Chairman/Director must prescribe regs..." letting Congress dance away merrily, while staff and the Executive do the dirty work of sausage making. So why not make the agency heads responsible for creating the regs subject to the same penalties? I can't figure out how you could "indict" them. You can't have Congress do so because of separation of powers issues. How about a really radical idea: make it an affirmative defense for any infraction of regulations or laws that the creators didn't read it? If anyone charged with a crime/infraction can show that the agency head or Congressional committee didn't read the law when it was created, with the video proof you've described, they walk, free to thumb a nose. This would give the citizenry some protection against the lemon squeezers coming out of the Executive/Legislative. Also, let the citizenry charge any elected official the same way, say 5% of the electorate can petition for such a trial. That might break up a tendency to coziness agmong the parties on Capitol Hill. Finally, let's get radical: make judges issuing warrants face the same requirements. They gotta understand the warrants they are signing. They don't it's automatically "not good behavior" and they get tossed out, no impeachment necessary. Patterico would shriek if he heard this, and no question, it would make prosecuting organized crime tough. But I see no reason why the citizenry must work for prosecutors. Given the gross abuses official immunity provides (see: Iron Mike Nifong), let some sweat roll down the judges and prosecutors's faces.

The real problem your solution addresses is the libertarian complaint that government does too much, and by trying to do everything, loses effectiveness (see: Cash for Clunkers, a gift to cynics whose stomachs are already sore from laughing.) It's quite true. One sign of this is Congresses and Presidents are judged by how much legislation they pass, more being better. Another sign is smirking at the story I've heard attributed to Coke Stevenson, Speaker of the Texas House of Reps: a bunch of Texas reps got into a fistfight on the floor. Stevenson sat in the chair smoking his pipe. Aren't ya gonna stop it, he was asked? Nope, said he, long's they're fightin' they aren't legislatin'.

The scheme isn't absolute proof against Congress. Take the famous Senator who was notorious for reading everything in Congress, and his lawmaking showed it: Richard Russell of Georgia. For all his great prowess, you'd have a hard time saying his career benefited the nation, or even his native Georgia.

Sincerely yours,
Gregory Koster

(4) Mark L made the following comment | Sep 24, 2009 6:37:51 AM | Permalink

Let me offer a modifier: "No bill becomes law until it has been read aloud in its entirety on the exterior steps of the Capitol building or such designated alternate, by a member of the legislative body that voted for it."

That would not only slow down the pace of legislation (not a bad thing in itself), it would also encourage brevity and clarity.

(5) steve sturm made the following comment | Sep 24, 2009 8:40:11 AM | Permalink

what's the expression, bad legislators make for bad amendments?

Sorry, but this is a bad proposal. 1 - It focuses on the process by which laws are enacted when the real complaint, as Gregory Koster points out, is with the substance and complexity of the laws, and requiring legislators to read the bill doesn't address either of those two concerns. Reading doesn't equate to comprehension, a legislator could read out loud (or listen to someone reading) every single word and still not understand the bill. So what good does this amendment do? 2 - there are huge flaws with the enforcement/punishment, how exactly would the prosecution prove the legislator didn't read the bill? A challenge to recall from memory the language from a certain page? Heck, I can't do that from books I've read many times. It violates the concept of the presumption of innocence, where the prosecution has to prove the accused guilty rather than the accused proving themselves innocent. How would the accusing Representatives prove their colleagues guilty of not having read the bill? 3 - Your proposed jury of 51 random voters is, sorry to say, a terribly silly proposal. As you grant a mere 10% of the legislature the right to make a challenge, given the level of partisanship, every bill would be challenged, which by itself isn't a problem, but it in effect bestows upon a random 51 voters the power to decide what bills become law and which don't and I have nowhere as much faith as Bill Buckley did in names out of a phone book. 4 - I don't have a problem with legislators delegating the actual drafting/reading to trusted subordinates. Just as I often trust my staff to make sure contracts and other material reflects what we're trying to accomplish, so too should a representative be able to rely on his staff and, if he wishes, trusted allies. Again, the key is not whether a particular Congressman reads each line but in the content of what is passed.

(6) Paul_In_Houston made the following comment | Sep 24, 2009 10:04:56 AM | Permalink

While the activists “have a point,” the Post concedes, their “proposal would bring government to a standstill.”

That’s not a bug, it’s a feature ....

Our state has sometimes been ridiculed for only having a part-time legislature, but I suspect the founding fathers of Texas knew exactly what they were doing; if we must be graced with these parasites, limit as much as possible the time they have with which to do damage.

I sometimes regret that they didn't follow the thought to its' logical conclusion.


(7) Paul_In_Houston made the following comment | Sep 24, 2009 10:18:58 AM | Permalink

I see a lot of objections in the comments above, but DAMMIT, it's at least a start. Alternative proposals ("nothing" should NOT be an option) should deal with Mr. Beldar's paragraph that begins with:

"Every time I deal with a federal statute in the context of giving legal advice to a client — which is an utterly basic function of being a lawyer — I have to actually read and then understand the statute."

WHAT in HELL is unreasonable about THAT?

People who cannot handle that have no business even running for an office in which they pass laws to rule us. Worse, those laws survive long after the idiots who create them.

If such a requirement would severely limit the number of people qualified to be in Congress, So F*****g Be It!

They have just too much power over us to accept less.


(8) Gregory Koster made the following comment | Sep 24, 2009 11:57:52 AM | Permalink

Dear Mr. Sturm: "Just as I often trust my staff to make sure contracts and other material reflects what we're trying to accomplish, so too should a representative be able to rely on his staff and, if he wishes, trusted allies."

Has your staff ever gone ahead and created contracts without your knowledge and approval? Or are you just the American version of Jim Hacker

Presumption of innocnece? So what? The Fifth Amendment sez private property shall not be taken without just compensation, which will come as news to anyone who has run afoul of a)state/federal asset forfeiture laws or b) lives in a "blighted" area. Already I can see a feature: get rid of the criminal penalties, just heave them out. No crime, so no innocence. That's baloney of the very best quality, and hence will be worshiped in the faculty lounge at Harvard Law...

OK, stick in the defense that a "no" vote doesn't count. What's your complaint then: that the volume of legislation will go down? Shocking. If they don't want to read legislative drafts, don't vote for it.

Whatever the defects of Beldar's proposal, this has the same goal as "A Modest Proposal" did.

Sincerely yours,
Gregory Koster

(9) kimsch made the following comment | Sep 24, 2009 1:39:15 PM | Permalink

Maybe the amendment should be that laws can not be "omnibus" and laws should be limited to a certain number of pages and be for only one thing, and that they be written so that any congresscritter can understand it.

(10) nk made the following comment | Sep 24, 2009 5:36:56 PM | Permalink

Sorry, Beldar, your proposal sounds too complicated to me. How about, every bill must be read out loud on the floor, both in the Senate and in the House, and no Senator or Congressman may vote on it unless he was present during the entire reading?

(11) Hrothgar made the following comment | Sep 24, 2009 7:44:31 PM | Permalink

1. How about no individual bill can contain more words than the Constitution of the United States?
2. How about each bill is required to contain a section detailing how the legislation applies (or doesn't) to members of Congress?

(12) Dafydd the Watchful made the following comment | Sep 24, 2009 9:46:00 PM | Permalink


I smell trouble. Suppose the Democrats concoct one of their infamous 1000-pagers. They write it within the caucus, and during that process, they ensure that every Democratic member reads it.

Then they dump it on the Republicans with a 24-hour deadline before the vote. Voila, no Republican can vote either for or against the bill -- and the Dems can pass anything they want with no opposition.

(They have 10% of the body standing by to issue an immediate challenge/indictment to any Republican who votes; if any is foolish enough to do so, he's expelled and prosecuted.)

Ah, but suppose you incorporate the change that members are allowed to vote "Nay" without reading; wouldn't that solve the problem? Not at all: The Democrats can offer a bill that gives the GOP nearly everything it wants; but then they dump it on them as above.

Republicans are forced either to vote Nay or not vote at all, because none has the time to read the entire bill in order to vote Yea. They're joined by all of the Democrats, and the GOP-friendly bill is rejected overwhelmingly.

(The Dems have the same squad of accusers ready to go after any Republican who votes for the GOP-friendly bill.)

And now that Congress has almost unanimously rejected all of the GOP's top priorities, the Democrats can move their own version... and refuse to allow any amendment inserting the GOP stuff.

Democratic leaders point out that they included all of those provisions in the previous, GOP-friendly bill -- and Republicans joined Democras in decisively shooting it down. So why should the majority allow any amendments?

Beldar, I'm surprised you haven't learnt the first rule of proceduralism: There is no proces that liberals cannot abuse.

And its corollary: The more complex and draconian the process, the easier it is for liberals to abuse it.


(13) Gregory Koster made the following comment | Sep 25, 2009 1:58:06 AM | Permalink

Dear Dafydd: The defense against your objection is Senate confirmations. The Dems try the stunt you propose, the GOP starts saying that every Dem nominee, no matter how qualified is "personally obnoxious" or less drastically, put a hold on all nominees. The GOP can also holler that the bills are being sprung on them without a chance to be read, the procedure is being abused. Finally, the Senate can go back to good old filibustering, in the old style, not the modern degraded versions that allow other business to go on. Could the Dems retaliate? Sure, but the wheel will turn. "Permanent" majorities? No such thing, though the Democratic hegemony from 1955-81 sure felt like it.

Sincerely yours,
Gregory Koster

(14) Dafydd the Cynical Syndic made the following comment | Sep 26, 2009 12:37:16 AM | Permalink

Gregory Koster:

Bah, I see your confirmations and raise you a "nuclear option!" The Dems pull the trigger where Republicans faltered; they get a ruling from the parliamentarian that you can't filibuster appointments, because the Senate has a duty to advise and consent (either confirm or reject). That takes care of that.

As to senator "holds," this is all "comity of the Senate" stuff; the radical Democrats can completely ignore it if they want and just shove appointees and bills onto the floor for a vote.

Sure, eventually it will all catch up with them and they'll lose the Senate; but that will likely be after many of the Democratic leadership is ready to retire anyway, so they probably wouldn't care.

The central point stands: There is no process immune from liberal abuse, and the more complex and draconian the process, the easier it is for liberals to abuse it.


(15) Gregory Koster made the following comment | Sep 26, 2009 1:46:38 AM | Permalink

Dear Mr. Dyer: Your post following this one has no comments, because you haven't fed Typepad and it is eating them...

Dear Dafydd: Granting much (not all; where was the liberal abuse of Senate procedure that kept the Fifteenth Amendment a dead letter from ca.1870-1965? Or was the abuse on the other side?) of what you say, where's the Lenins who are going to ram their way through confirmations and holds, terrifying the parliamentarian and the nation into submission? The image of Harry Reid with an eyepatch, a week's growth of beard distracting us from seeing Reid's own bloodshot orbs, but not our noses from smelling the reek of the back rooms, barreling onto the Senate floor, a pistol in each hand, dagger clenched between his teeth while Barbara "Call me Senator" Boxer carries the black flag and John "Did you know I served in Vietnam and got the Purple Heart" Kerry the irons with which Orin Hatch and Jim DeMint are to be clapped may terrify you, but alas, all I can dig up are snickers.

Cheer up, man! Being a cynic is a license to laugh, loud and often. There's no Robespierres in the United States Congress today. Such greedy clods as Charlie Rangel, or William Jefferson windbags as Kerry, ciphers such as Boxer are far more typical. The advantage to the cumbersomeness of the federal government is that it is hard to turn around. The One's administration up to now is the best point. All he's been able to ram through are bills that spend money. The horrible effects of this are self-evident, but they have been going on for years. The revolution you fear is still largely in your own mind. Fight 'em! The Tea Parties are having an effect. So is The One's overreach. ACORN is in bad trouble. The dismissal of Black Panther voter intimidation is having a backlash. The One, for all his hurling race cards, with a corrupt, bigoted press doing its best to smear the opposition, sizable majorities of Congressional toadies groveling, is barely making headway in ramming a revolutionary health plan down the nation's throat. We're in for a long haul, and the nation is going to take a dreadful beating by this foolishness. Best to laugh when we can. God knows the show will be gaudy and painful.

Meet me in the Senate gallery sometime, and I'll show you comedy gold. I'll bring the popcorn.

Sincerely yours,
Gregory Koster

(16) Paul_In_Houston made the following comment | Sep 26, 2009 10:44:10 AM | Permalink

Best to laugh when we can. God knows the show will be gaudy and painful.

Meet me in the Senate gallery sometime, and I'll show you comedy gold. I'll bring the popcorn.

Sincerely yours,
Gregory Koster

Amen, Sir:

When you can retain your sense of humor, and the other side clearly hasn't a trace, YOU are the one with the best chance to prevail.


(17) CatoRenasci made the following comment | Sep 28, 2009 8:21:41 AM | Permalink

Require the entire bill to be read, out loud, to the entire House or Senate, as the case may be, three times: when it's introduced, when it's voted on by the committee responsible, and again before it's voted upon. Then require all laws to be publicly read and available for comment for 30 days before they can be effective.

(18) jeff made the following comment | Sep 28, 2009 8:29:41 AM | Permalink

The underlying problem is there are just too many laws.

Too many regulations.

Too many agencies.

Too much government interference in our daily lives.

Liberty does not exist, and we as a nation cannot thrive, in the current legal environment.

(19) wilky made the following comment | Sep 28, 2009 9:02:42 AM | Permalink

Sorry I've onbly read about half the comments before I made this one. Sorry if its already been addressed.

How about writing laws that will be left online for two weeks so that every government educated adult can not only read but also understand exactly what the law says and does, with no changes after it first goes online. All our represtatives should read the bill in its entirely before voted on(I thought that was part of the job description), and abstain from voting if not read. A certain number of abtains and you are removed from office.

This is a government of the people.

(20) Naaah made the following comment | Sep 28, 2009 9:13:14 AM | Permalink

Why are you wasting time on silliness. It ain't going to happen, and you know it.

They don't read the bills 'cause they don't give a s**t about voters. They don't give a s**t about voters because gerrymandered districts give them life tenure in the aristocracy.

Focus on the real problem.

[Edited for profanity by blog proprietor, in accordance with standing guidelines. - Beldar]

(21) wmorrison8 made the following comment | Sep 28, 2009 9:16:03 AM | Permalink

Go to www.thomas.gov and look around.
This is a congressional shortcut, maintained by
The Library of Congress, and has a huge staff of writers
behind it.

(22) Malowe made the following comment | Sep 28, 2009 9:22:07 AM | Permalink

Limit the length of all bills to 5094 words. If it's good enough for the Constitution and Bill of Rights combined, it's good enough for any law passed by two legislative bodies created therein. Perhaps then the members would have time to each bill before voting on it.

(23) Doug Stewart made the following comment | Sep 28, 2009 9:27:25 AM | Permalink

There are two very simple reforms that I propose:

1) As others have stated, a bill must contain no more than a set number of words (the length of the Constitution is a good measure to go by)

1a) No bill may escape this clause by referencing other legislation, passed or pending, in order to slip more verbiage in.

2) Each and every piece of legislation MUST come at the expense of a previously-passed one, making legislation a zero-sum game. Want to pass new funding priorities for the John Murtha Celebratory Victory Garden And Memorial Humidor? You'd better think long and hard about which Save The Children law you want to knock off its pedestal in order to pass your crap.

(24) Andrew Hyman made the following comment | Sep 28, 2009 9:50:14 AM | Permalink

Per the late Robert Novak, commenting about the later Everett Dirksen: "He'd go back out on his screen porch in Leesburg, with an old portable typewriter and he'd take every bill that came out of committee, read the bill, read the report, and write a one-page precis on it."

(25) Andrew Hyman made the following comment | Sep 28, 2009 9:54:23 AM | Permalink

Robert Novak wrote this about Everett Dirksen: "He'd go back out on his screen porch in Leesburg, with an old portable typewriter and he'd take every bill that came out of committee, read the bill, read the report, and write a one-page precis on it."

(26) Andrew Hyman made the following comment | Sep 28, 2009 10:00:48 AM | Permalink

Oops, sorry for the redundancy. Read it twice!

(27) cubanbob made the following comment | Sep 28, 2009 10:35:01 AM | Permalink

Beldar if the Constitution is to be amended first order of business should be to eliminate gerrymandering at both the federal, state and local level, limit voting for the respective houses of representatives to taxpayers and that all laws passes apply to the respective legislatures without exception. The second thing is requiring that all legislation is to be specific to the topic it address, that it must first be reviewed by a specially created appellate courts in in their final version prior to being voted on for the purpose of having an advisory opinion. The simple test is does the legislation conform to the US and state constitutions? If not and the respective legislatures choose to pass the law, the votes in the affirmative need to be signed by the legislators personally with an explanation by them why they voted for it and the constitutional basis for their decision to vote for it. That all legislation have a cover statement explaining in plain language that the average person with a tenth grade education can understand what the purpose of the legislation is, what it is intended to accomplish, what its cost will be and that the cover letter be deemed as the explicit intention of the legislature of its purpose of passing the law for the purposes of the courts in determining the intent of the respective legislature. That agency rulings and regulations must also pass the same muster (with the agency head providing a written explanation on its purpose and derived source of authority and that the ruling conforms to the enabling legislation and its intent with the explanation of how it does so) with 90 days for comment prior to enactment. And finally the provisions that the constitution applies to the states, that no one can be deprived of their property without full compensation (as determined by a specialized court competent to make the determination, for example a bankruptcy or admiralty court) and that the taking must be for a specific public purpose and that it be paid by all members of the public and taxes are levied equally to all and none exempted (such NGO's and other tax exempts) and that while if it is agreed upon to limit the percentage of the total income subject to taxation to not more than 20% and to apply an exclusion of the taxable income a percentage or number to be determined by the respective legislature, the exempt amount can never be 100%.

One penultimate thought, all legislation in its final form should be made available to the public for at least 30 days (with a wartime or declared national, state and or local emergency exemption) for review prior to being voted on and that all rights and privileges belong to the individual (aside from non citizens and citizens with limitations on their civil rights such as convicted criminals and those judged to not be mentally fit such as institutionalized patients and minors and that any limitation on an individual's freedom must have a compelling state interest and that that interest be clearly defined and that all individuals be deemed equal under the law and all laws be equally applied, that there be no discrimination in favor of or against a person and that all legislative offices be deemed subject to recall elections (with the proper enabling procedures) and that all laws and regulations(excluding those for specific crimes that are deemed traditional such as homicides, rapes, thefts and violations of the public trust) be subject a review every ten years at the minimum or twenty at the maximum and if not renewed then to be deemed revoked.

(28) JIMV made the following comment | Sep 28, 2009 11:02:11 AM | Permalink

They could do something really revolutionary and write the bills in English and limit them to the matter at hand...

(29) David Starr made the following comment | Sep 28, 2009 12:15:48 PM | Permalink

The real problem is not that lawmakers don't read the bills, the problem is the bills are unreadable. Health care is 1100 pages of thickest gobbledegook. No one can understand that much obscure language. Plus, in 1100 pages you can find sections to justify anything under the sun.
There ought to be a way to limit the length of bills. Require them to be read aloud before a quorum in both chambers would do something to shorten them up. Or, require that no bill shall ever contain more words than the US Constitution.

(30) Lummox JR made the following comment | Sep 28, 2009 1:17:02 PM | Permalink

I agree that a pledge is unenforceable, but while I think reading the bills is a standard lawmakers should be held to, I'm not sure that would work much better. (At the very least, I would only require them to fully read bills they voted yes on. A no vote does not risk a bad bill becoming law.)

Instead I propose a simple Amendment for single-subject, truth in title (no more BS "for the children" laws), limited text, and other anti-chicanery stuff.
No bill may become law whose content exceeds two thousand words. No modification of existing law may increase the word count of the amended text, unless the result does not exceed two thousand words.

No bill may pass into law whose title is inconsistent with its subject.

No bill may pass into law which addresses more than one subject.

If one section of a law violates this Constitution, the entire law is nullified regardless of any language to the contrary. Where such language exists in laws passed prior to this Amendment, it is hereby void but its presence does not nullify the entire law.

(31) JM Hanes made the following comment | Sep 28, 2009 2:48:17 PM | Permalink


You are conflating Constitutional Law with Legal Codidfication, which makes for both bad law and bad Constitutions.

The Constitution establishes government structure, jurisdictions, and foundational legal principles. A Code incorporates the application of principles, the establishment of penalties and the mechanisms of enforcement. The separation of these two realms is the distinctive heart of the American system. No ordinary European citizen, confronted with the vastness of the proposed European Constitution could conceivably say, as Americans emblematically do, "I know my rights!"

The American system is really four pronged, not tripartite: Principle, legislation, execution and adjudication. The first is persistent, if not immutable, while the most effective working combination of the rest is necessarily determined by considerable trial and error. Frequent calls for Constitutional amendments are primarily generated by a desire to put what is really a piece of legislation beyond Congressional reach. Unfortunately, it also puts correctives almost entirely beyond their reach as well, should measures like those you outline above prove insufficient to the task or consequential in deleterious, unintended, ways.

Your own proposals would have to be amplified at length with definitions and mechanical specifics (what does "randomly selected" actually mean?), adding commensurate complexity at every step -- not to mention setting up constitutional & jurisdictional conflicts of their own (51 random people removing a duly elected representative from office?). Such measures would take up a tellingly disproportionate space in a one of the most powerfully streamlined documents in history -- all based on the defective premise that once you lead a horse to water, you can actually make it drink. Even if you could reliably make a legislator read or hear a bill, you cannot force him to understand it.

Solely for the sake of argument or illustration, if I were to design a possible amendment, I would suggest basing it on a concept more like this:

Before legislation is enacted by Congress it shall be published/promulgated in final form to the people X days before a vote can be taken.

As we are seeing at every turn, there are plenty of people available to deconstruct and analyze legislation, with expertise which transcends the competency of generalists in Congress. Ultimately, it is "the people" who need to understand the laws which constrain them, and it is within the purview of the people to make their wishes known to their representatives, and to replace those who turn deaf ears to their constituents.

Like almost everyone else, of course, when contemplating the universe of potential amendments, I have a hobbyhorse of my own! I'd like to see one which defines and explicitly protects an individual (not corporate) right to privacy.

(32) Ric Locke made the following comment | Sep 28, 2009 5:33:35 PM | Permalink

Count me among the "read it aloud" camp, except that I would require that it be read aloud, before a quorum of the House considering it, or half plus one of the members, whichever is the greater number, by a member of that House.

If nothing else, it would reduce the verbiage. Even double-spaced legal format is over 200 words per page. Do you have any idea how long it takes to read 200,000 words? Hint: Sam Clemens was amazed that typists could do 100 wpm, his rate of speech on the platform.

I have a few other thoughts along the same lines. My personal hobbyhorse(s) are gerrymandering and the size of the House of Representatives, but I think a lot of things could stand a bit of tweaking for better effect.


(33) JM Hanes made the following comment | Sep 28, 2009 6:03:17 PM | Permalink


"Count me among the "read it aloud" camp..."

Do you want to put fines for snoring in the Constitution?

There's a more substantive problem with reading bills out loud, however. Enormous portions of almost any bill are devoted to altering previous legislation. A detail like amending Section W in Act X by striking Subsection Y, then changing "and" to "or" in Line Z, is meaningless without access to the underlying code; it can also be the most transformative element of a bill.

Gerrymandering, though, does seem a worthy and appropriate, if unlikely, issue for Constitutional remediation.

(34) AST made the following comment | Sep 28, 2009 7:52:44 PM | Permalink

I keep wondering how the courts could examine legislative history to interpret a law when nobody in Congress, let alone the public, was given a chance to read and discuss it? If they don't have the time to know what they're voting on then they should quit passing so damn many bills! And quit adding endless off-topic amendments that could never stand on their own, including pork projects and earmarks. These guys remind me of Uncle Scrooge swimming in dollars in his huge money bin, except that they don't seem to realize that a lot of what they're swimming in is IOUs. Or maybe a better analogy would be to The Beagle Boys.

This whole nonsense of bowing to the demand of the President to pass a bill in 48 hours ought to be grounds to vote everybody in Congress out of office, and that includes George Bush's TARP bill.

These people work for us! They should at least have the decency to come and tell us why they want to borrow two trillion dollars on our credit before they do it! I believe that these huge amorphous spending bills had has much to do with making voters angry as the huge amorphous health care "reform" proposals.

(35) David made the following comment | Sep 29, 2009 2:20:23 AM | Permalink

Simpler: An amendment providing for an annual gathering of citizens under the auspices of Dr. Tarr and Mr. Fether to "celebrate" each new congressional session with all congresscritters required to be in attendance. I'd add heads of "feddle gummint" agencies, just to increase the beneficial effects a bit.

Sadly, though it would have an even more salutary effect on the federal government than requiring congresscritters to read all legislation before voting, such an amendment would have about as much chance of being passed: zip, zero, zilch.

(As to "reading" legislation, the point has been made above that "reading" doesn't necessarily mean "understanding"--and I'd say especially for congresscritters, as I'm not overly impressed with so-called congressional intelligence. I'm not alone there, either: "Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself." - Mark Twain)

(36) Daniel in Brookline made the following comment | Sep 29, 2009 12:59:03 PM | Permalink

Count me in with NR's comment: all bills must be read aloud, in their entirety, in both the House and Senate, before being voted upon. All bills and statutes referenced by the current bill must also be read aloud in their entirety. No one who is absent for the reading of a bill may vote on it. All such readings must be done on camera. Oh, and one more thing: the person who does the reading aloud must be an actual Senator or Representative; no ringers or designated hitters.

True, it's still possible to read aloud bills without understanding them. But now our elected representatives must be on record as having listened to this drivel before they voted on it.

I'm not terribly concerned with the length of bills. Let a few 50-page bills be brought up in this fashion, and the bills will be shortened automatically.

Can you imagine how much fun C-SPAN will become? Perhaps we'll have a special channel that tries to embarrass Congresscritters by filming their reactions to the bills being read.

Daniel in Brookline

(37) Mazzuchelli made the following comment | Sep 29, 2009 4:07:42 PM | Permalink

The best legislation is no legislation.

(38) Mark L made the following comment | Sep 29, 2009 9:06:05 PM | Permalink

Lets see if we close the open tag. . .

[Mark, I've caught it up closer to the source. Some moron blogger was indeed being sloppy with his html tags. -- Beldar]

(39) JEM made the following comment | Oct 2, 2009 10:18:57 AM | Permalink

I'd propose that not only should legislators have read any given bill, they should be required to pass a test on its content before being permitted to vote on it.

I'd propose something similar to the online traffic schools to which one is subjected when one is busted for 9mph over the limit on the 29th of the month in the middle of nowhere by some eager-beaver deputy sheriff.

The whole process of creating a test from the bill could largely be automated, and the remainder could be handled by some entity like the Congressional Budget Office.

And if this cuts the legislative throughput of our Congress by 90%, so much the better.

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