By Stephen L. Hall
The United States Code, fully annotated, takes up approximately twelve (12) bookshelves in the law library. That does not begin to account for the much larger voluminous rules promulgated by the agencies to interpret those laws, the even larger regulations to clarify those rules, or the massive volumes of court cases where lawyers have squabbled over the vagueness and meanings of those laws, rules, & regulations, which pretty much makes up the rest of that legal library.
All in the name of clarity and simplicity.
What people easily forget is just how recent this phenomena is in the annuls of human history and the civilized world of words. In comparison, let us examine the growth of the West Virginia Code, which was recodified and reorganized in 1931 when the Democrats took control of the state after 68 years of Republicans dominating the state government. The entirety of the code was two (2) books, fully annotated. In the present day, that two volume set has expanded to take up an entire shelf and a half of space.
When the state came into existence, the entirety of the necessary judicial procedures, including appellate procedures, was five pages printed in the very first volume of the West Virginia Supreme Court case law book. Now, there are whole booklets just dedicated to the precise rules of just the Supreme Court alone.
Many people view the “job” of any legislature as “making law”, that means passing new laws and adding every year to this volume of complexity. Legislatures are even judged by the media as to how active and productive they have been in passing legislation. Every reader has heard the derogatory phrase of “a do-nothing Congress”, or legislature if a state, used to belittle and deride any legislature which does not add significantly to this voluminous collective work.
What ever would the founding fathers say? Fortunately, we do not have to guess. They told us already.
“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. 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if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” Federalist Paper #62.
Which brings me to the topic which prompted this post in an article by Jillian Kay Melchior where she reports that a Judge OK’s Petition for America’s First ‘Genderless’ Person. It is not that something blatantly stupid, aka politically correct, would come out of a Portland, Oregon judge; that is pretty much expected. What strikes me is that a judge thinks he even has the authority to define the words, in this case adjectives, of the English language.
I would like to imagine that he was alone in his hubris, but it is an arrogance far too common in legal, judicial, and legislative circles going back decades. I say decade because, contrary to what they will glibly tell you, this is a relatively recent phenomena, and by recent of course I mean only the last century or so. To me that is so recent as to be a novelty.
To illustrate the point, I would like to partially relate to you a couple assignments of my classes in law school. In one case scenario, the question which we were supposed to argue turned on the definition of an ‘enterprise’ under the federal RICO statute and whether the motivating factor of an organization labeled an ‘enterprise’ must have a financial or commercial motive to be thus classified. A ‘profit’ motive would necessary to be an ‘enterprise’ under RICO, just as a ‘political’ motivation becomes the basis for labeling something terrorism or not.
But is not motive irrelevant to the basic elements of a crime? It is, but the legal types try to squeeze irrelevant criteria in under the definitions. To differentiate that one organization is political while another is commercial, opens up a whole new subjectivity to the law. Isn’t that what Lois Lerner was claiming about the 503-C status of those Tea Party organizations?
What is it that the leftist complain about the Citizens United case but that the Supreme Court held that ‘corporations’ were actually ‘person’ for First Amendment freedom of speech rights regarding their participation in political campaigns?
Often the courts will hold someone or something to be a ‘person’ or ‘enterprise’ under one statute, but not so under a different statute. This has the common man looking at lawyers and judges as if they were complete idiots because of the ludicrous inconsistencies from one law to the next. And they are not wrong.
There is no consistent, rational way a company can be a person in one instance and not in another, but that there is no real definition of these words. Which is actually to say that there are many definitions of the words, but they are often different.
I started this post writing about the volumes of laws and how out of hand they have become. Part of the reason for this is the penchant for lawyers to think they have the power and authority to define words. Virtually every modern code section now begins with a very lengthy definition section to define for purposes of that section of code, and that section of code alone, the words to be used in that section of code.
Usually, this follows a rather meaningless statement of intent and purpose of that section of code just in case the courts will later debate over the actual purpose of the law rather than the words written in an attempt to render their actual words more meaningless.
Interrogatories passed between lawyers in discovery often contain definition sections, some that I have seen are many times larger than the actual list of questions. Modern contracts often begin with similar definitions of terms used in the contract, to tell the court just how to interpret these words when an issue arises.
Eliminating these sections of code would likely reduce the volume of the codes themselves by a good 10-20%, if not more so.
But what puzzles me is just when lawyers got it into their heads that they could actually define words, that they had that authority and power.
In the early days of the creation of the first dictionaries, Johnathan Swift, being an Englishman transplanted to Ireland, took the opportunity to take a derogatory swipe a the Scottish in his definition of the word “oats” as something a Scotsman eats, but an Englishman feeds to his horse. I generally feel that all of the “legal” definitions deserve to be taken just as seriously as Mr. Swift’s definition of oats.
Words are defined by culture, by a common understanding of a people. They only have any true meaning if those definitions are universal and consistent. No government has the authority to dictate language and the meaning of words. Language is cultural, not legal. The left tries constantly to make up words or change their definitions to keep people from ever actually discussing any real issues.
When any person or group, whether judges or the media, decide that they have the power to change the language, something really weird begins to happen. The minds of such persons begins to twist and warp. There is created a hubris within them that because they believe that they can change the language, then they have the power to change the reality of the things themselves.
Such people begin to believe that words have a magical power to shape reality rather than a perceptive description of an objective reality. People begin to think that if they can change gender pronouns, then they can change their gender. Courts think that if they can define what is a person, that reality follows their words.
A video posted on this blog last week in the comment section shows a man yelling at teenagers that an unborn child is just a clump of cells. He believes it, because he has accepted that as the definition.
Words can dominate a person’s perception of reality. They do not change reality. Allow words to define reality, rather than reality to shape your words, and your mind enters a state of delusion, a denial of reality itself.
