Even wanted to really understand the US Constitution? Well, you’re in luck.
The US Government Printing Office has released their “Constitution of the United States of America: Analysis, and Interpretation – Centennial Edition.” which contains cases current to 26-June-2013. Weighing in at merely 20MB and 2,830 pages (it takes 90 pages to get to the analysis), this comprehensive guide is a good start on your way to understanding what’s become of the charter and The Court interpretation of the formal (if not actual) functioning of USG in the last 2.25 centuries.
Thankfully the founders did not have PDFs or climate control, and having to write foundational documents with quills and under stifling conditions, kept the original seven articles and the bill of rights under a mere 5,000 words. This sentence contains twenty-six words which means the GPO would have to spend thirteen pages, some with tiny print, explaining it by their present ratio.
There is an apocryphal story about a Roman Emperor who placed the tablets inscribed with the law on top of a column so no one could read it. But in Soviet Russia, Secrets keep you, and there were indeed Secret Laws (don’t pay much attention to the Patriot Act nonsense in the article, it’s not the same thing.)
As someone recently said, “a bunch of old white guys called ‘the Romans’ …” thought about jurisprudential assumptions and came up with the presumption ignorantia juris non excusat – ignorance of the law is not an excuse.
It is easy to see why this principle was both useful and reasonable. Useful, because it prevented the universal loophole of a defendant claiming they were ignorant of the law and, having not been put on actual notice the the wrongfulness of their actions, could not be held to have the requisite intent (mens rea) to violate a community rule.
Reasonable because most laws (save for imperial dictats related mostly to taxes and warfare) were based in ancient and customary understandings of right and wrong, usually tortious harms of some kind or other, and behaviors the prohibition of which one would have become familiar with since birth.
Reasonable also because the law was presumed to be either publicly available and easily accessible to literate people and that, furthermore, while it may be a stretch to think that any one person could know all the Roman law, any individual thinking of embarking on some extraordinary venture (say, a new business) should be able to consult with a legal specialist (who should be able to know all the relevant laws in the field) in order to understand whether or not the activities of their enterprise would be legal.
The problem with 2,830 page explanations of the Constitution, or regular laws that run into the several kilopages, is that they is beyond even most specialist’s capacity to absorb and comprehend such a gigantic amount of content. You might as well stick them on top of columns. No one will read them.
In other words, they can be available instantly and freely to everyone on the internet, but at the same time, be ‘inaccessible’ to those people’s minds.
And forget law for a minute – how about trying to sign a contract these days. When you sign up for health insurance or, heck, even a mobile phone plan, could you understand the implications of the contract even if you were willing to read it (which nobody is).
Could you exercise your free will, give informed consent, and make a conscious, knowing and intelligent choice?
No. Nobody does this now -it’s all a fiction. A ritualistic preservation of some kind of obsolete process which has lost its fundamental essence.
Life becomes a chess match under such circumstances, and only the very clever learn how to hack and game the system, while everybody else is either ignorant of these tactics or feels like chumps for being insufficiently able to exploit them.
Why has society become so incredibly inaccessible? Because it is hiding something. It is hiding the fact that you really don’t have any say or input or power in most of your affairs. The government decides what is ok for a company to get away with, and then you take it or leave it. When’s the last time you actually read an EULA before clicking on the box where you promised you read and understood your obligations. Did you call your lawyer so he could help you by explaining the subtle implications of the tricky terms?
Nobody does any of this. There is no meeting of the minds. There is no understanding. There is no choice and therefore there is no power. But we still go through the old motions.
I ask a simple thing. Imagine the Accessible Society.
You can’t have an accessible society without some sort of external sourcecode. If the elites are able to edit the sourcecode at will, they will constantly do it to their advantage, rendering it opaque and hostile to everyone else, and even to most of the elites eventually, since it will become a tool in their internal squabbles. The original purpose, that of providing a flexible, reasonable and responsive framework for responding to the various difficulties to be met by the society, will be forgotten, making the society very fragile to disruption.
In 1723, Tzar Peter I the Great issued a decree. Here’s an excerpt, translated by Google from Polish and corrected by me:
“The owner of the Tula Factory, Kornil Bieloglazov, to be beaten with a whip and sentenced to labour at Monastyr, because he dared to deliver the Russian army poor quality muskets.
The senior military supervisor, Frol Fuks , to be beaten with a whip and banished to Azov for putting the seal on bad weapons. I command the Armaments Office in St. Petersburg to delegate a representative to Tula to guard the quality of the weapons day and night.
Let the military supervisors and their assistants diligently heed, how the controllers put the stamps. If they have doubts, let them check themselves through review and shooting of two muskets every month. Let them shoot until they break them.
If, despite the military gets bad weapons, that breaks during battle, without mercy, beat with lashes:
* the owner of the factory 25 lashes and a monetary fine, one gold ducat apiece,
* the senior military controller beat unconscious,
* the senior supervisor transfer to non-commissioned officers,
* the supervisor to make a writer, and his assistant deprive the Sunday portion of vodka for a period of one year.
The new owner of the Weapons Factory, Demidov, is commanded to provide for the supervisors and their assistants, their rooms not inferior to his own. If they are worse – let Demidov not be offended – I’ll have his head cut off.”
What you need is someone above the law, capable of righting systemic wrongs – a tzar.
‘What you need is someone above the law, capable of righting systemic wrongs – a tzar.’
They need not be ‘above the law’ at all, just authorized to make law, adjudicate trials, and enforce sentences for those under their jurisdiction. The ‘three branches’ of are combined in the traditional authority of a military commander. American commanders, even at the battalion level, enjoyed extraordinary amounts of discretion of just the ‘tzar’ level you describe until the UCMJ came out and congress and the courts gradually pared it back over the following decades. They still hold a lot of power over servicemembers.
But that’s just my point about the necessity of someone who is above the rules – if someone changes the rules, this person is still above them. None of this removal of authority which is based on legislation.
I was at this meeting for work where everyone in our department flew in. We discussed what amounted to a bunch of blatant scams (pricing and coverage strategies). At one point our department head said something that really stuck with me:
“Let’s try to remember what product we are selling here. We are selling a set of legal arrangements that nobody else knows about.”
I realized at that moment that pretty much summed up my career and most of the industries I’ve worked in.