Musings upon the process of making law

[unixronin]

The flip side of that is that you were supposed to be able to un-join.

I was pondering yesterday evening the advisability of a clause in a hypothetical constitution saying that, in the interest of furthering separation of powers, lawyers may not hold elected public office, on the grounds that those who practice and interpret law should not be permitted to write it.

This led to the following train of thought.  Suppose one was to make certain changes in the process by which law was made ....

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Here's my hypothetical idea.  You keep the Senate and the House, as they now exist, but lawyers may not hold seats in either.  However, you create an advisory panel to the House and Senate, staffed with professors both of law and of English language from Yale, Harvard, Cornell, Stanford et al.  It would be the duty of this panel to review prospective bills from the House and Senate and verify that they do not infringe upon the Constitution, do not contain any stupid loopholes, unenforceable provisions, vague and ambiguous language, or obfuscation that makes their meaning unclear to a person without legal background, and would not unfairly benefit special interests at the expense of the public at large.  Instead of members presenting bills immediately to their respective houses, members must first present their bills for review by this panel, and may not prevent them before their houses until approved by the panel.  The panel has no authority to change any prospective bill passed to it, or to evaluate or comment upon the substance of a bill other than its constitutionality; only to evaluate the bills for soundness and clarity, and make recommendations to the author of the bill in the event that any part of the bill is unsound, unclear, or unconstitutional.  It would also be the responsibility of the panel to suggest means by which conflicting House and Senate versions of a bill might equitably be reconciled, but once again, their power would be solely advisory; they would have no authority to make or change law.

Once the advisory panel signs off on the soundness of a bill, then the author may present it to their house and the process goes on as it does now, with the proviso that any time the bill is amended or riders added to it, it must go back to the panel for review again for soundness and clarity.

Another change I think I'd make is to add a rule such that no amendment or rider may be added to a bill that is not directly germane to the primary subject of the bill, and in any case, the principal author(s) of a bill have unconditional right of veto against any amendment or rider to their bill.  This, I think, is necessary to prevent "poison pills" (deliberately unpassable riders or amendments added to a bill which cannot be defeated by ordinary means, solely in order to kill it) and vampires (riders which could never pass Congress on their own, added to a crucial bill that must be passed in order to "ride its coat-tails" through Congress).

Finally, I would eliminate the power of Congress to edit the congressional record, and likewise the power to make unrecorded voice votes.  I don't think members of Congress should be allowed to alter the record of what they said or did after they did it, and I don't think they should be allowed to cast any vote that they're not willing to have on the public record as having cast.  "If you didn't write it down, it never happened."

Oh yeah, one last thing:  The power of unelected Federal officials and agencies to write regulation that carries the force of law should be ended.  Period.  No exceptions.  They may write a body of proposed regulation, but then it must go to Congress, pass the review panel, and go through the whole process.  Only Congress should have the power to pass it into law; the NHTSA, for instance, should never be able to make law -- only to suggest and recommend law to Congress.

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So?  Any thoughts, any comments?  Did I miss anything major?  (I'm sure I've mssed details here and there.)

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Something needs to be done about Presidents making law directly via executive order, too, but that's a separate problem.  Hastur on a pogo-stick, Presidential executive orders were supposed to be something a President might use once or twice in his term in case of dire emergency, not something Presidents were intended to write hundreds of every year to enact their own personal agenda without having to go through Congress.  And I fully believe that every Presidential executive order, regardless of its substance, should be absolutely required to be justified to the American public, and any time the President is bypassing Congress to write an executive order, then the People should have the right and the opportunity to veto or revoke that order via referendum.

Comments

Re: Laywers vs. Politicians

[unixronin.livejournal.com]

The problem I see with lawyers writing the law is you end up with laws written in dense legalese gibberish incomprehensible to anyone but a lawyer, and then the lawyers are the only people who understand the law. There is a legal principle that says that ignorance of the law is no defense of the law, but it dates from a time when laws wers short, simple, and stated in plain English (and also when there really weren't that many of them). I firmly believe that the average person should not be able to be held legally responsible for violating a law so complex and obscure that the average person cannot understand it. The population at large does not possess a corporate legal department, and should not have to consult a lawyer on everything they do in order to figure out whether it's legal or not.

You're absolutely right about the monetary motivation of much lawmaking. I think the long-term answer to this is to make government a duty that one may periodically be required to perform, not a career from which one can get rich, and make compensation contingent upon doing a good job. Right now, politics is a doorway to wealth and power, and as has been said, "It's not that power of itself corrupts; it's merely that it's immensely attractive to the easily corruptible." And once the corrupt gain power, the whole system goes to hell.

Selecting the panel and ensuring that it remains politically neutral is a problem. For the most part, I think scholars of Constitutional law would tend to be the most likely to adhere to it.

The point someone else raised about the Canadian system is very valid, too. Under Canadian law, the Canadian Supreme Court does not need to wait for a challenge to a law to be brought before them; they can challenge a law at any time they wish, without prior judicial notice. What I don't think this does, which the review panel would, is throttle the output of Congress and force them to concentrate on the important stuff instead of the continual stream of bullshit.