By: Chad Kent
Chad Kent Speaks
“The more corrupt a state, the more it legislates.”
If you had to guess – about how much time on average would you say you spend reading federal statutes?
If you are like virtually everyone else in this country, you probably said, “none,” right?
In that case there’s a good chance that you are guilty of violating federal laws and don’t even know it. Just ask Eddie Leroy Anderson – an Idaho man who recently became a federal criminal for violating the ever-popular Archaeological Resources Protection Act of 1979.
Wait – you haven’t heard of the Archaeological Resources Protection Act of 1979? Neither has anyone else. That doesn’t matter – you are still expected to comply with it.
Mr. Anderson hadn’t heard of it either… until he went to a campground with his son to look for arrowheads and accidentally wandered onto federal land. Apparently that violates the ARPA and Mr. Anderson and his son each had to pay a $1,500 fine and are now federal criminals.
Before we move on to examining the idiocy behind this situation, it’s fair to ask exactly what type of federal land that Mr. Anderson wandered on to. According to the Constitution, the federal government can own lands “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” It would be interesting to find out exactly which of these categories this land in Idaho is being used for.
This is an example of one of the greatest threats to our liberty today – the mindset of our public officials that they are above the law. The mindset that if they ignore the law it’s excusable. In this case, the fact that the federal government owns that land is likely a violation of the Constitution – and no one in our justice system says a word about it. But if an old man and his son accidentally look for some old rocks in the wrong part of town, they swarm on you like bees.
Anyhow, Mr. Anderson’s situation is a great example of how the general approach we take toward government today poses a threat to our freedom. Three ideas from the Founders will help us see exactly why it’s such a serious threat.
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if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are [published], or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?
James Madison, Federalist Papers #62
Basically what Madison is saying here is, what good is it for the people to elect their own representatives if they pass so many incoherent laws that no one is able to read them or understand them? Regardless of who your representatives are, when the government makes it impossible for you to know what the law really is, that is an immediate threat to your freedom.
You might be thinking, “Ok… immediate threat to my freedom sounds bad… but how many laws could there really be in this country anyway?”
Well, according to the Wall Street Journal:
“Counting [the regulations] is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.
The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000.
A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code. “
Wait what?!? So the federal government – with all of the resources it has at its disposal – can’t even count all of the regulations. But somehow I’m supposed to know and obey all of them? How the heck is that supposed to work?
I guess it’s time to get studying, folks. You’ve got 27,000 pages of federal code to get through.
The sad part is, if you were ever actually able to read all of that, it would probably violate some regulation on reading too much or making too many computer printouts.
The ridiculous prosecution of Mr. Anderson serves to illustrate Madison’s point very well – it’s unreasonable to write an uncountable number of laws that no one really understands and then expect citizens to follow them perfectly.
“Laws are made for men of ordinary understanding, and should therefore be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subleties which make anything mean everything or nothing, at pleasure.”
Jefferson’s point here is pretty simple – if you expect the average person to obey the law, you’d better write the laws so that the average person can understand them. Seems hard to argue with that logic.
But look at how one attorney general in the article talks about the the federal code:
Roscoe Howard, the former U.S. Attorney for the District of Columbia, argues that the system “isn’t broken.” Congress, he says, took its cue over the decades from a public less tolerant of certain behaviors. Current law provides a range of options to protect society, he says. “It would be horrible if they started repealing laws and taking those options away.”
By “a range of options” he means that everyone can be found to have violated some law, so the government can always find some way of convicting a person. Nope, I don’t see any possibility for corruption there. I know I feel safe! Don’t you?
Laws that “provide a range of options” aren’t written with any intention of average people being able to understand them – or even with the intention of serving the government’s primary purpose of protecting our rights. These types of laws are designed to protect the people in government and give them more power.
I can now say proudly that I have read the Archaeological Resources Protection Act of 1979 and it is every bit as exciting as you would expect. But I can tell you that it wasn’t written so that normal people could understand and obey it. It’s filled with all of the mind-numbing legal mumbo jumbo you would expect about this or that section being subject to subsection (x) of some other law that no one has ever heard of.
This law was written to serve the purpose of government in that it gives bureaucrats power. It forces us as citizens to look to government for permission every time we want enjoy a simple pastime like digging for arrowheads – and gives bureaucrats the ability to prosecute unsuspecting regular citizens whenever they want to prove a point.
And while I’m on the topic of prosecuting unsuspecting citizens like Mr. Anderson, here’s one part of the Act that I did understand:
16 U.S.C. 470ee(d), Penalities
d. Any person who knowingly violates, or counsels, pro- cures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both […] (emphasis mine)
Everyone in this case acknowledges that Mr. Anderson wasn’t aware of the Archaeological Resources Protection Act and had no idea he was on federal land. But the feds still decided to fine him and put him on probation.
When you consider that we actually wasted federal resources prosecuting an otherwise law-abiding citizen for accidentally digging a tiny hole in the wrong place, it really illuminates the wisdom of Jefferson’s idea that we should write and interpret our laws according to ordinary common sense.
Common sense laws would allow you to protect your freedom not only by avoiding legal trouble (since you know what the law is, you can make sure you follow it); but also by allowing you to understand exactly what kind of laws our politicians are passing – and then hold them accountable in the voting booth.
“[Our representatives] being but servants of the people cannot be greater than their Masters, and must be responsible to them.”
Pittsfield Petitions, May 26, 1776
Do you get this feeling from our politicians, government employees, or even when you walk into the DMV? More often than not, when you interact with someone from the government you get the feeling that they think they are in a position of superiority – not a position of service.
For example, when Mr. Anderson was notified of his violation of the ARPA, federal authorities told him “to get a lawyer and a damn good one.”
That doesn’t sound like a public servant doing his best to make sure a citizen understands the situation he’s facing. That is clearly a threatening statement made for the sole purpose of intimidating Mr. Anderson with the power of the federal government.
This is really the source of so many of our problems right now. We have a great number of public officials who get this sense of power and feel that they are untouchable (and sadly a lot of citizens who view the government as all powerful and allow themselves to be intimidated).
Everyone in a free society should understand that when someone takes a job with the government – any job with the government – it does not make him superior to everyone else. It is actually a step down. You are making a move from being the Master to being the Servant.
Until we are able to convince our politicians that they are the servants, we will continue to get thousands of incoherent laws that defy common sense and serve to reinforce the bureaucrats’ feeling of superiority. And as Madison explained, in that situation we will never truly be free.