All Maine Matters

October 2006



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All Maine Matters

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Vol. 1, No. 10      October 2006 FREE

Swamps and Durable Laws
by Dr. Bill Reid

There is a swamp down the hill near the home place, which is, by some accounts, a bit dismal, snakes, frogs, spiders, mud, muck, dead trees, snags, mosquitoes, black flies, moose flies, tangles, and impenetrable except by deer in the hunting season. There are of course some interesting features, the birds, and some of the plants. But I rarely slip into my LL Bean rubber bottoms and go there. I don’t find it a pleasant place.

I stumbled into an intellectual swamp the other day which is even muddier, muckier and murkier. This is a creation of Maine’s restless, busybody Legislature over many years. The key to the creation of this legal swamp is our legislators’ indifference to the wisdom of our fourth President, James Madison. In the sixty-second number of the Federalist Papers he wrote:

It will be of little avail to the people that laws are made by men of their own choice if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; ...or undergo such incessant changes that no man who knows what the law is today, can guess what it will be tomorrow.

Madison wanted a limited number of understandable and durable laws. Above all, he wanted laws which ordinary people would find accessible and understandable. Is this a bad idea?

If anyone believes Maine has a legal system that meets President Madison’s criteria, slip into your mental LL Beans and take a little hike through Maine’s legal morass. You will discover that we have we have tens of thousands of laws, and rules with the force of law, which no one—no one at all--- knows in their entirety. I’d estimate that only a handful of lawyers know even five percent of them. We have some really obscure wordings and flawed statements of legal matters.

We even have a department dedicated to revising the laws, called the Office of the Revisor of Statutes! All of these facts fly in the face of Madison’s very practical advice---- have few laws, keep them understandable, and don’t change them incessantly.
The average Mainer knows very little of what his legislators are up to. There is too much for even the most conscientious citizen to know. If you are ready for a lifetime of reading try the 41 volumes of MAINE REVISED STATUTES ANNOTATED and its supplements, then try the 180 volumes of LAWS OF MAINE, where the fruits of the legislative sessions going back to 1820 sessions are reported.

Next, if you have a few years left in your life, try the 320 volumes comprised of MAINE REPORTS and MAINE REPORTER. These record refinements in the laws by the Maine Supreme Court. If you are up to it and have not yet succumbed to senile decay, skim through the twenty , three-inch-thick loose leaf binders called THE CODE OF MAINE RULES. These contain rules having the force of law which you are expected to obey.

Even as you are trying to make sense of this stupendous mass of legislation, the Office of Revisor is busy revising—searching for internal contradictions and conflicts with other laws on the books. The Office looks for numbering errors, clerical errors, spelling errors, punctuation mistakes, cross reference errors, formatting errors, etc.

Its activities demonstrate how little the legislators themselves know of their legislation. Even those who write the laws can’t keep track of them—even though the citizens are expected to obey all that they enact.

There are other intellectual errors. Take for example the revision of the term “income” in the “Revisor’s Report” for the 120th Legislature (MRSA 1012, Sub 7, #5). You can find it on the net. It is a two sentence piece, the first with 83 words, the second with 27 words. It would try the mental skills of lifelong students of Hegel, Heidegger, and Whitehead to comprehend it in two or three readings. The revisors use the term “income” nine times in defining income. Any student of mine taking “Introduction to Logic” could pick out the glaring logical error in this passage in a glance.

You cannot use the term you are trying to define in the body of the definition. If you had to know what “income” meant before one could understand its definition, what is the point of trying to define it? We call it a “circular definition.” There are other examples of this problem in Maine’s laws. They are full of legalistic words that themselves require study to begin to comprehend their meanings. Who has the time?

The problem of over-legislation and over-regulation is complicated by incessant revision and alteration.
A few days ago I talked with a former head of the state’s Land Use Resources Commission (LURC). He described how the Legislature’s repeated change in the definition of “subdivision” complicated the commission’s work.

How many of you are up to date on the latest changes in the seat belt law, the auto inspection regulations, studded tire laws, wetlands laws, fishing laws, hunting laws, wood harvesting regulations, tree growth tax law, trucking laws, and the Dirigo Health program just for starters?

James Madison argued that the constant changing and multiplication of laws number leads to insecurity. Is his insight any less true today? No large organization dares to proceed without checking the latest alterations. Hence there are hundreds of lawyers and quasi-lawyers in our school systems, businesses, city governments, non-profits. The threat posed by incessant changes in the laws and rules, and the prospect of new laws require hordes of lobbyists to watch out for special interests.

The conclusion one must draw is that the Maine Legislature is too busy; doesn’t consider the effects of the colossal mass of laws it promulgates, and somehow has no notion of when enough is enough. There is surely a practical limit to the number of laws of any state. The simple fact that the Legislature meets regularly and piles law upon law, rule upon rule guarantees that we will burdened with ever more to learn, to remember, to try to figure out, and to obey.

Can this be healthy for our state and society?

Dr. Bill Reid, a resident of New Sharon, is a former professor of philosophy in the University of Maine system, a fisherman and a hunter, and Republican candidate for Maine House District 87 in 2006.

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