Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
The most important statute of the United States is perhaps the most
horrible example of slovenliness, bad form, and contradiction of all.
The "Hepburn Act" is the amended Interstate Commerce Act, and is
printed by Congress in a pamphlet incorporating with it quite a
different act known as the Elkins Act, besides the Safety Appliance
Act, the Arbitration Act, and several others. We all remember under
what political stress this legislation was passed, with Congress
balking, the senators going one way, the attorney-general another, the
radical congressmen in front, and the president pushing them all. It
is easily intelligible that such a condition of things should not tend
to lucid legislation, particularly when an opposing minority do not
desire the legislation at all, and hope to leave it in such a shape
as to be contradictory, or unconstitutional--or both. (This has been
intentionally done more than once.) All of it a mass of contradictions
or overlaying amendments, the first important part of it which came
under the scrutiny of the Supreme Court only escaped being held
unconstitutional by being emasculated. Its other clauses have yet to
face that dreaded scrutiny. Its basic principle has yet to be declared
constitutional, while the only principle which has proved of any value
was law already. This wonderful product of compromise starts off by
saying "Be it enacted, etc., Section I as amended June 29, 1906." It
begins with an amendment to itself. It does not tell you how much of
the prior law was repealed, except upon a careful scrutiny which only
paid lawyers were willing to give. Upon the old Interstate Commerce
Act of 1887, after quoting it substantially in full, it adds a mass of
other provisions, some of which are _in pari materia_, some not; some
contradictory and some mere repetitions. It amends acts by later
acts and, before they have gone into effect, wipes them out by
substitutions. It hitches on extraneous matters and it amends past
legislation by mere inference. Like a hornet it stings in the end,
where revolutionary changes are introduced by altering or adding a
word or two in sections a page long, and it ends with the cheerful but
too usual statement that "all laws and parts of laws in conflict with
provisions of this act are hereby repealed." As a result no one can
honestly say he is sure he understands it, any more than any serious
lawyer can be certain that its important provisions are any one of
them constitutional. And that huge statute with sections numbered 1,
2, 5, 16, 16_a_, etc., with amendments added and substituted, amended
and unamended, is contained in twenty-seven closely printed pages. I
venture to assert boldly that any competent lawyer who is also a
good parliamentary draftsman could put those twenty-seven pages of
obscurity into four pages, at most, of lucidity, with two days' honest
work. By how little wisdom the world is governed! And how little the
Public-domain text, read in full here on John Shaqi.
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