Monday, November 4, 2013

Finding out what's in it

During the healthcare debate, Representative Pelosi infamously stated that "we have to pass the bill so that we can find out what is in it." You can see the clip here.


The comment sounds silly, as if those voting on legislation didn't know what was going to happen.

So imagine my surprise when I found James Madison making a very similar (although more verbose) argument about adopting the Constitution. Here he is in the Federalist 37 (sorry, no video available). After stating what a miracle it was that the Constitutional Convention could agree at all, he turns to those who are demanding more clarity from the proposed Constitution:
Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. 
The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.
Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.
Now granted, there is still quite a difference between Madison's argument and Pelosi's. Madison is saying that they were as clear as language permitted, while Pelosi was simply dodging a question about poor policy writing. Madison was not hiding behind poor drafting, but instead arguing that the drafting was as good as possible even if it wasn't always as clear as some wanted.

I think Madison's point is well worth remembering. He notes that even in what was likely considered one of the most legally advanced nations at the time and in large part a model for the drafters--Great Britain--the laws still needed to be worked through after passage to determine what exactly they meant. Madison reminds us that even the Constitution is subject to this limitation of language.

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