Tough Question?

This post will address national laws only.

In Theory...

We live in a nation of laws. So, laws rule us. We have officers of the law to enforce laws and judges and courts to decide if a law has been violated and to prescribe remedy under the law.

We also have Congress to design laws and a President to enact laws and to set the tone for enforcement. We have courts to judge on the Constitutionality of the law, with laws that go against the Constitution being declared illegal by the courts, thereby ending their enforcement and the right to seek remedy. In extreme circumstances, the Constitution can be amended, but this requires most Americans to agree to the change and is a process that spans years, sometimes decades. Some of the amendments have been good, others so bad they had to be repealed.

The Real World

Now, the average citizen wants two things out of laws:

1. Simplicity, so that he can understand the law
2. Congruence with the moral and ethical fabric of America

Unfortunately, the average citizen has no power to make sure that the first desire is met. Indeed, when laws are thousands of pages long, even those voting on the law do not fully understand the content of the laws. DocBrain believes there should be an amendment to the Constitution requiring that all laws be simple enough to be basically understood by the governed without needing to resort to legal counsel.

What about the second part, making sure the laws reflect our values? There are three ways this can be determined:

1. Public polls (such as Proposition 8), where a value is put up to a vote. Those in favor and those opposed vote their beliefs; those who could care less don't vote. We get a reflection of the opinion of those who care about an issue.
2. A standard (in the USA, the Constitution, as written). A law is compared with the Constitution, as written, and if not congruent, is discarded.
3. Expert opinion. Thought leaders, sitting in the position of judges, could allow certain laws that go against public opinion and against the Constitution (and squash laws that go with public opinion and with the Constitution) just because they believe that their decision would be good for America. These people see themselves as our betters, as more capable of deciding what should be legitimate or not than either public opinion or the Constitution (as written).

So, which of these three should be the highest standard? The lazy answer is "It depends". This answer is lazy because it leads to the next two questions "On what?" and "Who is to decide?" And then, we will have to decide if it depends on:

1. Public opinion
2. A standard
3. Expert opinion

and we have cycled back to the beginning again. So, what should be the highest standard?

DocBrain believes that, for better or worse, the standard should be the Constitution, which should be strictly interpreted based upon the original four legal precepts:

1. Equality under the law (all, regardless of race, religion, national origin, age, sex, income, level of education, intelligence, fame, political connections, or political affiliation are equal in court)
2. Life (the government may not take your life except by due process)
3. Liberty (the government may not take your freedom except by due process)
4. Pursuit of happiness (the government may not interfere with your acting in your own self interest and ownership of your own property, except by due process)

The next standard should be public opinion. Public opinion is usually distilled from traditions and core values. These do change over time due to diffusion of knowledge, alleviation of fears, and growth of trust.

The least standard should be expert opinion. One of the flaws of expert opinion is that the evidence to support it is not strong enough to have been incorporated into either the Constitution or the public trust. Also, experts often disagree, and neither the public nor the Constitution are in a position to determine which expert is more correct.

So, for example, when it comes to gay marriage, there is nothing in the Constitution that specifically forbids gay marriage, but also nothing that makes it illegal to ban it. While some experts believe that there is nothing wrong with gay marriage, the public has spoken in California, and this should be respected as reflecting the will of the people at this point in time. While it is likely that, as time passes, the comfort level of people with gay marriage will increase, this involves prediction of the future, which is not possible. And who would predict the future but an expert, only to be refuted by another expert?

Comments, as usual, are welcome!