What Would James Madison Say About Our Legal Code?

The only thing that has grown faster than the national debt is the number of laws and regulations with which a bloated federal government has burdened its beleaguered citizenry.

The Obamacare bill ran 2,471 pages long, not including the thousands more pages of regulations (created by unelected bureaucrats) that come along with the new law.  The recent Dodd-Frank financial reform bill was 2,323 pages long.  Each year the federal government adds about 80,000 pages to the Federal Register. The tax code alone is over 70,000 pages long.

What would the Founding Fathers say about this?

James Madison wrote in April 1787, just prior to the Convention:

Among the evils then of our situation may well be ranked the multiplicity of laws from which no State is exempt… The short period of independency has filled as many pages as the century which preceded it. Every year, almost every session, adds a new volume.

Madison then turned to the “mutability of the laws of the States” and wrote:

This evil is intimately connected with the former yet deserves a distinct notice as it emphatically denotes a vicious legislation. We daily see laws repealed or superseded, before any trial can have been made of their merits: and even before a knowledge of them can have reached the remoter districts within which they were to operate. In the regulations of trade this instability becomes a snare not only to our citizens but to foreigners also.

In a letter to Thomas Jefferson in October 1787, Madison wrote:

The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most stedfast friends of Republicanism.

And in Federalist No. 62, written in February 1788, Madison argued:

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if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.

Madison then goes on to explain the effects of the “multiplicity” and “mutability” of laws:

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

James Madison and the Founding Fathers would be ashamed of what our government has become.  Madison lamented, “Every year, almost every session, adds a new volume.”  Today, the U.S. government adds several hundred volumes every year and state and local governments only add to that total.

Michael E. Newton is the author of the highly acclaimed The Path to Tyranny: A History of Free Society’s Descent into Tyranny. His newest book, Angry Mobs and Founding Fathers: The Fight for Control of the American Revolution, was released by Eleftheria Publishing in July.