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The growing number of federal laws with weakened mens rea safeguards is making the venerable legal principle that ignorance of the law is no defense a much riskier proposition for people. That principle made sense, says University of Virginia law professor Anne Coughlin, when there were fewer criminal laws, like murder, and most people could be expected to know them.
But when legislators "criminalize everything under the sun," Ms. Coughlin says, it's unrealistic to expect citizens to be fully informed about the penal code." With reduced intent requirements "suddenly it opens a whole lot of people to being potential violators."...
Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.
Again, I'm reminded of an old Frank and Ernest cartoon that shows them standing in a library of law books, with one telling the other "just think: it all started with only 10 Commandments..."
This is definitely another case where more isn't necessarily better. Ignorance of the law shouldn't be an excuse... but when Congress can choose to make anything a Federal matter, it's harder to apply that standard. People--citizens--should not have to fear that going about their daily business might run afoul of some provision of which they've never heard.
2 comments:
I wonder if there is an example of a government successfully shrinking the legal code. Starting with the Roman Empire there seems to be a trend for the legal code always to grow in size. That is, until a revolution or barbarian invaders destroy an old code completely and start building a new one from scratch.
There is truth in that. As Thomas Jefferson said, "the natural progress is for liberty to yield, and government to gain ground."
Not all 'revolutions' start from scratch, however. I used to wonder why some historians referred to the American Revolution as a conservative one, but now I understand. Though they were consciously breaking with England over what they considered (and called) Intolerable Acts, they viewed their action as preservation of the rights of English common law... not as the ex nihilo creation of some new thing. Contrast that with the French Revolution, which sought in the end to tear everything in society down, discarding everything old just *because* it was old... a much more radical proposition.
To your main point, though... I agree history doesn't show many examples of non-traumatic rollback of overbearing law. Power, once in place, is hard to dislodge. That's why the Founders tried to make it so difficult to concentrate it anywhere in our system. We removed those firewalls at our own peril. I still hope for enough citizens to realize where we are that a peaceful redress becomes possible. That said, if the sad day ever comes where a 'revolution' is instigated, I hope those who lead it will be as 'conservative' as the Founders, and seek to improve what they gave us, rather than trash it all in a vain attempt to start over.
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