My intention with this essay is to increase the awareness of the complications of vagueness in the "science" of governing. I will discuss the significance of vagueness in laws as well as the application of vagueness by politicians to control, confuse, exploit and even do great harm to citizens, usually, according to political philosophers, in the pursuit of their own self-interests.
Vagueness is a pervasive part of our lives, causing little harm in the natural state and actually providing many benefits. It is only when government and politicians (and to some extent, businesses, I suppose) use vagueness does it become a very serious problem. For its application can not only cause serious negative impact on a citizen's life, it often results in serious loss of liberty and, sometimes, even life itself.
Philosophers describe vagueness by type and other closely related concepts, such as "essential vagueness", "unsharpenable", "generality", "imprecise", "ambiguous", "ignorance", "arbitrariness", and so on. It is beyond the scope of this essay to go into detail on these concepts. There is an excellent bibliography for the reader who would like to pursue the theories of vagueness on Justin Needle's web page, http://www.btinternet.com/~justin.needle/bib_themes.htm. Many of the articles are actually online.
Introductory material on 'vagueness', 'ambiguity', and other related concepts is included in my essays starting at "Dilemmas of Ambiguity and Vagueness" at http://perspicuity.net/paradox/ambiguit.html. This essay will concentrate on vagueness, leaving the issues of "ambiguity" for another time. Ambiguous, which is the situation were an expression can have more than one meaning (e.g., "Over 60 party dresses!" which could have at least 3 meanings, was a heading for an advertisement in the Vicksburg Post, 12/17/2004), is not nearly as troublesome as "vague."
It is peculiar that something so pervasive and so powerfully intrusive in our lives receives so little attention. I hope to rectify that somewhat by this essay.
In normal everyday life, the use of vague terms is acceptable and necessary. Somehow, meaning is effectively communicated between humans even if terms are vague. For example, if I advertise in the local paper that, "My dog is missing, please be on the lookout. He is medium weight, has long hair and a nasty disposition", I would expect the ad to actually produce results if someone spots a dog of that description. But hold on; the whole description is vague! What is "medium weight" and how long is "long hair", etc.? Sure, those terms are vague but somehow we all understand what they mean -- roughly -- and they will be adequate for the purpose. But when a person is booted out of the military or fired from a job for being "overweight", or a student is sent home from school for having hair "too long", or the IRS decides to label you as a "tax evader" rather than a "tax avoider", vagueness takes on a more serious aspect.
According to the philosopher, Timothy Williamson, quoted by Andreas H. Jucker, et al, in "Interactive aspects of vagueness in conversation":
Used as a technical term, "vague" is not pejorative. Indeed, vagueness is a desirable feature of natural languages. Vague words often suffice for the purpose in hand, and too much precision can lead to time wasting and inflexibility.
The situation changes dramatically when these same terms become part of statute law. The power of government to drastically impact an individual's life makes it desirable and necessary to define precisely when and why that imposition may happen. This is particularly true when the imposition includes imprisonment or death.
In general, when dealing with contracting or participating in serious legal situations, vagueness can become a critical issue. However, our concern here is with the government. Because of the enormous power of the state and in particular, its monopoly over force, citizens would like it to be as specific in its laws as possible. In a democracy, or a republic as we have in the USA, citizens still have some hope of bringing pressure to bear on the government to try to be specific in its laws.
However, the dilemmas of vagueness cannot be completely resolved. Some issues, for which there appears to be a need for law, are inherently vague and for reasons discussed below, are destined to remain that way. For example, sexual activities of adults probably should be shielded from young children as they are not yet capable of understanding what is going on and it may result in some harm to the child. But at what age are they too young to be exposed to these activities? Where must the line be drawn? It is vague and arbitrary -- but still necessary.
This problem of statutory interpretation has been getting considerable attention in the last 20 years or so and hopefully it will get more. I have included references to some of the better articles available on the internet in my "Supplementary Bibliography" below.
The next section discusses the problem of legislation in some detail.
"Abuse of words has been the great instrument of sophistry and chicanery, of party, faction, and division of society." (John Q. Adams: To J. H. Tiffany, March 31, 1819)
The first question that comes to mind is "just how many laws do we need, anyway?" The answer to that question is vague. The scope and severity of the laws is also vague. As will be discussed in this article, when a concept is vague, the level it will reach is determined by opposing forces. In the case of legislation, there is little to oppose it and therefore it grows. It was probably a great mistake that our founding fathers set up a system of legislation which today has resulted in 550 full-time legislators and thousands of supporting personnel.
This permanent staff of law-makers will continue to manufacturer thousands of new laws and revisions to laws, nearly all of which are vague in content. And since the laws are vague, there will always be need for new laws to correct the errors, omissions, and those unanticipated situations of the existing laws. The new laws will, in turn, be vague.
While this essay will show that vagueness is often used as a tool by the state to manipulate and control citizens, when it comes to creating laws, it cannot be avoided or, some claim, it has some usefulness. For example, there is no way to precisely define what "pornography" or "indecency" mean. Yet, most citizens feel that there should be some protection against children being exposed to such "overly explicit" sexual material.
Then, if such laws must be on the books, rather than to try to remove the vagueness, it might be better to leave the statutes vague and let the judges sort it out.
Since, among other reasons, actions by the state can be very disruptive to an individual's life, we would like for all rules, laws, and so-called "infractions against society" to be precisely defined. While this may be possible for a few infractions (e.g., speed limits), it is in general not possible or practical. For reasons to be discussed, vagueness must be present in virtually all statutes. This suggests the need for judges (the term "judges" here includes administrators, inspectors, etc.).
In a perfect or at least significantly improved universe, judges would come from a race of "super-humans" (Ubermensch?). They would be wise, impartial, fair, and particularly, not self-serving. In the real world, they are likely to have characteristics just the opposite and, in particular, their actions will be self-serving. Then, while judges would seem to be the ideal solution to the vagueness in law problem, the reality of their humanness requires us to seek another, less than desirable, solution -- the creation of precise and concrete definitions. Which, unfortunately, is an impossible task.
Legislators have tried to at least partially solve the problem of vague legislation (and to limit the activity of judging by judges) by including a section of definitions in their statutes.
Can we really define "Probable Cause", "Interstate Commerce", and "Indecency"?Politicians make a feeble attempt at solving the vagueness problem by providing a definition section to most legislation. Of course the attempt fails -- maybe from ignorance, but possibly on purpose.
In virtually every attempt at defining terms, other vague terms will be used in the definition.
Here is a typical definition:
An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. -- [George C. Christie] !!(I have highlighted the most troublesome vague terms in this quote. Each of these could be challenged in a court of law -- in my humble opinion.)
While the use of a vague terms in a definition is generally done without regard to the consequences, according to Christie, the system of using vague terms to define a vague term can actually work -- see his discussion on page 891 of the referenced article. How can this be? Christie says:
". . . we often find that an understanding of some matter A is necessary preparation for an understanding of some matter B which we are trying to explain. Yet, we sometimes find that A itself cannot be explained in adequate detail or even correctly, in any sense of that word, without an awareness of certain exceptions and distinctions that depend on a prior understanding of B."Please take a look at his paper to see his explanation of how this might work.
One aspect of legal vagueness that can be resolved fairly easily are those issues in which the vagueness can me eliminated by an arbitrary cutoff (typically referred to as the "borderline" in vagueness literature). That is, law arbitrarily defines what an infant is (actually it has multiple definitions depending on the state and application). Generally at the age of 18 years, you are defined as being no longer and infant. One day less that 18, you are a infant. It doesn't matter that humans develop into maturity over a wide range of ages.
The same goes for hundreds of other definitions including what driving speed is dangerous, what level of income gets taxed and by how much, what levels of alcoholic drink you may have before you are "too drunk to drive", at what income are you no longer "poor", etc., etc.
This establishment of arbitrary borderlines is generally referred to as "discretizing continuous variables". For example, we know that human growth is continuous. So when we decide to classify some humans as adults and some as children, we are arbitrarily discretising or quantizing a function that has no obvious breakpoint. Assigned breakpoints cannot be defended logically (see my essay, "Dilemmas of Ambiguity and Vagueness" for more on this complex issue).
A difficult one: At what age can you be declared an adult for purposes of execution for a heinous crime? Amazingly, in many states you may still be -- legally -- an infant!
One other amazing solution to vagueness is claimed by many, including Supreme Court justices. And that is, the famous "I know it when I see it" solution. The claim is, by many people, that they know precisely where the borderline is! The classic quote on this is "While Supreme Court justices can't define obscenity, we know it when we see it." by Justice Potter Stewart.
Crime, itself, is a vague concept. While robbery and murder might seem to be clear wrongs against society, we now have laws that are very arbitrary in application. For example, it is a "crime" to make a cash transaction of $10,000 or more unless a form is filed with the government. Of course, $10,000 is a purely arbitrary number.
Even the killing of a person has several "breakpoints" associated with it. It might be "murder", it might be "manslaughter", it might be "premeditated", it might be due to "negligence", "hate" and other "intentions" might be involved, it might be "self-defense" and there are "degrees" within the major categories. On top of all that, the act may have been committed in a fit of "insanity"!
And for all the many thousands of defined crimes, we must have punishments. These punishments are purely arbitrary. Maybe at one time, "an eye for an eye" prevailed, but not any more. Not only is the punishment very arbitrary but is somewhat driven by politics. The most famous example is the fact that many "drug" crimes now carry a punishment greater than that of murder!
Since I am not a lawyer I am free to find amusement in the unbelievably vague terminology that those in the legal professions must live with every day. Here are some examples randomly (almost) picked from online legal dictionaries (http://www.victoriapacking.com/legalinfo.html, for example):
Probable Cause: ". . . police need to have a reasonable belief that someone has committed a crime before making an arrest. . ." (Yes, the vague terms reasonable and belief certainly clarify this one.)
Preponderance Of Evidence: "The standard of proof used to settle civil lawsuits determining which side's evidence has greater weight." (Weight? Is this something you can put on a scale or does it require many judgments over many diverse factors?)
Facilitate: (Not defined! But used routinely to seize private property by the Drug Warriors. For example, the U.S. Code in "21 U.S.C. § 881(a)", subjects to forfeiture; ". . . all proceeds traceable to such a transaction, and money and negotiable instruments used or intended to be used to facilitate a violation of the drug laws." Other sections extend "facilitate" to conveyances and real property.)
Questions come to mind; if the teenage drug dealer makes a deal in his parents home, did the home "facilitate" the deal? Most definitely. How about the telephone system, i.e., BellSouth, he used? Hmm? How about the earth that held up the telephone poles? (Much more on the insane forfeiture laws at http://forfeiture.info.
Or: (Yes, the courts, like Clinton with his "is", have had trouble defining what or means. I quote from Findlaw (http://laws.findlaw.com/10th/002072.html):
The final clause of § 881(a)(7) provides that an owner may defeat a forfeiture action if it can establish that the violation of the drug laws alleged by the government occurred "without the knowledge or consent of that owner." 21 U.S.C. § 881(a)(7). As the parties note, courts have disagreed as to whether the lack_of_knowledge and lack_of_consent provisions should be read conjunctively or disjunctively.)
Felony: "A serious crime, as opposed to a misdemeanor." (OK, I know what you are thinking; "a misdemeanor is a non-serious crime, as apposed to a felony." I suppose -- I was afraid to look it up!)
Reasonable Person: A phrase used to denote a hypothetical person who exercises qualities of attention, knowledge; intelligence, and judgment that society requires of its members for the protection of their own interest and the interests of others. (OK, make a list; put all the reasonable people you know on one sheet and all the unreasonables you know on another. Now get all your friends to do the same. Compare. Don't forget to take into account the "interests of others"!)
Speedy and Public Trial: (In the Bill of Rights. Unfortunately, it is undefined. Cases involving forfeiture can have very long delays. See "JUDA v NERNEY" where in footnote 8 we have, "See also United States v. $292,888.04 in U.S. Currency , 54 F.3d 564, 567 (9th Cir. 1995) (thirty-month delay permissible); United States v. United States Currency in the Amount of $228,536.00 , 895 F.2d 908, 917 (2d Cir. 1990) (almost four-year delay permissible).")
An example of circularity: "It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer." (Birmingham, Ala., General City Code § 1231 (1944)). (from "ADDRESSING VAGUENESS, AMBIGUITY, AND OTHER UNCERTAINTY IN AMERICAN CRIMINAL LAWS", by John F. Decker, Denver University Law Review 2002)
Unnatural intercourse in Mississippi: "§ 97-29-59. Unnatural intercourse. Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years. Sources: Codes, Hutchinson's 1848, ch. 64, art. 12, Title (20); 1857, ch. 64, art. 238; 1871, § 2701; 1880, § 2968; 1892, § 1321; Laws, 1906, § 1396; Hemingway's 1917, § 1139; Laws, 1930, § 1170; Laws, 1942, § 2413."
In discussing the importance of legislators purposely allowing vagueness in their statutes, Christie says the following:
The importance of the flexibility that vagueness gives to all normative methods of social control can scarcely be overestimated and is recognized by all. It allows man to exercise general control over his social development without committing himself in advance to any specific concrete course of action. Without such flexibility, man would have to choose between no regulation and the impossible task of minute specification of what is and what is not to be permitted.
Christie gives the example of the Supreme Court ordering that integration of schools proceed "with all deliberate speed". It was left to the lower courts to decide what this meant in each specific case. He gives several other examples to bolster his claim that "purposeful vagueness" can be a good thing in legislation.
Christie further makes the point that vagueness in law may be desirable for the public good. For example, in the above mentioned case of implementation "with all deliberate speed". He says that the fact that this speed was unspecified was advantageous to the public.
In the essay, "The Virtue of Vagueness in Takings Doctrine", by Marc R. Poirier, located at http://www.cardozo.yu.edu/cardlrev/pdf/241Poirer.pdf, the claim is made that vagueness in law can be useful and efficient. He says in his "Conclusion",
As I have suggested, regulatory takings doctrine is an expression of property as an essentially contested concept, an aegis under which a never-ending dispute occurs. What is the function of its vagueness? As an essentially contested concept, it is fertile and generative precisely because it is inevitably, and perhaps quintessentially, vague and unresolvable. It does not and cannot give clear rules at the level of generality and simplicity demanded of it. Yet it binds society together, for those who believe its promise, and even for those who just pretend to believe it and yet invoke it and perform it. It defines the societal playing field, as it were, for the working out of tensions between self- and other-regarding versions of property. It both allows and forces citizens to participate in societal discourse within its mysterious and vacuous limits.
"Binds society together"? Whoa! "[D]efines the playing field"? I suppose so -- but that definition is quite bleak. The various ways that the government can exercise a "taking" are very powerfully one-sided to the government. For example look at the history of "asset forfeiture" that I have put together, located at http://perspicuity.net/forfeiture/forfeit.html.
Legislation can exceed the limits of vagueness and in that case can be nullified on Constitutional grounds. The standard definition of "Void-for-Vagueness" is given by the case, "United States of America vs. Brett Bursey" at http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d42.html:
The Void-for-Vagueness Doctrine has been called “the operational arm of legality.” It requires that a legislative crime definition be meaningfully precise. This precision requirement can be measured in two distinct realms. First, does the statute fairly give notice to those it seeks to bind of its strictures? Secondly, is the statute precise enough that it does not invite arbitrary and discriminatory enforcement by law enforcement authorities? If the answer to both of these questions is in the affirmative, then the statute will be upheld against a void-for-vagueness challenge. However, if the answer to either is in the negative, the statute is void for vagueness. Both notice and arbitrary and discriminatory enforcement are outlined below.
This sounds very good but there is a problem; it is routinely acknowledged that legislators routinely write laws that are vague with the intention that the judges will sort them out (discussed above). I am not sure what the solution is to this conflict.
"The difference between tax avoidance and tax evasion is the thickness of a prison wall." --Denis Healey
The Sixteenth Amendment to the Constitution gave Congress the "power to lay and collect taxes on income" without specifying any rate structure. At the whim of Congress, the rates have varied enormously over the years depending on the law maker's collective mood at the time.
Where do these rules, rates and levels come from? Obviously they are purely arbitrary -- which is one reason they change so often.
"All newly constructed places of public accommodation and commercial facilities must be accessible to individuals with disabilities to the extent that it is not structurally impracticable." from http://speakout.com/activism/issue_briefs/1346b-1.htmlWe are all disabled to some extent. So, at what degree of disability should we get special accommodation? And, just how should we be compensated? Do I qualify for help if I am overweight, drug-addicted, or "intellectually challenged"?
A term that has to be in the top ten of the most vague, yet it can destroy a person's life and has many already (just because it is difficult to define, does not mean it is not a serious problem, however). Laws related to Sexual Harassment are a favorite for those who wish to get even for a love affair that has turned sour.
There have been many cases involved with the vagueness of this type of legislation. See "Illegal to Be Homeless" (http://www.nationalhomeless.org/publications/crimreport/report.pdf) for applications to the homeless. Such laws are used to control gangs, vagrants, homeless, and, yes, those that may be just aimlessly loitering!
In an ideal world, a group of learned individuals in the science of political philosophy would come together and develop a document that would somehow structure the government in such a way as to provide optimum governance for the population. Probably the Constitution of the USA comes closest to this idealization. Yet historical analysis says it didn't quite happen that way. It is said that the document was more a product of political compromise than it was of theory. I quote the classic paper on this issue, "The Founding Fathers: A Reform Caucus in Action," by John Roche:
There is a common rumor that the framers divided their time between philosophical discussions of government and reading the classics in political theory. Perhaps this is as good a time as any to note that their concerns were highly practical, that they spent little time canvassing abstractions. A number of them had some acquaintance with the history of political theory (probably gained from reading John Adams's monumental compilation, A Defense of the Constitutions of Government, the first volume of which appeared in 1786), and it was a poor rhetorician indeed who could not cite Locke, Montesquieu, or Harrington in support of a desired goal.
Yet, there has to be some sort of theory in the minds of the creators of constitutions, even if it is not discussed or documented. Surely, there has to be some idea of what it is the constitution is suppose to do. It would be foolhardy to design anything without those prior thoughts.
Provide a general structure for statutes? Control the government? Prescribe the rights and protections of the people from the government?
A constitution should provide some general guidance for the structure of the government including the legal system. What type of legal system would be implemented? Civil, criminal, common, canon, etc. are implementations that exist in various degrees in the countries of the world.
It should provide for the protection and welfare of the citizens to some degree. It should attempt to prevent special interests or the "elite" from taking over and to limit government power and abuse.
Other general guidance should be provided in the constitution for which subsequent legislation would have to comply with, such as "guilty until proven innocent" or vice versa. The trend in the USA has been towards the former in recent years!
How can this be controlled? Who gets to determine when and how? What exactly is an "emergency"?
President Lincoln, for example, suspended the legal right of "habeas corpus" during the US "War Between the States", based on the vague concept of "emergency". See the THE WHITE HOUSE HISTORICAL ASSOCIATION essay at http://www.whitehousehistory.org/04/subs/activities_03/whha_activity_c02.pdf.
Is there any criteria that defines an action of "war"? How many soldiers can invade a country and how much can be spent for equipment and munitions before it becomes a war? Or is it defined otherwise?
Apparently, never again. The last time Congress declared war was on December 11, 1941 (See Rep. Ron Paul's essay, "Is Congress Relevant with Regards to War?" at http://www.antiwar.com/paul/paul49.html). Of course, the problem is mostly political, but still, there is a legitimate question as to what is war. To start with, should war be declared if the President finds it necessary to go into a country to protect US citizens being harassed by mobs? Probably not. And now we go up the "sorites" tree all the way to the invasion of Iraq and there is no obvious place to "declare war".
The approach of most modern US presidents, in particular, George W. Bush, is to solicit public support and to justify all actions and expenditures based on our country being at war, without "declaring" a war legally.
How do we know the powers are balanced? Or, how bad out of balance must they become before we acknowledge that they are not balanced? What remedy is there?
Vagueness in constitutions can be horrific in its consequences. The enormous tragedy of the American Civil War serves best to illustrate this. Constitutional vagueness comes in at least three forms (as well as statutes in general): intentional, accidental, and unavoidable.
Intentional vagueness in the constitution is usually there for at least one of these reasons; the political problems of implementation and the complexity of the problem defies resolution at the moment. That is, specifics are removed from the legislation because opposing sides cannot agree. These issues are also characteristic of ordinary legislation and will be discussed in that section.
Vagueness is very difficult to avoid and a problem that could have been avoided may simply have been overlooked. For example, the U.S. constitution states that "Excessive bail shall not be required. . .", which could have been worded more specifically. Part of the problem with these constitutional clauses that have proven to be inadequately specified is that society changes. It may not have been anticipated at that time that lawyers would ultimately take advantage of this vagueness and effectively nullify these guaranteed rights.
It is apparently impossible to avoid vagueness in some specifications. Some examples are given above in the "Amusing Examples" section. Again, this problem is common to general legislation and will be discussed in that section.
The problem of vagueness is compounded by a closely related problem usually referred to as the problem of "Unintended Consequences." I don't have the room to discuss that problem in detail here but I will refer you to my essay, "The Contrary Consequences of Technology and Other Unnatural Actions" in which I introduce the subject and provide several excellent references.
Also, I would like to point out that a similar problem exists in the creation of specifications, work orders, contracts, etc. Government procurement agencies are well aware of this problem and have spent $billions in trying to write meaningful, comprehensive, and bullet-proof specifications for large complex systems. But to no avail. Invariably, contractors find flaws and imprecise requirements that must be clarified, adjudicated and, usually, must have more money poured into the contract!
There seems to be little theoretical information on this issue. However, there are several practical guides that touch the problem to some extent, a good example being the Engineering Management Concerns About Specifications at the U.S. Navy site.
Since definitive laws and specifications seem to be impossible to write, we must rely on judges or administrators.
"I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden ursurpations." -- JAMES MADISON (1751-1836), U. S. President, Speech, 16 June 1788.
While we may be impacted to some extent in our natural lives by the intentional application of an aspect of vagueness called the "Slippery Slope" (gradualism), it has its most dangerous impact in the hands of the government.
What we mean by the slippery slope is the steady drift of the "breakpoint" in a vague definition. Take taxing for example. Initially the rates are usually relatively minor. But once those initial rates are agreed to, then the state will generally ask for more. But since the issue is vague and the breakpoint is arbitrary, you can't really make a strong case against it being increased. Further, humans and probably most other living things react to relative change more than they do absolute change. So, if a series of changes can all be kept relatively small, their accumulation can result in a large change in the final application -- with never a complaint.
This is also the case with fines, forfeitures, and other punishments
Nearly all of law is built on a slippery slope. There are hardly any clear cut cases were lawmakers have the luxury of making a concrete statute. So, if statutes are vague, then how is the "breakpoint" established? Of course, the first answer is each judge, prosecutor, and law enforcement person makes that arbitrary decision and it will vary from person to person. It is well known that there are "harsh" judges and "lenient" judges. Same for the others in law enforcement. But there is an average that varies over time and location.
Of course, in many cases, the legislators arbitrarily set the breakpoints. Examples include the arbitrary breakpoints of allowed alcohol percentage in the blood, age at which a person is allowed to drink alcohol, poverty levels, and on and on.
But what determines ultimately where the breakpoints will be set? It is an equilibrium set by competing pressures (see my essay, "Understanding Vagueness"). As an example, consider the breakpoint that defines the "poverty level". There are many people who would like to see the poverty level greater than what it is (including politicians using it to buy votes). Others oppose higher levels, both on reasons of cost and philosophy. The value set by the legislators reflect these pressures.
As I said above, the breakpoints can drift over time and location. There is a beautiful example of the drift over time in the Federal forfeiture laws. I quote from my essay, "The Devil is in the Details: The Forfeiture Example of American 'Justice'":
In 1844, "Congress enabled the government to utilize a summary forfeiture procedure in cases where the value of the property seized was $100 or less. Act of April 2, 1844, ch. 8, 5 Stat. 653. The purpose of the summary forfeiture procedure was to save the government the time and expense of a judicial condemnation proceeding in cases where the value of the seized property was small.", according to the court in "U.S. v. U.S. Currency in the Amount of $2,857.00", 754 F.2d 208.
According to Brenda Grantland, in her recently published book, Asset Forfeiture Defense Manual, page 421, "The cap was raised from $1,000 to $2,500, in 1954; from $2,500 to $10,000 in 1978; from $10,000 to $100,000 in 1984; and to its present cap of $500,000 in 1990."
"Slippery Slope" is also known by a couple of other terms; "Boiling Frog Syndrome" (see "The Boiling Frog Syndrome" by Steven Yates at http://www.lewrockwell.com/yates/yates38.html) and "Camel getting his nose in the tent."
Vagueness is the primary reason why it is essentially impossible to control government growth. Almost all functions and requirements of the government are vague. The best example is probably the size of the US Defense Department. What size should it be? Every parameter required to answer that question is vague! For now I will just mention one: the "military threat" to our "national security". What is the threat? Your guess is as good as mine and as good as the "experts" in government but it is no better defined than "what is indecent"!
There is a natural tendency to want more and to want to do more. Maybe, even to want to control more!
Since the size of the government and the scope and size of its activities are inherently vague, there are no obvious limiting barriers to growth. And so, our governments, both federal and state, have grown massively in size, regulations, and spending. The only significant restraining influence on government size comes from the citizens and that has not been sufficient to block the growth -- especially in recent years. See Michael Hodges' "Grandfather Reports on Government Growth" at http://mwhodges.home.att.net/mwhodges.htm.
Government employees are just like you and me, they are driven by selfish interests. To promote their own welfare, they want stability in their jobs (which means the organization needs to grow), more security (their organization will not be disbanded even if there is nothing to do) and more money (they want higher salaries which often means they need to be promoted, which again causes more growth).
That means there is no real reason to economize. Through taxation and borrowing, they effectively have unlimited funds. In a profit making organization, there would be someone in a higher position that would be looking at the "bottom line" of every department. In the government, it is not that way. The only criteria that higher management in government has is that it can decide "acceptable" growth percentage of each of the departmental budgets. That is, each department's budget is, practically, the only measure higher management has. (See "Reviewing the National Performance Review" by George Nesterczuk at "Regulation Magazine" for an introduction to this problem.)
The state is basically a giant organism. It's size is only limited by its resources and effective opposition to it. There is no magic number as to what its size ought to be. Its size is determined by two competing forces; its desire for growth and the public's resentment in paying for it. Those competing force come into balance at some point and that determines its size. For more on this concept of competing forces, see my essay, "Understanding Vagueness".
Many political entities consist of multiple sovereignties (federal, state, county, municipalities), the USA being an excellent example. A citizen's responsibilities to these dual sovereignties are confused, vague, often overlapping, and often ambiguous. The result is inefficiency and conflict. The horrible "War Between the States" resulted from one aspect of this confusion, the right to secede, that remains unresolved to this day.
Of course the vagueness of the Constitution is the source of much of the problem. We have massive agencies and massive costs to the taxpayers as a result of a few vague concepts in the Constitution: e.g., the "Commerce Clause" and the "General Welfare Clause".
It seems that the lust for power and growth by the U.S. Federal government has allowed the vague "Commerce Clause" to trump the rather specific Tenth Amendment. This has been confirmed by the Supreme Court in several cases, the most signigicant one being the "WICKARD v. FILBURN, 317 U.S. 111 (1942)" case. An excellent article on this great example of how vagueness can override specificity is "The Commerce Clause: Route to Omnipotent Government", by Sheldon Richman, August 1995, at the Future of Freedom Foundation site.
See Joseph Sobran's column, The “General Welfare”, at http://www.sobran.com/columns/1999-2001/991123.shtml, for a discussion of the abuses afforded by the "General Welfare Clause".
"As nightfall does not come at once, neither does oppression. In both instances there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness." - William O. Douglas, judge (1898-1980)
Because "freedom" and "liberty" are vague terms and there is no defining cut-off points, their meanings are subject to change -- and they do with time. They could drift either way of course, but as described above, they will tend in the direction of the net pressure. For various reasons, people in government want you to have less freedom and for them to have more control. As for the citizens, some think freedom is really important but many could care less. With the added factor that the government has much more to say about what liberties we may be allowed, we find that the drift is toward less freedom.
When conflicts, unintended consequences, etc. crop up, new legislation attempts to correct it, but generally just adds to the problem.
It would be difficult to put any kind of measure on the deterioration of freedom or to provide statistics over time. There are several factors of government that impact freedom, the primary ones being laws, regulations, and the size of government, its agencies and police forces. Attitude is also a factor even though many states claim to be "a nation of laws". Nevertheless, enforcement can vary substantially depending on the tendency for leniency of the agencies, or the lack thereof.
About the best we can do in the limited space of this article is to take a brief look at the growth of laws. That is, we would like to have some idea of the number of laws citizens are subject to in the USA.
This is messy for a number of reasons. 1) We have many layers of government; Federal, state, county, municipality, and so on, each having its own laws and regulations. 2) While a reasonable amount of legal research might determine the number of federal "Public Laws" signed by the President, each one can contain many laws or revisions to existing laws. 3) Because there is such a huge number of laws, there are likely many duplications and contradictions. 4) Many laws only apply to some subset of the total population. 5)Decisions by the courts and Common Law have further restraint on the citizen.
An excellent online source on this very issue, is an article by Henry Hazlitt, "The Torrent of Laws", from The Foundation for Economic Education, Inc., January, 1979, Vol. 29, No. 1., at http://www.thefreemanonline.org/featured/the-torrent-of-laws/. Here are a few key points:
Since liberty and freedom are vague terms as are most of the legislation that impinges on them, it would be hard to quantify the deterioration. At what point, for example, do we have a "police state"? Many say we are already past that point while many others say that every thing is just fine. There is a wide variation in what people expect from government or will tolerate.
"Man is ready to die for an idea, provided that idea is not quite clear to him." -- Paul EldridgeIt is an amazing characteristic of humans that many live, suffer and die for ideas that are vague or only poorly understood. This is particularly and disastrously true when it comes to interactions with the government for the government has powerful tools of propaganda that present ideas that are persuasive but extremely ill defined. Let us look at a few.
"Duty" is a vague term on several levels. Typically when a person says they have acted "out of a sense of duty", it is not clear as to what the scope of the duty is, what the ultimate goal is, or what the word even means. This summation also applies to the person making the dutiful statement!
Sadly, for many people acting from a "sense of duty", there is no bottom line. The act itself seems to be the goal. For example when people say that they vote or that you should vote out of a sense of duty, they are at a loss if you ask them why. That is, the duty is simply to vote -- not to save the individual, the party, the country, or all of humanity.
Many people seem to be satisfied with being able to make a claim that they have "done their duty". It matters not if the action was in any way effective in improving something. For example, a person might claim that they had done their duty because they donated $25 to some organization with a compassionate sounding name even if you could show them -- if they would listen -- that the organization used up 98% of their contributions in staff salaries.
The term "duty" is basically undefined. In my Random House Dictionary, it says that "duty" is "something that one is expected or required to do by moral or legal obligation." When I look up "obligation", I am told that it is "something by which a person is bound or obliged to do certain things, and which arises out of a sense of duty or results from custom, law, etc." There you have it.
A specific problem that occurs in time of war should be mentioned; do we have a duty to fight an unjust or illegal war? Most military people believe that they have a duty to follow orders into battle, killing and maiming others -- including civilians -- even if they do not believe that the war is legitimate or that their leaders are being truthful as to the purpose. Yet this belief is in direct conflict with judgement stated in the Nuremberg trials. "According to the Nuremberg Tribunal, which was adopted by the U.N. as law, a soldier has the responsibility to refuse an order that he knows to be wrong.", as recounted by Brandon Hughey, a soldier who refuses to fight in Iraq (http://www.join-snafu.org/resisters.htm). It is another example of individuals being manipulated by vague rules/propaganda from the state -- often with tragic consequences.
I foolishly participated in a conservative forum on the internet a few years ago. A discussion came up about "rights". I suggested that we first need to define what the word means before we get all worked up about not having enough of them. I was promptly booted out of the forum! It seems that most people are quite comfortable with vagueness and undefined terms and may even prefer it to remain that way!
It sometimes seems that rights are something that are "God given" or they are fundamental to this universe, like the laws of physics and that our objective should be to see that they are not someway abridged, especially by the government. An example would be that "my dog has a right to be fed and lodged." Other times, it seems that "rights" has to do with what the law provides, like, "females were given the right to vote by the 19th Amendment." So, let us again check the dictionary:
rights; that which is due to anyone by just claim, legal guarantees, moral principles, etc.
Apparently it can be a legal claim or it can be just a vague reference to such things as "moral principles". That is quite confusing -- for "moral principles" and "legal guarantees" are worlds apart. A legal guarantee could be morally reprehensible! One example would be the legal claim to the former real estate of the Native Americans. Thousands of other examples come to mind.
I tried to use my dictionary to get an idea of what "patriotic" means and I was sent on an endless trail of vague terms that were defined in other vague terms! Roughly, it goes like this: "Patriotic" is the "characteristic of a patriot". Figures. A "patriot" is "a person who loves, supports, and defends his or her country and its interests with devotion." OK, so what is "devotion"? It is "profound dedication."
So, now we are at the heart of it; two vague terms, "profound" and "dedication". This creates an immediate judgement crisis when we are comparing me to you. For example, you might be more "dedicated", but I might be more "profound", and so on for four possibilities.
Individuals handle "patriotism" as they do most other vague terms; they reduce it to simplistic actions. Since it is not clear whether patriotism means "doing what is best for the country", "rooting out evil politicians that are doing harm to our country", or "showing respect for the flag", they opt for the latter. Not only do they make this judgment for themselves, but they might also hold you and I to the same level of accountability.
The present situation with Iraq provides and example which is discussed by Byron Williams in "What is patriotism?" at http://www.workingforchange.com/article.cfm?ItemID=16339. He says, "The easy answer suggests patriotism is simply love for one's country. If, however, patriotism is reduced to adorning flags on my house, suit lapel, or radio antenna, while granting the present administration carte blanche to offer retroactive reasoning for going to war in Iraq, then I probably do not qualify."
In the minds of many people, "patriotism" seems to identify with "altruism" or sacrificing something -- up to and including their own lives -- for the "common good", that is, the state, rather than just one's self. As with many of the terms we are studying here, the term is often associated with symbolic actions rather that legitimate actions and further, it is associated with mindless actions. It seems that many people think that such a form of patriotism, mindless symbolic actions, is to be admired and is a higher form than thoughtful study of what is best in the long run. Consider this quote from "Patriotism" at http://encyclopedia.thefreedictionary.com/Patriotism:
To give just one of many possible examples, in 1940, a number of Dutch soldiers gave their lives in a hopeless cause attempting to defend the Netherlands from invading Nazi armies. This act would be considered by almost everyone to be a clear case of selfless, admirable patriotism. Yet many of the invading Nazi soldiers doubtless felt, too, that they were engaged in a patriotic act, in this case on behalf of the German nation. Many of them had been indoctrinated in a form of unquestioning patriotism during their teenage years, while they were members of the Hitler Youth.
Patriotism seems to then mean doing something for your country, without thought or question, that someone has ordered or asked you to do. It is considered to be honorable and patriotic to do this act for your country, up to and including your own death and suffering, without regard to any kind of global goodness for humanity.
Justice is probably the most abused word in the government's repertoire of vague terms! It has no clear definition and is often applied to actions or things that seem to be just the opposite of what we would expect -- such as the "Department of Justice" or "Criminal Justice".
Justice is a hopelessly vague concept and I would not presume to try to define it here. Philosophers have written volumes on the concept without reaching any kind of agreement. My point is best made by the following quote from the classic book set, The Dictionary of the History of Ideas:
Some critics have denounced all this as a metaphysical play upon words, arguing that not only is the idea of justice unknown, but reason, as the catalyst, itself must be defined and understood; thus, they urge, there can never be a concretization of justice as a standard for man to approximate or to apply in a given situation to determine conduct, or guilt, or punishment.
In any case, what the state means by "justice" has little or no relation to the philosophical emanations produced over the many centuries from Plato to today. This is particularly true of what is called "criminal justice". At best the state would claim that what they mean by justice is a process that is "fair and impartial". Of course, what we have now are two vague terms instead of one! This is essentially what we call "due process", which is guaranteed by the Constitution. So, what is "due process"? Basically it simply means that everyone gets the same treatment. Whether there is any justice or not seems no longer relevant!
In summary, one of the most serious concepts as it pertains to the citizens and government, is justice. It is also the most ill defined word in that relationship!
To pursue the subject further, in addition to the sources already cited, for societal justice, I recommend a review of the famous book by John Rawls, A Theory of Justice. A book devoted to his book is "John Rawls - His Life and Theory of Justice". An introduction to the subject of "Criminal Justice", can be found at http://plato.stanford.edu/entries/legal-punishment/.
Many people are surprised to find out that there is no clear-cut way of determining the winner or what ought to be the winner of an election!
Vagueness comes into voting and elections just as it does in almost every other aspect of our lives. There is nothing magical about requiring a majority, or "more than half the total number", in deciding issues. A good argument could be made that it ought to be 100% when it comes to deciding on functions of the government and laws. For if 51% of the voters (even worse, maybe only 30% of the people voted!) vote to decide I can't have alcohol in my home -- as they apparently have for recreational drugs -- but I disagree and did not join in that vote, then why should I be bound by that decision? If 100% is too costly and unlikely, then how about 67%?
In other words, it is just another arbitrary cutoff point and cannot be defended.
We know that voters ought to meet some minimum criteria. But due to the inherent vagueness of any criterion and the associated political sensitivities, about the only criterion in application is age. In federal elections the arbitrary breakpoint of age is 18 years (was 21 until the 26th Amendment to the Constitution).
You would think we could do better with something that is so important.
Campaign promises are intentionally made vague in order to avoid them after election. This area is one of the most advanced examples practised by politicians. See the article, "Vagueness as a Political Strategy" by Gary Galles.
An extremely vague expression! Apparently its definition is arbitrary, depending on the times and the present attitudes of the judiciary. For example, see "Abrams V. United States, 1919, Holding Gov't May Criminalize Anti-American Speech" at http://www.lectlaw.com/files/case19.htm, wherein it states that "the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger . . ." Well that certainly clears it up -- except I'm not sure what "clear and imminent danger" means!
The problem here is that the U.S. government has enacted laws that provide benefits and restrictions -- based on race. Even worse some of the statutes and/or rules speak of "minorities". Both minorities and race are vague.
The best discussion of this issue that I have seen is in the book, Who is Black? One Nation's Definition, by F. James Davis. Here is a quote from an excerpt online at the PBS site, http://www.pbs.org/wgbh/pages/frontline/shows/jefferson/mixed/onedrop.html:
To be considered black in the United States not even half of one's ancestry must be African black. But will one-fourth do, or one-eighth, or less? The nation's answer to the question 'Who is black?" has long been that a black is any person with any known African black ancestry (the "one-drop" rule).
This, of course, is a hopeless problem -- the identification of "race" as humans, like other plants and animals within a species, tend to mix. The US government, accepting the hopelessness of any definitive definition of races, yet having to administer laws and benefit programs based on race, decided to -- cop out. According to Davis, the ". . . U.S Bureau of the Census adopted the practice of racial self-designation in 1960."
Space does not permit the interesting and amusing efforts of other countries to solve this problem. One popular "solution" is to come up with more terms for the borderline area; "coloured", "non-white", "mulatto", etc.
"Only if the Defendant were incompetent to be executed at the time of the hearing would the Court suspend execution. Ford v. Wainwright, however, probably requires that the Defendant be competent at the time of his execution." -- Varnall WEEKS, Petitioner-Appellant, v. Ronald E. JONES, Commissioner of Corrections, Respondent-Appellee.The courts in a trial of a killer may decide that she may be executed or committed to "mental institution" for a few years based on -- whether the person is sane or insane. With such a wide variation in the penalty, surely there is a clear definition, a clear breakpoint, on what is meant by "sanity". You jest. A good introduction to the issue is at "Silver Bullets II", http://stclguns.homestead.com/SilverBullets2.html .
For oldtimers such as myself it is hard to accept that now even the USA considers torture a legitimate activity in dealing with detainees. Our Justice Department seems to be struggling with just how far it can go legally and ethically in torturing prisoners as evidenced by the various memos that have been released to the press. For the example, see the articles, "Justice Dept. issues rewritten memo on torture", at http://www.washingtonpost.com/wp-dyn/articles/A37687-2004Dec30.html (memo is here) and "Torture Becomes a Matter of Definition" at http://www.kuwaitifreedom.org/media/pdf/Torture%20Becomes%20a%20Matter%20of%20Definition.pdf. A major problem (but apparently not the most serious problem in this case) is what exactly is torture. It is vague, of course.
"Poor" is obviously a vague term with no absolute definition. For your reference, here is a quote from "How 'Poor' are America's Poor?" at http://www.heritage.org/Research/PoliticalPhilosophy/BG791.cfm:
* 38 percent of the persons whom the Census Bureau identifies as "poor" own their own homes with a median value of $39,200.
* 62 percent of "poor" households own a car; 14 percent own two or more cars.
* Nearly half of all "poor" households have air-conditioning; 31 percent have microwave ovens.
* Nationwide, some 22,000 "poor" households have heated swimming pools or Jacuzzis.
"Poor" Americans today are better housed, better fed, and own more property than did the average U.S. citizen throughout much of the 20th Century.
In the U.S., arbitrary breakpoints have been set to divide the poor from the non-poor. I quote from my article, "Poverty's Paradoxes and Intractable Dilemmas" at http://perspicuity.net/MyEssays/SpinTech/lf0201.htm:
The HHS [Department of Health and Human Services], for year 2000, defines poverty in terms of income per family unit size. For a family unit size of 4, for instance, the level is set at $17,050. Now this begs at least two other questions; what is a "family unit" and what is "income"?Why you are not still poor at an income of $17,051 is never explained!
Consider the word "persons" in the Fourteenth Amendment to the U.S. Constitution which grants to "persons" due process and equal protection of the law. Courts have held that corporations are "persons" within the meaning of this provision. Recent American decisions have held that a fetus less than three months old is not a person, but a fetus more than six months old is very nearly a person.
What is considered to be child abuse has changed dramatically in recent years. I can speak from personal experience that the routine punishments, handed out by parents and schools alike 60 years ago, were very harsh (although the evidence appears to me to indicate that it did little harm and may have been helpful!). Yet those same actions today could get the perpetrator a prison sentence.
Most people now would say that whipping a child's bare legs with a switch to the point of causing blood to flow -- as was sometimes done 60 years ago -- could very well be "child abuse". But what about simply giving the child a big hug? Today, many people dealing with children are hesitant and fearful to do just that. A good expose of this situation is presented by Charles L. McGehee's essay, "THE HEISENBERG PRINCIPLE AND THE DETECTION OF CHILD ABUSE AND NEGLECT" at http://www.cwu.edu/~chasm/heisene.htm. I quote:
It should not be surprising that adults who feel themselves threatened by the perceived chance of false accusation of child abuse, may regard children differently than if they were not subject to threat. They may not want to be alone with children, touch them, hug them, help them, indeed do anything that might in any way open themselves to charges.
This is an especially tragic consequence of "vagueness in governance".
See the article "Bill calls for ruling on who is a Mainer".
How many innocent civilians can be killed and/or maimed in a military action that may vaguely be called a "war"? Of course this is vague and has no justifiable value. The actual amount is probably determined by the balance of the military need for "efficiency" of battle and the negative opinion of the public, world and citizens of the warring nation. Since there is no clear breakpoint, the amount of "collateral damage" tends to grow with time.
How many innocent people was it alright to kill to bring Noreiga to trial? Estimates on how many were killed vary from 220 by the US government to three to five thousand by others (see "HUMAN RIGHTS IN POST-INVASION PANAMA: JUSTICE DELAYED IS JUSTICE DENIED" at http://www.hrw.org/reports/1991/panama/ and "What's the Truth on Panama Casualties?", The Christian Science Monitor, October 16, 1991). Even 220 seems excessive to me to just put some nasty guy in jail!
The term, Weapons of Mass Destruction (WMD), is vague and subject to the Sorites paradox. We would, no doubt, all agree that "600 megatons (600,000,000 tons of TNT)", would qualify as WMDs. That is the amount the USA has ready to go to defend our country according to the article, "Overkill is Not Dead", published March 15, 1998 in the New York Times Magazine (online version at http://www.ithaca.edu/politics/gagnon/hall.htm). Of course, one megaton less would still be a WMD -- and so on down to a rifle bullet! Unless my logic is faulty, we must conclude that all countries harbor WMDs, the USA just harboring the most.
How much should the public be allowed to know about what is going on in the government? Access appears to be purely arbitrary and subject to change with time. The Freedom Of Information Act was only passed about 40 years ago and is subject to cancellation in part or whole at any time!
The security classification of documents (Top-Secret, Secret, or Confidential) is purely arbitrary and subject to the whims of those in power. Executive Order 12958 (http://www.archives.gov/isoo/policy-documents/eo-12958-amendment.html) "precisely" defines these levels as follows:
No, I did not make that up.
Some secrecy is probably necessary. On the other hand, it is obvious that a representative democracy cannot function if citizens do not have access to government information. And it does interfere with "justice" as the state often declines to participate in trials and so forth on the basis that it might be damaging to "National Security".
We have a massive military, a massive Department of Defense (DOD), a massive supporting industrial complex, and a budget of billions of dollars spent every year, based on -- a so-called "Military Threat". What is this military threat and how is it established?
Not very logically or systematically! Much of the "threat" comes from the government contractors who will benefit from its acceptance. Much of it comes from politicians who will benefit from the pork they can spread in the area they represent. Some comes from elaborate and expensive studies done by "think tanks".
But no matter what the source, the results are vague and quite adjustable! An excellent example of this is the perceived threat of Saddam Hussien to the USA (see "Official Says Saddam Posed Threat to U.S., Mideast").
We could go on and on, but surely you get the point.
Vagueness pervades our lives from birth to death. While it has some negative impact in daily social and business exchanges, it is also quite beneficial. For without its use, we would hardly be able to speak or write. Dictionaries would be impossible! Yet humans in their natural state accept the possibility of vagueness and do not insist on preciseness. In fact, in many cases the use of vagueness is more useful than preciseness would be. For example, a person might say, "Officer, the thief was tall, with a dark complexion, and had a deep voice." Or someone might say, "My property goes right up to the edge of Wolverton Mountain."
Not a problem -- actually we couldn't live without it. But vagueness in governance is another matter. For in government and legal matters, we are not satisfied with such vagueness when our welfare or even our lives may depend on it or be impacted by it.
To resolve this difficulty, two approaches are immediately evident; let a judge resolve particularly difficult cases or set breakpoints. The trouble with resolving issues with judges is that they are human too and there is ample evidence that they are sometimes not on the up and up. In fact, we must accept that judges, just like the rest of us, are most likely driven by self interest. It is highly possible that that their self interest may not correlate very well with our self interest!
Setting breakpoints on the vagueness curve, then, is the preferred solution for most citizens. For example, we have speed limits rather than just a law that says you shouldn't drive too fast. But not everything is amenable to breakpoints. The most notorious example is the problem of indecency. How do you set a breakpoint for indecent pictures, movies, etc.? It has been tried but with little success. In any case, there are many situations that simply must be decided by a judge.
Laws cannot be written without vague content -- and sometimes they are intentionally vague. Since the breaking of a law can result in harmful and even violent actions by the government, any vagueness can be very dangerous to the citizens. Further, vagueness in the law invites abuse by its enforcers. And enormous waste. And more laws -- which will again be vague.
Politicians use vagueness to control, alarm, and seriously harm the citizens. For example, the fact that "war" is not precisely defined allows presidents to attack other countries, at will, resulting in considerable casualties and death to both the attacked country and our own soldiers. The necessary vagueness of the Constitution results in a steady and serious deterioration of the rights and liberties of our citizens. And democracy itself remains undefined and results in much confusion in the exercise of civic responsibilities and further manipulation of citizens by the state.
Finally, since humans in a natural state find vagueness useful, they are not sufficiently wary of its application by the state. This makes it relatively easy for governments to manipulate their citizens with propaganda that includes vague terms such as "patriotism", "duty", "honor", "bravery", "sacrifice", "the common good", and so on.
We pay dearly for that application of vagueness, up to and including sacrificing our lives for worthless, destructive, and politically motivated, causes.
"The absence of a determinate standard" in a given legal proscription "gives police officers, prosecutors, and the triers of fact unfettered discretion to apply the law and, thus there is a danger of arbitrary and discriminatory enforcement" of such a law.