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A Reply to Judge Starr's Observations

1987; Duke University School of Law; Volume: 1987; Issue: 3 Linguagem: Inglês

10.2307/1372562

1939-9111

Abner J. Mikva,

American Constitutional Law and Politics

We are no longer the common law courts that perhaps we once were.We are statutory courts.The overwhelming share of our business is the interpretation of what Congress, and the state legislatures, say the law is.I would hope that we engage in some reasoned dialogue with them, and maybe agree on some things, but they are the primary branch of government.A problem arises, then, when Congress does not speak as plainly as we would like them to speak.Why doesn't Congress speak more plainly?Is it because congressmen all have marbles in their mouths?Is it because they are a bunch of dummies?That's not it.At a recent count, forty-four percent of the members of Congress were lawyers.I assure you that most of the actors, the prime movers in the first branch of government, know exactly what the process is about.They understand the use of language; they understand its uses and its limitations.No, the real problem is that we start out with 435 prima donnas in the House and 100 prima donnas in the Senate, and the name of the game is to get them to agree on a single set of words.We are not talking about trying to get Congress to agree on something unimportant or noncontroversial, like whether to declare Grandmother's Day.Instead, we are talking about the hard issues, like the environment, economic decisions and civil rights.Those 535 people that we described are going to find it difficult to agree on an agenda, let alone on the words to describe whatever consensus they reach.The consensus that is reached to get a bill passed in the first place is a tenuous and confused one.Is it any wonder that the words they do finally choose tend to have diffuse and ambiguous meanings?My favorite story along these lines involves Representative Morris Udall's passage of the strip-mining law, Act of August 3, 1977, Pub.L. No. 95-87, 91 Stat.445 (codified at scattered sections of 18 U.S.C. and 30 U.S.C. (1982)).