The power to repeal is not equal to the power of expiration.
Inspired by Michael Bierut’s 100 Day Project, 100 Days to a Better RVA strives to introduce and investigate unique ideas to improving the city of Richmond. View the entire project here and the intro here.
- Idea: Expiration dates on most ordinances and laws.
- Difficulty: 4 — Possible at the local level, nearly impossible at the state level, impossible at the federal level.
Laws derive their power from the consent of the governed. Because of imperfections in communicating the will of the majority, the United States legal system has failed to keep pace and is rife with less relevant laws, irrelevant laws, and laws that are no longer the reflection of the majority. In order to limit these imperfections, Richmond, Virginia, and the United States of America should attach expiration dates to most laws.
This is far from a new idea. In 1789, Thomas Jefferson wrote James Madison and suggested every law, including the Constitution, should be rewritten every 19 years.
Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to nineteen years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal. Thomas Jefferson1 to James Madison, 1789
The key point here, is that the power to repeal is not equal to the power of expiration. “Sunset provisions” force issues that otherwise lay dormant because of lack of political will and capital or public awareness and capacity.
Yesterday I discussed the legalization of marijuana–something a majority of Americans support. Currently, ending the federal prohibition requires unprompted attention of activists, early political adopters who are willing to take risks with political capital, and an incremental process–and this is for an issue equipped to attract attention. There are thousands of other laws that need addressing that are simply ignored. With a sunset provision, the law would automatically receive attention, while forcing representatives to address issues they commonly ignore.
Sunset provisions could also replace “unsessions” dedicated to ridding books of antiquated laws. The result would be a shorter and and cleaner legal code.
More importantly, repeals can’t keep pace with the reality of life, so emphasis shifts to changes in enforcement instead of legislation. This undermines the rule of law and promotes disregard for the government.
Finally, sunset provisions promote the reevaluation of law. Landmark legislation is often passed and then unravels despite the progress of knowledge and understanding. If government had to reconfirm laws every nineteen years, it would be a simpler way to update the policies.
Sunset provisions aren’t without challenges or risks. They would increase the potential for partisan debt-ceiling-type holdouts. They would also increase the demand on resources. In the case of Richmond, this could be solved by increasing a seat on City Council to a full-time job (Day #091). At the state and federal level, it would be more difficult.
A legal system that is more attuned to the consent of the governed has several benefits and is a noble pursuit. It would be easiest at the local level, but is clearly most needed in the divided halls of the nation’s Capitol.
Love this idea? Think it’s terrible? Have one that’s ten times better? Head over to the 100 Days to a Better RVA Facebook page and join in the conversation.
Photo by: Ennor
- Jefferson, like all of America’s founding fathers, was far from perfect, but, in a way, this quote is an acknowledgement of that imperfection. ↩