Now why did I think of Mickey Mouse when I was pondering a post on legislation? Hmmm. Anyway, the careful observer will note two little friends on Mickey’s right hand, and left cheek. An even more careful viewer will note the blond hair near his right foot. I could have cloned this stuff out, but I didn’t. This photo, if you cannot tell, has already been considerably “doctored.”

So, the law. Oops, I mean The Law.

Mrschili (protection of personal rights), Bo (protection of consumers), Pearl (no gay marriage), and possibly others (let us not forget Mr. Coleman, of Weather Channel fame) have been speaking about laws on various subjects, and whether they are needed. I’m tempted to make this a very short post and just state what is well known to all, but seldom mentioned by anyone: People like the laws they like, and don’t like the laws they don’t like. It all depends, as the saying goes, on whose ox is being gored, or, to put it more bluntly, whose economic issues are affected and in which way. Anyway, being a Member of the Bar, and thus legally required to be verbose, I’ll go on. Caveat: I do not know the laws of every jurisdiction, and not all of the laws of any one jurisdiction. There is no legal advice in this post.

1. The Beginning. You need to know about the “Common Law.” Common Law was (is) the law of England as it existed when the entire nascent USA was a British Colony. It was largely unwritten, in the sense of statutes, and was based on ancient notions and court precedents. Everyone has heard of a “common law” marriage. This meant (and may still mean in some states, not Florida which does not recognize common law marriage) that a couple (mrschili and others: in practice this meant, of course, a two-gender couple) who lived together “openly” and “notoriously” for some period of time were considered by the law to be married, for all purposes like legitimacy of children, inheritance, etc. (and, yes, the wife was pretty much a chattel of the husband, with extremely limited legal rights of her own). Forty-nine of the Fifty States of the USA base their law on Common Law, and, indeed, Courts still allude to it at times in written decisions (called “opinions” by lawyers–you know us, why speak directly?). The Odd State Out? Louisiana. Having been under the sway of the French for some time, the law there is based on the Code Napoleon—and thus is referred to as “Code Law.”

Another example of the Common Law to get us on our way. Under the Common Law bars/saloons (”dramshops”) were not liable to the public for any harm which might be caused by a patron who the bar got all drunked up. So, if a fellow got “drunk as a Lord” and rode off in his carriage and ran over, say, David Copperfield, young Mr. Copperfield could not sue the bar which got him drunk. This was the law of our land, too. Some folks thought we ought to protect the public from greedy dramshops and their owners/employees by changing the law (and some folks thought otherwise). So, how to do that? To do something different than the prevailing Common Law requires legislation, a statute. So, some states passed “Dramshop Acts.” Now, if your friendly bartender serves you beyond the point at which a reasonable man would stop, and you go drive and run over, say, Holden Caulfield, young Mr. Caulfield can sue (of course, that doesn’t mean he will win). Not everyone agreed that the Common Law should be changed in this respect, and, to this day (unless I’ve fallen behind), Florida has no Dramshop Act (with narrow exceptions, i.e., changes, to the Common Law).

So, in many, many, respects a large body of our laws in this country are Common Law, to this very day.

[If anyone is still awake, and inclined to read on, take a stretch, get a beverage, a snack, and here we go].

2. The Constitution. Believe it or not, the English have a constitution, it just isn’t written. Our Founding Fathers decided a written one would be better, less to argue about (Ha!). So we got one. Think of the Constitution as a limitation on the power of government. Powers not granted to the government by it, the government does not have. Some powers belong to the States, and otherwise to the people (Power to the People!). So, how does the government carry out its duties and utilize its powers? Laws, Legislation, Statutes (and, shudder, Rules). No long-winded discourse here. The Constitution is not adequate for governance, that’s why a legislature (the Congress) was created. No matter how you slice it, there are gonna be laws, and you ain’t gonna necessarily like ‘em all, or agree they are needed. What limits the laws? The Constitution. A piece of paper can’t stand up and speak, so the Supreme Court (along with lower Courts), does that talking. It’s called Judicial Review (and lotsa people hate it, and when they don’t like the rulings they cry “Judicial Activism,” and when they like the outcome they just keep clipping the coupons on their trust funds and riding around in their yachts). Ahem.

[Surprise, this ain't going on forever].

3. That’s It. Pretty simple, huh? Oh, I forgot to mention: you don’t get a vote. You used up your vote when you elected your Congressmen and Senators. They get to vote (you know, representative government). The only limitation on what laws can be enacted is the Constitution, and whether the Constitution has been violated is up the opinion of judges/justices. Do some laws, although constitutional, make a bigger mess than the one they tried to fix? Sure. Do some laws (again, constitutional) give some folks a leg up over others? Sure. (Most of this time the “leg up” is given to those who least need it, because they have the most sway in Congress, you know, subsidies to huge Agribusinesses, tax breaks to those poor Oil Companies, etc.). Do some laws which you (mrschili, Bo, Pearl, Mr. Weather Channel) or I would have voted against actually do more good than bad? Sure. That’s why no one person gets to be the Big Cheese who decides everything. So, would some folks have voted against the Civil Rights Act of 1964 (or whenever), and the Voting Rights Act? Sure. Would some folks have voted against the law which gives homeowners with mortgages the right to deduct the interest from their federal taxable income? Sure.

Pretty much everything I said above refers to the federal system, but each State has a constitution, a bicameral legislature, and judicial review, and representative government, so it works pretty much the same.

Yay!!!!!! We’re done already. If anyone wants my personal view on any specific enactment, you can ask. If I have an opinion (often I don’t), I’ll share it.

I lied, we’re not done, here’s a brief additional portion about lawsuits.

4. Courts are not Debating Clubs. Mr. Hippy-Dippy Weather Man, Mr. Coleman, wants to square off with Mr. Gore in Court to air out the countervailing rants about Global Warming/Climate Change. What Mr. Coleman has forgotten, if he ever knew, is that lawsuits require real justiciable controversies! “Justiciable” means things for which the Courts can, if persuaded to do so, provide remedies. “Remedies” in Court are things like money; injunctions; divorces; stuff like that. Courts cannot, by their nature, resolve scientific disputes/debates; they cannot declare “the theory that human activity is causing climate chage is not correct, verdict for Mr. Weather.” Ecclesiastical Courts always like to do that. Condemn Mr. Galileo because, as a matter of churchy law, he’s wrong and a bad guy. Of course, he wasn’t wrong, and that’s sorta the point; such issues are way beyond judicial determination, as are religious issues. William Jennings Bryan, a great speaker but numbskull otherwise, wanted a judicial decision that God created everything and that evolution was bogus in the “Monkey Trial.” What did the Court decide? That Mr. Scopes taught evolution in violation of Tennessee law (a fine was imposed, he never paid it, case closed).

You go to Court (sue) with a “cause of action.” That’s lawyer speak for the requirement that a legally-recognized type of dispute is alleged (negligence, assault, breach of contract, trespass (either quare clausum fregit or de bonis asportatis), murder (or other crime) and so forth. What’s Mr. Weather gonna allege? “I’m suing on account of I disagree with Mr. Gore about a scientific issue”? Mr. Coleman, get back on your yacht, and clip those coupons.

Okay, don’t get me wrong, neo-cons are completely anti-intellectual “know nothings.” I know that. They don’t want scientific issues to be resolved by science, but by politics, or judicial shenanigans. Never. Forget. That.

Do I know who is right about Global Warming/Climate Change? No, not for sure, but I haven’t heard anything proposed by those concerned about man-caused climate change that isn’t otherwise a pretty good idea, and since there’s a big downside to ignoring this issue, I’m pretty much on board.