Political Column — Procedure and Substance
I have received suggestions from both residents in Dalton Township, and from state level organizations, tending toward having ordinances that are vague and subjective. I can understand the tendency in that direction. Working out laws that will be able to apply across a wide range of situations is difficult. Not every contingency can be covered. Therefore at some point reasonable decision making must come into play. And, that is all true, but there are two major problems with it.
One problem is that courts have ruled multiple times at multiple levels that vague and subjective laws are not enforceable. Defining what vague is can be a large subject in itself, but whatever the definition, it is certain that vague laws create difficulties. The bigger problem is the arbitrary power that it gives to the person in charge. Cesare Beccaria says it well in his book ‘On Crimes and Punishments’, “If the power of interpreting laws be an evil, obscurity in them must be another, as the former is the consequence of the latter.”
Arbitrary power in the government is something to be feared. One of the things I want to do while in office is to limit the power where I, as the Supervisor, have the ability to simply make a choice. There are two types of laws that this applies to, and one set is more important than the other.
Most ordinances are substantive laws. For instance, how far something has to be setback from the edge of a property line. Some ordinances are procedural laws. For instance, the process of appealing a decision. These procedures are what determine the substance. There are legislative, judicial, and executive procedures that are inherent in politics. Clarifying and making these processes objective is one of the most important innovations in the history of civilization. Winston Churchill made the case in his 1938 speech at Bristol University when he said about civilization, “It means a society based upon the opinion of civilians. It means that violence, the rule of warriors and despotic chiefs, the conditions of camps and warfare, of riot and tyranny, give place to parliaments where laws are made, and independent courts of justice in which over long periods those laws are maintained. That is Civilisation — and in its soil grow continually freedom, comfort, and culture. When Civilisation reigns in any country, a wider and less harassed life is afforded to the masses of the people. The traditions of the past are cherished, and the inheritance bequeathed to us by former wise or valiant men becomes a rich estate to be enjoyed and used by all.”
Since being in office I have been working on making changes to both substantive and procedural ordinances. In a township the enforcement process deals with both executive and judicial procedures, and is one of the primary functions of government. In the resolution that I’m working on to start the change of our enforcement procedure you can see the influence of some of these ideas. Here are my first four sentences, “Whereas, an objective process of enforcement is necessary for consistent and just action by the township. Whereas, Dalton Township desires a consistent and just process of enforcement. Whereas, the laws, ordinances, and regulations that govern a society continually evolve in proportion to the beliefs and opinions of citizens. Whereas, the seeking of an ideal justice that balances liberties and obligations requires continual work and adjustment in pursuit of determining the expanse and limitation of both liberty rights and claim rights.” This is the start of a legislative procedure to change a judicial and executive procedure. This is civilization.
Due process is an important part of the legal tradition that has made our society great. It’s codified throughout our history in the Magna Carta from the year 1215, in the Petition of Right in 1628, and in the American Bill of Rights. We do well to appreciate and continue that tradition at every level of government, including the Township of Dalton.