THE RULE OF LAW: A SYSTEM DESIGNED TO FAIL
There is a principle so deeply embedded in our legal system that every citizen is presumed to know it: ignorance of the law is no excuse. You are expected to know the law, follow the law, and accept the consequences if you don’t. This principle is drilled into us from childhood. It is the foundation upon which every criminal prosecution, every civil penalty, and every government enforcement action rests. If you break the law, it doesn’t matter that you didn’t know — you’re still guilty.
On its face, this sounds reasonable. A society needs rules, and those rules need to be enforceable. If ignorance were an excuse, no one would ever be held accountable for anything. But there is an unspoken requirement built into this principle that no one wants to talk about: if citizens are expected to know the law, the law must be knowable.
And it isn’t.
THE LAW IS NOT WHAT THE LAW SAYS
Ask any attorney what a statute means, and the first thing they will tell you is: “It depends.” It depends on how the courts have interpreted it. It depends on which jurisdiction you’re in. It depends on which judge you’re standing in front of. It depends on whether the court that interpreted it ten years ago still agrees with its earlier interpretation today. It depends on whether a higher court has overruled that interpretation, modified it, limited it, expanded it, or simply ignored it.
The words on the page — the words the legislature voted on, the words the governor signed, the words published in the official code — those words are merely the starting point. What the law actually means is whatever a judge says it means, on the day he says it, in the context he chooses to apply it, subject to reversal by another judge who disagrees.
This is not the rule of law. This is the rule of judges.
THE IMPOSSIBILITY OF COMPLIANCE
Consider what a citizen must do to actually “know the law” as the system demands:
Step 1: Read the statute. This sounds simple enough. Go to the official code, find the relevant section, and read it. But the statute was almost certainly not written in plain English. It was written by attorneys, for attorneys, using terms of art that do not mean what an ordinary person would understand them to mean. The word “income” doesn’t mean what you think it means. The word “person” doesn’t mean what you think it means. The word “includes” doesn’t mean what you think it means. Each of these words has been defined, redefined, interpreted, and reinterpreted by decades of court decisions that may or may not still be good law, if they ever were.
Step 2: Research the case law. The statute’s words are only the beginning. To know what the statute actually means — in practice, as enforced — you must research every court decision that has interpreted it. These decisions are scattered across hundreds of volumes of case reporters, spanning decades or centuries. Many of them contradict each other. Some have been overruled. Some have been partially overruled. Some have been distinguished as irrelevant. Some were wrong when they were decided and have never been corrected. And you won’t know which is which without a legal education and access to databases that are restricted to attorneys.
Step 3: Determine which interpretation controls. Multiple courts may have interpreted the same statute differently. A trial court in one county may read it one way. The court of appeals may read it another. The Supreme Court may not have addressed it at all. Federal courts may interpret the law differently from state courts. And if you’re in a state that has changed its constitution, older interpretations may no longer apply — but no one has explicitly said so, so the old cases still sit in the reporters looking like valid law.
Step 4: Hire an attorney. Because you cannot possibly complete steps 1 through 3 on your own — not because you lack intelligence, but because the system was designed so that you can’t. The research databases are restricted. Legal education is gated by three years of graduate school and a bar examination. The professional organizations actively prevent non-lawyers from accessing the tools necessary to understand the law. And the cost of hiring someone to navigate this system starts at $500 per hour. All the while, remember these attorneys are in a fraternity and will only go so far in pushing a point, usually until you run out of money.
Step 5: Hope your attorney is right. Because even attorneys disagree. Even judges disagree. Even the Supreme Court disagrees — with itself, in 5-4 decisions that reverse prior 5-4 decisions. The “law” you’re expected to know is not a fixed, knowable set of rules. It is a shifting, contradictory, constantly evolving body of judicial opinion that changes with every new case, every new judge, and every new political climate.
And you’re expected to know all of this. Because ignorance of the law is no excuse.
THE CONTRADICTION THAT DESTROYS THE SYSTEM
The principle that ignorance of the law is no excuse presupposes that the law is knowable. If it is not knowable — if determining what the law actually requires demands specialized education, expensive professionals, restricted databases, and years of research that may still produce the wrong answer — then the principle is not a standard. It is a trap.
You are told: follow the law or face consequences. You ask: What does the law require? You are told: hire an attorney. You hire an attorney. Your attorney says: It depends on the court, the judge, and the current state of the case law. You ask: So what do I do? Your attorney says: ” This is my best interpretation, but I can’t guarantee a court will agree.
That is not a knowable law. That is a guess — an educated guess, made by a professional you paid hundreds of dollars an hour to consult — and it may still be wrong. And when it is wrong, you face the consequences. Because ignorance of the law is no excuse. Even when the law itself is unknowable.
THE COURTS MAKE IT WORSE
If the problem were merely that statutes are poorly written, there would be a simple fix: rewrite them in plain language. But the problem runs deeper than drafting. The courts have created an entire layer of law that exists nowhere in any statute — judicial doctrines, implied rights, constructive rules, balancing tests, and multifactor analyses that are invented by judges and applied as if enacted by legislatures.
Qualified immunity does not appear in any statute. Sovereign immunity as applied to a state’s own citizens does not appear in the Eleventh Amendment. The “intelligible principle” test for agency delegation does not appear in Article I. Substantive due process was not written by any legislature. The incorporation doctrine was not enacted by any Congress. These are judicial inventions — rules created by courts to fill gaps they perceived in the law, or to reach outcomes the text did not support, but they do.
And they change. A doctrine that has been the law for decades can be reversed in a single opinion. A precedent that generations relied upon can be overturned by five votes. The citizen who followed the law as it was understood yesterday can find himself in violation of the law as it is understood today — because a court changed its mind.
The law is not just unknowable because statutes are complex. It is unknowable because courts constantly rewrite what the statutes mean, invent new doctrines that appear in no statute, and reverse themselves without warning. The citizen is expected to know not just the law as written, but the law as judicially amended — amendments that occur without notice, without a vote, and without any mechanism for the citizen to learn about them until it’s too late. Worse, that happens with no mechanism for citizens to fix them.
THE BAR ASSOCIATION PROBLEM
The system’s unknowability is not accidental. It is maintained — deliberately — by the institutions that profit from it. The legal profession has a structural incentive to keep the law complex, inaccessible, and dependent on professional interpretation.
Bar associations restrict who can practice law. State statutes make it a crime for non-lawyers to provide legal advice. Legal research databases are gated behind professional subscriptions. Law schools charge hundreds of thousands of dollars for an education that is largely devoted to learning how to navigate the complexity that shouldn’t exist in the first place.
If the law were written so that an ordinary citizen could read it and understand it — which is what the rule of law requires — the legal profession as it currently exists would shrink dramatically. The complexity is the product. The unknowability is the business model. Every layer of judicial interpretation, every contradictory precedent, every multi-factor balancing test that requires years of study to apply — all of it creates demand for the professionals who charge by the hour to navigate it.
This is not a conspiracy theory. It is economics. A knowable law requires fewer lawyers. An unknowable law requires more. The system produces what the system incentivizes.
THE CONSTITUTIONAL VIOLATION
The Due Process Clause of the Fifth Amendment provides that no person shall “be deprived of life, liberty, or property, without due process of law.” Due process requires, at a minimum, that the law provide fair notice of what conduct is prohibited or required. A law that is so vague that a person of ordinary intelligence must guess at its meaning violates due process. Connally v. General Construction Co., 269 U.S. 385 (1926).
A system that requires citizens to know the law — while making the law unknowable without professional assistance that most citizens cannot afford — does not provide fair notice. It provides the appearance of notice. The statute is published. The code is available. But what the statute means — the thing the citizen actually needs to know to comply — is buried under layers of judicial interpretation that are inaccessible, contradictory, and constantly changing.
If a single statute can be void for vagueness because a citizen cannot determine what it requires, then a system that makes all law effectively unknowable is void for the same reason, just at a larger scale.
THE FIX IS SIMPLE
The law should mean what it says.
If a statute is written clearly enough that an ordinary citizen can read it and understand what it requires, then that plain meaning should control. No judicial interpretation should be necessary. No precedent should be required. No attorney should be needed. The citizen reads the law, understands what it says, and follows it.
If a statute is not written clearly enough for an ordinary citizen to understand, it should be invalid, not because citizens are incapable, but because the legislature failed in its fundamental duty to write laws that the people it governs can comprehend. The remedy is not judicial interpretation that adds another layer of complexity. The remedy is for the legislature to rewrite the law until it is understandable.
This is not a radical idea. It is the only idea that is consistent with the principle that ignorance of the law is no excuse. If you’re going to hold people to a standard, the standard must be knowable. If it isn’t, the system has failed — not the citizen.
This is the principle behind the proposed Twenty-Eighth Amendment (link below): all laws shall be interpreted by their plain meaning as an ordinary citizen would have understood them at the time of enactment. If the plain meaning cannot be determined, the law is void. Courts may not supply meaning where text is silent. Silence in the law is not authority to act.
Under that standard, the law becomes what it should have been all along — a set of knowable rules that citizens can read, understand, and follow without hiring a professional to tell them what the words on the page actually mean.
Until that happens, the rule of law is a fiction. What we have instead is the rule of interpretation — a system where the words on the page are merely suggestions, the real law is whatever the courts decide it is on any given day, and the citizen is expected to know all of it, follow all of it, and accept the consequences of getting it wrong.
Because ignorance of the law is no excuse. Even when the law makes it impossible to know.
Glenn Hancock