Monday, September 9, 2013

From 1789 to #OpenData2013

The First U.S. Law
I'm looking forward to the Data Transparency conference today in Washington, DC, organized by +Hudson Hollister. You already know this if you've been following this blog, or my tweets (@arihersh), or have had the good fortune to speak with me about legislative data recently.

I will be presenting on [participating in] a panel on legislative data, moderated by +The Cato Institute's Jim Harper (Amazon.com says: if you like this blog, you might like Jim's Open Bills project).

The core of my presentation will be the proposal from my previous post for Congress to launch Operation Clean Desk. Here, I want to give some morsels of historical perspective on the codification process.

The first law enacted after adoption of the Constitution was "An Act to regulate the time and manner of administrating certain Oaths" in 1789. (Check wikipedia or the Statutes At Large, 1789-1799, page 23, if you don't believe me.) Parts of that Act still survive in Title 2, Sections § 21, § 22, and § 25, and Title 4, § 101 and § 102, of the United States Code.

If you take a look at section 25, for example, it is drawn from Chapter 1, section 2 of that first Act, and was amended by an act in 1948. If Congress wants to amend it again (say to allow the Oath of Office to be administered electronically), it would likely have to cross-reference that original act, and the 1948 amendment. That is true even though in practice the law is almost always referred to as 2 U.S.C. § 2. So in effect you would have 3 references in the amendment (1789, 1948 and U.S. Code). By contrast, if Congress wanted to amend Title 4, § 101, it could do so directly without reference to the earlier act. Why? Because Title 4 has been enacted by Congress. How do I know?  Look for the asterisk in this list of U.S. Code titles.

There have been many attempts at codification of U.S. law over the years, starting with the first official codification, the Revised Statutes of the United States (1876, wikipedia link). The U.S. Code structure was first established by Congress in 1926 and the Law Revision Counsel-- an official office to compile the code and prepare codification bills, was established in 1974 (2 USC 285). In nearly 100 years since the Code was first created, about half of the titles have been enacted.

There are currently 8 codification projects prepared or in preparation for Congressional enactment. Technology, and political will, can accelerate this historical project. That would be a tremendous legacy for Congress and a great step forward for government transparency.