To solve this problem we need for judges to abandon the presumption that people know the law, at least where regulatory crimes are concerned, and require some proof that the accused knew or should reasonably have known that his conduct was illegal. Alternatively, Congress should adopt legislation requiring such proof. (And I would favor allowing defendants in any action brought by the federal government — civil or criminal — to have the option of arguing to the jury that the government’s action against them is unfair or biased, with the charges dropped and legal fees being charged to the government if the jury agrees.)

Under the vagueness doctrine, a law is void if a person of reasonable intelligence would have to guess at its meaning, because it would be unfair to punish someone for violating a law that cannot be understood. It seems just as unfair to punish people for violating a law that they couldn’t reasonably be expected to know about.

Law that can’t be known is no law at all. If we wish to remain a nation of laws, Congress and the courts need to address this problem, before it’s too late.