Ruth Bader Ginsburg Channels Barry Goldwater in The NY Times Mag on The Effectiveness of Gov't Action; Leaves Readers Wondering When They Started to Pick Up Their Dog's Doo
From an interesting interview with Supreme Court Justice Ruth Bader Ginsburg in this Sunday's New York Times Magazine. Here's an answer to a question about whether government policies can fundamentally alter social behavior, specifically related to the amount of house work men do:
The Legislature can make the change, can facilitate the change, as laws like the Family Medical Leave Act do. But it's not something a court can decree. A court can't tell the man, You've got to do more than carry out the garbage.
In such a moment, Ginsburg sounds more than a little like Barry Goldwater, who explained his opposition to the 1964 Civil Rights Act during his run for White House as stemming in part from the belief that
You cannot pass a law that will make me like you—or you like me…. That is something that can only happen in our hearts.
This is all well and good, and I think most people would recognize that its general truthfulness. Laws can be written and enforced by courts and still leave many major beliefs and situations largely unchanged.
However, there are also clear governmental actions that very quickly caused changes in behaviors and attitudes that corresponded to the behavior. Prior to the pooper-scooper laws that first passed in the mid-to-late 1970s, for instance, it was totally common (in my neck of the woods, anyway) for owners to let dogs shit wherever they wanted, whether on the street, sidewalk, or other people's lawns. Owners were encouraged to "curb your dog," but that didn't seem to have much effect, especially in public places. Once the laws against it were in place, public dog-shitting not only decreased rapidly, so did the tolerance of it by the general public and, I'm guessing by dog owners. At least in this case, I'm guessing that dog owners didn't just wake en masse one day and decide to start collecting their dog's crap in old bread-loaf bags and tucking it into their waistbans on morning and evening strolls. I'm sure it's fun as hell, but I'm betting you were pushed into it.
Something similar was, I believe, the case with public littering (does anyone else remember that pre-Crying Indian golden age before littering laws when it was perfectly acceptable to toss fast-food remnants out of cars?), seatbelt usage, cigarette smoking, drunk-driving, and other behaviors whose frequency changed in relation to changed legal situations. Laws were changed (in the case of drunk-driving, being loaded started to become grounds for a stiffer sentence in an accident rather than exculpation) and not simply behavior but mental shifts occurred as a result. It didn't just because illegal to dump shit from car windows, it became unseemly. The increasing sense of smokers as pariahs comes at least in part from the fact they are no longer allowed in public the way they used to be (not saying this is a good thing, but it is a thing).
The laws did not do all the heavy-lifting; in many cases they simply served as official certification of a trend in social thought and behavior that is well underway. Hence, mandatory seatbelt legislation came into existence after a growing understanding that it was a small inconvenience with a large payoff in terms of increased safety (that seatbelt laws, emphatically passed as secondary enforcement measures for which cops could not pull drivers for, are now primary enforcement codes, meaning that police can do exactly that, shows how such rules expand in negative ways very quickly).
To bring it back to the Supreme Court and the law's ability to radically restructure social behavior (say, between men and women or blacks and whites) in the United States, I think legal expert Mark Tushnet got it right a few years back in an interview about his book, A Court Divided:
If you're trying to chart the direction of the country–and I'll make up a number here–95 percent of it is due to changes in culture and politics. The Court can have some influence on the margins, pushing things a little further in the direction that they're already moving or sometimes retarding the direction. But 10 years down the line, the society's going to be pretty much where it would've been even if the courts hadn't said a word about it. I've used a metaphor from sound engineering. It's "noise around zero." It sort of fluctuates up and down around the trends, so sometimes they're ahead of the trend. Sometimes they're behind the trend. The reason why the Rehnquist Court's economic conservatives won and its social conservatives lost is because that's what was generally happening in American politics.
More from Tushnet here. And recall his words during the wrap-up of the Sotomayor hearings and the next few years, too.
So laws are not the be-all and end-all, but in some cases, they do force or encourage some pretty clear-cut changes. However much anti-discrimination laws can be abused in everything from hiring to school admissions to redefining "public" space—and however much their passage reflects already-changing cultural mores—does anyone seriously doubt that once legal barriers to entry were fully outlawed, that the Strom Thurmonds and George Wallaces of the world didn't almost immediately start figuring out how to adapt not just outwardly but inwardly too? Sometimes the way, or part of the way, to the heart may just be the law.
To return to Ginsburg's example, new research by Mark Aguiar and Erik Hurst shows that between 1965 and 2005, the average man increased his hours of child care per week from 1.6 to 3.4 and his "total nonmarket work" (a category that includes a lot of house-related tasks) from 9.8 hours to 13.3 hours per week. Women still do much more in the house (their child care figures are about double that of men) but it's also true that expectations have changed considerably and are moving in a more egalitarian direction.
None of this, of course, is meant as a brief for social engineering via government. And in the case of odious institutions such as segregation, it's always worth remembering that it was individual liberty to contract and right of association that was being denied by Jim Crow laws forced single regimes on all interactions. But libertarians often too steeply discount not simply the legal framework in which behavior occurs but the impact that that framework has on the attitudes that further shape and reinforce or resist a given situation.