There Ought Not Be a Law

The world is an imperfect place, but laws tend to make things worse, not better.

Treasury Secretary Steve Mnuchin wants limits on virtual currencies, like Bitcoin, that help people keep their financial lives private from folks like him. Senator Dianne Feinstein wants government regulation of political speech by foreign agents—or maybe just by people with whom she disagrees. Gun control activists want more restrictions with which to threaten peaceful gun owners so that violent predators who break laws will have more things to ignore.

If ever there was a "there oughta be a law moment," we're living in it. At least, we're living in one of all too many such moments. Because people are forever looking to the law as the solution to the ills they perceive in the world around them—often only to spackle over the failures of the previous round of laws. In the process, they're forever forgetting that laws are usually nothing more than codified prejudices, imposed against resistant populations, by sometimes incompetent and often corrupt enforcers.

"The Law is a huge blunt weapon that does not and will not make distinctions between what you find acceptable and what you don't," writer Neil Gaiman responded in 2008 to a question about his opposition to the U.S. federal prosecution of Christopher Handley over the possession of erotic cartoons. The writer had been challenged over free speech advocates' claims that it was difficult if not impossible to clearly differentiate between "acceptable" images and those bound to run afoul of the law. Gaiman noted that he was born the day D. H. Lawrence's Lady Chatterly's Lover became legal for publication and sale in the United Kingdom after years of bans under obscenity laws. Moreover, one of his publishers nearly went to prison over some of Gaiman's work "that contained a rape and murder, and this was held to have contravened a Swedish law depicting images of violence against women. The case was only won when the defense pointed out that the words were from the King James version of the bible, and that the images were a fair representation thereof."

What if the scene was drawn from a source other than the Bible? Would the publisher have still been insulated from prosecution? Maybe even the most careful efforts at applying the law are inherently dangerous.

"I always counsel my first-year students never to support a law they are not willing to kill to enforce," Yale Law School's Stephen L. Carter wrote in 2014. "Officials who fail to take into account the obvious fact that the laws they're so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants."

Carter pointed out that there are now so many laws that there is no easy way of knowing if any given action is legal or illegal. And even the pettiest law, he emphasized in the wake of the killing of Eric Garner by police during a confrontation over the sale of loose cigarettes, requires violence and the risk of death to enforce.

"Don't ever fight to make something illegal unless you're willing to risk the lives of your fellow citizens to get your way," he wrote in closing.

Even that scenario assumes some degree of good faith on the part of prosecutors and enforcers—honest efforts to interpret and apply the law. But what of those police and prosecutors are people just like you and me, subject to all of the incentives, fair and foul, that drive our actions?

"Sending the proceeds of forfeiture to the state's General Fund would result in fewer busts of drug and stolen property rings," Brian McVeigh, president of the Alabama District Attorneys Association, and Dave Sutton, president of the Alabama Sheriffs Association, cautioned in an op-ed opposing legislative efforts to reform the use of civil asset forfeiture in their state. "What incentive would local police and sheriffs have to invest manpower, resources and time in these operations if they don't receive proceeds to cover their costs?"

The implication, apparently perfectly acceptable to the authors, is that police make arrests out of expectation of monetary gain. In fact, in a quarter of asset forfeiture cases in Alabama, no charges are ever filed against the people whose property is seized, making it clear that snagging valuables is more important to many officials than the laws they use to justify such theft.

What would such venality look like in the hands of enforcers empowered by our "there oughta be a law" moment—say, with regard to newly popular gun restrictions?

We might get a hint from the scandal that engulfed Baltimore's Gun Trace Task Force, which is specifically assigned to reduce the availability of weapons on that troubled city's streets. Even before two of the officers were convicted of robbery and racketeering, the Baltimore Sun's Dan Rodricks, who has seen earlier police corruption cases, wrote that "the crimes the GTTF officers are accused of are more brazen, more sinister and, in the midst of Baltimore's long surge of violence, more Gotterdammerung-ish than I imagined." Six other officers pled guilty in the case, department officials torpedoed their own careers through misconduct, and thousands of convictions linked to the task force are now under review.

But this is no surprise. Law is crude, at best. It's a weapon in the hands of politicians seeking to rouse up their base in support of themselves—and against their enemies. It's a tool that people envision as a shield against their fears, but which are then interpreted by enforcers in often unexpected ways, and sometimes for personal gain.

"Criminal law is a blunt instrument that should be used only as a last resort," Orin Kerr, now of the University of Southern California Gould School of Law, wrote in a 2008 article calling for legal restraint when dealing with cyberspace. "The state's power to deny individuals their freedom is an extraordinary power, and it should be reserved for harms that other mechanisms cannot remedy."

Orin Kerr and Neil Gaiman recommend legal restraint, and Stephen L. Carter counsels that "fewer laws would mean fewer opportunities for official violence to get out of hand."

In other words, this is a moment in which should consider the possibility that "there oughta be a lot fewer laws," not more.