Slate contributor Tim Wu was online at Washingtonpost.com on Thursday, Oct. 18, to discuss the legal nuances of tolerated lawbreaking in America. An unedited transcript of the chat follows.
Lubbock, Texas: This is more of an observation rather than a question, but wouldn't you say that a lot of these antiquated laws on the books are left that way and not taken off the ledger as a redundancy in a rather cynical attempt to catch perpetrators in oddball situations, when other conventional laws that are violated fail to bring about a conviction? In other words, they're a way to finally get the guy you (the cops and DA) really hate, but were not able to convict because of an acquittal of a regular crime. I give, for lack of a better example, Al Capone—who was never convicted of any racketeering crime, but who eventually was convicted of income tax evasion. If we don't "getcha" on this count, we'll get you on something else, but by God we'll get you!
Tim Wu: I think today's system does give prosecutors alot of power to just "get the bad guy," whoever they think that may be. Al Capone is the famous example, but he isn't alone.
Whether that's a system we like—where we might all be potentially be arrested if someone thinks we're bad—is one of the questions the series raises.
Arlington, Va.: For the sake of fairness, should there be more of an effort to eliminate or at least reform outdated laws so that a renegade prosecutor doesn't abuse the discretion he/she has been given to enforce the law?
Tim Wu: Thomas Jefferson argued that laws ought expire after, I think it was, 19 years, to give every generation a chance to decide what's what. That may sound extreme, but perhaps at least in the criminal law, the corpus of the law ought expire every 25 years ago to bring about a new debate on what should be illegal.
On the other hand, that would keep Congress awfully busy, and they might just make things worse every time.
Arlington, Va.: Hi Tim, I enjoyed your series on Slate. While much of what you brought up was new to me, I've spent a lot of time thinking about selective enforcement in other arenas. Quite honestly, I find the practice terrifying. Laws have gotten so complex that most people are criminals to some degree, and the only saving them from prosecution is the "kindness" of the law enforcement community. If someone decides you're an undesirable, they can come at you for any number of things. And anyone who's gotten a speeding ticket knows, "but everyone else was doing it" is not an adequate legal defense.
Tim Wu: Thanks for this comment.
Washington: What about tearing tag off mattress? How much time will that get you?
Tim Wu: Ha, please consult your counsel.
Orange Park, Fla.: Read Wisconsin v. Yoder 406 U.S. 205, (No. 70-110 Argued: December 8, 1971; Decided: May 15, 1972). Per the Supreme Court of the United States: For the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age 16. May I refer you to this Web site for the ruling. So you see, in this regard the Amish are not lawbreakers and haven't been lawbreakers since 1972. This case is a landmark First Amendment case and I am surprised you are unaware of it.
Tim Wu: Thanks. That case was discussed in the Amish Slate story, I hope you read that paragraph.
I'm not down on the Amish by any means. But if you're trying to say that the case excuses all of the alleged law-breaking that the Amish have been engaged in, that's not the holding of Yoder. Yoder does cover the education issue, but not child labor, social security, etc. On the other hand, these others have been exempted by Congressional action.
As I said, the Yoder have more or less settled with a sympathetic Congress and Supreme Court over the 20th century.
Westby, Wis.: You contrast the success the Amish have had with opting out of mainstream education with the difficulties the Mormons have had with legal tolerance of polygamy and the peyote ban for Oregon's Native American. Do you think this different treatment has more to do with how comfortable we are with the group or the activity? For instance, our culture has a lot more hangups about sex (polygamy) and drugs (peyote issue) than we do about educating our kids.
Tim Wu: I think that's exactly at the core of it. I didn't have time to get into this in the story, but I was hoping to imply it.
One theory: The U.S. is predominantly Christian, or if not practicing, raised with roughly Christian values, and one idea of why the State has been kind to the Amish is that their conduct is appealing to a Christian mindset. In a sense they are actually just better Christians than the rest of us.
Some examples. They actually follow the hard bits in Matthew about not accumulating wealth, (you cannot serve two masters) and really do seem to follow the injunction "But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also."
In particular the latter injunction is only rarely part of American practice.
So in other words, I am guessing that when Americans or U.S. judges react to the Amish it is with much sympathy. Same with the Boy Scouts as I wrote in that piece.
On the other hand, the mormon fundamentalists, while their beliefs by all accounts are just as sincere as the Amish, are claiming to be originalists to Joseph Smith's teaching, which most of us weren't raised with.
Short version: I agree.