Tell It to the Judge
Tim Wu takes readers' questions on the laws Americans can seemingly ignore.
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.
Poughkeepsie, N.Y.—a future lawyer at Vassar: It strikes me that the sex laws of many states (i.e. those against oral, anal, fornication, etc.) would fit under the category of unenforced or marginally enforced laws. The Supreme Court in Lawrence v. Texas seems to have scaled back those types of laws. Because these laws are very rarely enforced, as the Texas sodomy law surprisingly was in the Lawrence case, the courts have a limited role in examining them. What role do you think the courts will, should and do play in cleaning up the law's dead zones? What is your take on state sex laws today, especially in the framework of legal dead zones?
Tim Wu: This is an answer to this question, and also the other question about the judiciary.
Whether the judiciary should clean up "dead" or "outmoded" laws is an enormous controversy that many, many have written about. Judge Calabresi on the 2d Circuit wrote a book about this problem and some of the ways of "sunsetting" laws passed in earlier times.
The controversy comes because the main tool the court has for cleanup is the constitution—it has to declare the old law unconstitutional. And in a sense this is alot of what the court did in the 60s and 70s with Griswold (striking down laws banning contraception), Roe v. Wade (abortion), Yoder (education), and others.
As you can see, it soon becomes quite a controversial undertaking. In the 60s and 70s, many on the supreme court may have felt that that they were simply clearing up old and out of date laws like bans on capital punishment, abortion, contraception, obscenity, etc., but others had a different word for it: unwarranted judicial activism.
I don't want to enter that debate here: I want to show you whee your question leads.
Lexington, S.C.: I kind of like the idea of wiping out all the laws on the books and starting over with the Constitution. There isn't a law on the books that isn't covered in the Constitution.
Tim Wu: You and Thomas Jefferson had the same instinct
The earth belongs always to the living generation. ... The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. ... Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.
Alexandria, Va.: So I'm dying to know what laws I probably am breaking in Virginia—liquor, driving, anything.
Tim Wu: I used to live in Virginia, and the code of Virginia certainly has some old stuff in it.
Washington: The tone of your article and your quote ("that view excepts children and animals as victims, but not consenting women and men who have sex before cameras") make clear that your goal is to just repeal everything now. Your position may be popular with bourgeouise "libertarians," but when you think about it Wu World would be a horribly violent, corrupt, utterly anarchic place.
Tim Wu: Thanks. I live in Wu world and its a nice place.
Everyone reads what they want to in a piece. If pressed I'd say that yes we should obviously have laws banning anti-social activities, but work to make it as clear as possible exactly what's illegal and what's not, so that people can live their lives in peace. And have those laws, as close as possible, match what people really want.
I don't think that's too much to ask from our political system; but what we have instead is sort of a large cloud of illegality from which thunderbolts came come down unexpectedly; that doesn't strike me as ideal, quite; not necessary to a peaceful country.
Washington: Is "this law has never been enforced before, so that's a precedent for letting me off" a valid defense if one is charged with, say, injuring a mailbag?
Tim Wu: I'm sure injuring a mailbag was a big deal at some point in history! haha
Washington: Gotta love Westlaw addicts. I like the idea of laws expiring after 19 years. Democracy is supposed to be based in part on the consent of the governed. If asked, I wouldn't consent to be governed by old men who have been dead for hundreds of years (except for the really good ideas—like the law expiring after 19 years). Though if that were the case, the things we like doing when we're young (wearing our pants too low, for example) might not be legal until we're too old to enjoy it. Our lax enforcement of certain laws, however—how much of that is based in true ambivalence to prosecution, rather than a rise in violent crime, terrorism, etc., such that our resources are just too stretched to bother? If things worldwide were calmer, wouldn't the instinct of a society be to constrict and reorganize our values to more conservative social standards?
Tim Wu: I'm an altlaw addict—www.altlaw.org
Good question. If we had infinite prosecutorial resources, would everyone end up in prision? If this were a science fiction story, you might imagine a future where so much money goes into law enforcement and anti-terrorism that we're all in jail half of our lives.
Of course I doubt it; as I suggest in the series and others writer, we have the laws, then we have the real laws, which are what prosecutors and others really want to arrest people for.
North McLean, Va.: This may seem silly, because it is, but isn't the recent uproar about Ellen DeGeneres and her dog an example of where selective enforcement might have been prudent? That is, if the adoption agency had "bent the rules," much hassle would have been avoided.
washingtonpost.com: Woman Claims Threats Over DeGeneres' Dog(AP, Oct. 17)
Tim Wu is a Columbia Law School professor and has written for the Washington Post "Weekend" section, Forbes, Playboy, and others. He co-wrote Who Controls the Internet: Illusions of a Borderless Worldwith Jack Goldsmith.