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.
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Arlington, Va.: For the sake of fairness, should there be more of an effort to eliminate or at least reform outdated laws so that a renegade prosecutor doesn't abuse the discretion he/she has been given to enforce the law?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.
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: Hmm I'm not an expert on dog law.
I had a dog growing up but it was pretty obedient, no run-ins with officer daschund.
Washington: Dear Mr. Wu. Whenever I read about something like a kid getting expelled for bringing aspirin to class I have sympathy for the position of selective enforcement of laws. That said, don't we also run the risk of losing the rule of law and reverting back to the rule of authority? If we can't rely on laws protecting our rights, what will?
Tim Wu: I'm not an anarchist. I'm not the anti-christ. I don't wanna destroy!!!
I think there are core laws—mostly related to physical security, that any country must have to be peaceful. Basically the laws Hobbes had in mind.
Then there's a whole host of experimental or optional laws—laws that we are trying but may or may end up useful. 100s of years later, we'll know.
Like laws against insider trading, prohibition, bankruptcy law, patent, antitrust, telecom, etc. etc.
Not that these latter laws are necessarily bad. Some are clearly good and make the country better. But just because they are laws we shouldn't forget that they are also, in the end, experiments. They're like furniture in the living room of the nation-state, they are supposed to make our lives better.
But if they don't work, they should be abandoned, or changed. That's what I want people to take from this series.
This series, by the way, is going to become a book, so watch for that..
Washington: Several years ago the boyfriend of a friend of mine stabbed someone. She fled the scene and was arrested and charged with literally seven crimes. After she agreed to be a witness and paid for a high-powered lawyer, all but one charge was dropped and she was convicted with a suspended sentence because of time served in lockup. I found her story profoundly disturbing because the charges weren't real and wouldn't have stood up in court, but they were levied against her as a negotiating tool for her to put her boyfriend away. I mean, the guy was guilty so she needed to testify, but it wasn't a murder mystery novel where the character let introspection guide her to justice—she was jailed, couldn't work, and her name was splashed across the newspapers.
Tim Wu: Thanks for this story.
It does surprise me in a country with America's libertarian leanings, that we put up with this kind of stuff.
While this is a big topic, I think there should be more oversight of prosecutors, and of the legal profession in general. Nothing good happens when power is unsupervised.
Alexandria, Va.: The problem with Jefferson's 19-year idea is that any legislature doesn't want to debate about what's illegal—it riles up the voters. So they turn it over to the judiciary, which ignores the outdated laws. Then the legislators complain about "activist judges."
Tim Wu: That's the cycle! Good point.
Thanks and sorry for the typos and the questions I couldn't get to. I think I wrote "Yoder" when I meant Amish at some point.
Look for an expanded version of this series, as I said before, in book form in a year or two..
Minneapolis: Great series, Professor Wu. The best analyses seem self-evident right after reading them. However, you've focused mainly on how the legislative and executive branches "honor in the breach" so to speak. Please expand upon the role(s) you see the judiciary playing in this process.
Tim Wu: See above.
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.