law & order & checks & balances

Nick Gillespie has an interesting post up about laws and social behavior over at Hit & Run:

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-scopper 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).

I think it’s also important to note that littering laws, pooper-scooper laws, and other similar public-space type laws were all enacted at the local level, and then adopted pretty quickly across the country.  (Littering laws, of course, also exist on state roads, freeways, etc.)  I suppose the point here is that as a general rule of thumb, the closer the government is to the people who are involved in writing the laws and who are effected by the laws, the better and more responsive those laws will be.  And if they’re effective, they’ll catch on and spread organically from city to city – like the smoking bans that recently swept the nation (which I think are a lot less sensible than littering laws.)  A national law requiring dog owners to pick up after themselves would be impossible to enforce.

On the flipside, of course, is the fact that there have been times in our nation’s history when local governments or state governments have passed laws that are simply downright unconstitutional.  Think Jim Crow.  Go back a few decades to all the various segregation laws that governed many localities in the South.  At some point local and federal governments must act as checks on one another. Typically, though, I’d say the feds should only step in to remove bad laws, not to impose new ones.

So we come to the Matthew Shepard Act, the hate crime bill that’s currently under debate.  Hate crime legislation doesn’t really fall into either the category of enforcing a new law, or repealing an old one.  On the one hand, it doesn’t really do anything to prevent hate crimes directly, besides threaten harsher punishments for committing them.  I’d say the nature of hate crimes doesn’t really lend itself to rational thinking, so that sort of threat probably falls on deaf ears.  Such is hate.

On the other hand, what hate crime legislation does is allow the feds to step in and prosecute the perpetrators of hate-motivated violent acts if local governments aren’t able to, or simply aren’t willing.  You can see how this fits into the repeal of segregation laws.  Sometimes inaction in the justice system is an injustice.  I’ve known private investigators who have described the local justice systems in places they work as hopelessly corrupt – captured by the good ol’ boys; rife with nepotism.  Judges and police turn blind eyes to unsettling problems.  At some point, you have to ask – is justice better served if there is the possibility of a less compromised level of government stepping in to  prosecute those who might face little to no retribution for their crimes otherwise?

Most of the problems with discrimination and corruption are caused by government, and most of the steps taken toward equality have been steps to break down bad laws.  Corrupt local governments have power because they have the law on their side.  Recall the excellent Clint Eastwood film, Unforgiven.  The villain was the sheriff, who used the law to shore up his own power.  Similarly, prohibition laws led to the rise of organized crime in the early part of the 20th century.

I was watching Milk the other day, and the struggle in that film was not the gay community vs. society, it was a struggle of the gay community vs. the impositions of the state – against the tyranny of the (moral) majority.  Had the cops been given less power, they would not have been able to go into gay bars and beat people up.

Of course, it’s awfully hard to prove intent.  It’s awfully hard to determine whether a crime was a hate-crime or not, which may neuter the law from the get-go.  Still, at some point there needs to be a check placed on corrupt local governments.  The nature of our system relies on constant checks on power.  In this matter, I don’t see the capacity of the federal government to intervene as a last stage against a potentially inept or corrupt local justice system as too intrusive.  Whether or not it will be terribly effective is another matter, but I don’t see that it will be terribly hurtful either.  Am I missing something?

The next step is to find more ways to check the feds.  Wouldn’t it be neat if we had some clause declaring that only congress had the power to declare war?  That would be an excellent check on executive power.  Somebody should get working on that….