Americans generally pass laws as a statement of public morality. We would be equally horrified to see them repealed or enforced. Speed limits, for instance, are rarely enforced. When they are enforced, it is either in really egregious cases where public safety is grossly endangered, or purely for the purpose of raising revenue or keeping some group of social inferiors in their place. The one thing we clearly don’t intend to do by setting a 55-mph speed limit on a highway is to keep all traffic moving at or below 55 mph.
Most Americans don’t believe in speed limits. They will tolerate (just barely) being ticketed for exceeding them by outrageous proportions, but they respond with rage to being forced to obey the limit by being stuck behind some driver doing the exact legal speed. “Nobody can tell me how fast to drive,” as one driver said in response to a Chicago Tribune poll some years ago. It seems not to occur to them that, by tailgating slower drivers, or zooming by them, or even sideswiping them, at speeds considerably above the limit, they are telling those slowpokes how fast they have to drive. We not only have no right to enforce speed limits, we have no right to obey them.
Our drug laws work pretty much the same way. If we really intended to stop all use of “illegal” drugs, and all underage use of alcohol and tobacco, we would have to devote a lot more resources to the problem than we are willing (or able) to do. There are two alternatives (other than repeal) to a serious enforcement program. One is to go after only the big traffickers, and the other is to go for the largest number of users and sellers. We have, clearly, chosen the latter. It gives us the illusion that we are benefiting society as a whole, when we are actually creating a lot of misery.
Similarly, our laws on abuse of spouses, children, elders, and so on, laudable as they are, were necessary only because we rarely bother enforcing our laws against simple assault and battery, or even against the aggravated species, where non-strangers are involved, even though those laws contain no such exception. Now that we have decided people ought not to be allowed to beat up on those near and dear to them, we have to pass a whole new body of laws to do the job.
Almost every legislative aide, whether on federal, state, or local level, has had the experience of being asked by his/her legislative boss to research and draft a bill dealing with some outrageous current problem about which the boss’ constituents are especially concerned, only to have the research reveal that a law forbidding the conduct in question has already been on the books for several decades, basking in obscurity. Most often, the boss’ response is not to start a campaign to enforce the old law–s/he will still get better publicity and mileage with the voters by pushing a new law, however redundant. And, I suspect strongly, most voters really don’t want to encourage the enforcement of obscure statutes already on the books. Most of us are well aware that we probably violate dozens of such laws every day, and could not possibly afford to pay the penalties for all of those violations.
Americans love to pass laws, but we don’t much like obeying them. For example, next time you see somebody smoking near you in a no-smoking area, try telling him it’s against the law. Chances are, the smoker will respond, at best, with a sneer, and at worst with outright physical violence. Now have a confederate come along and ask him/her to stop because it really kicks up the confederate’s asthma. Chances are, the smoker will gladly comply, and may even apologize. We are nice people, but we are anarchists at heart.
Americans also mostly don’t like religious rules. It is the presence of rules and authority that constitute the difference between “religion”, which most Americans are uncomfortable with, and “spirituality”, which we are currently in a desperate search for. The Augustinian “love God and do what you will” appeals very directly to us. Most of the people who have fled the Catholic church over the last thirty years have done so in reaction to its rules against contraception, divorce, and eating meat on Friday. The church never did back down on the birth control ban, but has devised numerous ways around the ban on remarriage after civil divorce, and has totally scrapped meatless Fridays. Now, interestingly enough, it is trying to reintroduce them, but not (heaven forbid!) as a “rule.” Now it’s a “spiritual practice,” (which is probably what it should have been all along), and it may make a successful comeback in that capacity.
Interestingly enough, the Europeans always viewed such rules the way Americans view speed limits, and had no problem maintaining some attachment to the church while completely ignoring the rules. Americans, on the other hand, felt obliged to take them seriously, on the pain of “hypocrisy.” Generally speaking, we reserve that term for the purely moral realm, for anyone who aspires to be good but has not yet attained perfection. In other areas of our lives, most notably politics, hypocrisy is not only permitted, it is obligatory. The Republican Party’s current leaders are all men who uphold “family values” and military service to the country, and almost all of them have been divorced and remarried at least once and managed one way or another to avoid service in the Vietnam War (although they never publicly opposed it.) The Democrats, on the other hand, are led mostly by men who are still married to their first wives, with varying degrees of fidelity. Some of them served in Vietnam, but even some of them believed at the time, and all of them believe now, that it was a bad idea.
Indeed, the Republicans, while deploring adultery and the movement for gay and lesbian rights, have a remarkable number of closeted adulterers and homosexuals among their number. The “big tent” is more like an overgrown closet. And it is the closeting that matters. The Republicans believe in the civilian equivalent of “don’t ask, don’t tell.” What people do in their own bedrooms is their own business, they believe–as long as the rest of us are equally free to discriminate against them for doing it, if we find out.
“You can’t legislate morality,” is a hallowed American maxim. The usual evidence for this statement is the ostensible failure of the Volstead Act. One of the better-kept secrets of American history is that the Volstead Act succeeded in some very significant ways, such as reducing the number of industrial accidents and of deaths from cirrhosis of the liver. Because no statistics were collected at the time about either drunk driving or domestic violence, we will never know how much these were also reduced, but we can certainly guess. What we mean by saying Prohibition “failed” is that it did not change our fundamental views on the moral acceptability of alcohol. In that sense, the laws against underage drinking and smoking, and the speed limits, have “failed” too. On the other hand, the civil rights laws have succeeded in those terms. Most of us now really believe that racial discrimination is wrong. Even those of us who practice it are embarrassed to admit it and indignant if accused of it.
Unenforced and unenforceable laws, like New Year’s resolutions, are mostly just expressions of the people we wish we were, but not to the point of being willing to work at it. In this capacity, they’re pretty harmless. But as long as they are still “on the books”, with legal penalties attached, they are dangerous. They have a pernicious potential for blackmail and discrimination against unpopular and powerless people.
We are never, of course, going to comb through our statute books and rip out any law that has not been enforced within the statute of limitations on it. That would involve admitting that our aspirations are doomed to failure, and that we will never be the people we want to think we are. But there are ways around this conundrum. Moral aspirations fit very nicely in preambles and introductory paragraphs in which legislators set out the reasons and purposes of legislation. “Sense of the Congress” statements can serve the same purpose. The Supreme Court could easily take on a case involving a defendant convicted under a law unenforced for decades, and decide that his due process and equal protection rights had been violated. There is actually a legal doctrine readily available for their use, and discussed in Griswold v. Connecticut, thirty years ago: “desuetude”–a law unenforced for long enough ceases to be valid grounds for prosecution. We would, of course, denounce the Supremes as a bunch of permissive libertines, but secretly we would be relieved. We could aspire without guilt, while unimpeded in our customary sins and crimes. It would in fact be another way to legislate morality–a stroke of the judicial pen would make us all moral.