The Flabby Arm of the Law

Some of our colleagues are disturbed that the US government seems lackluster in its enforcement of immigration law.  If we were paying attention, this would surprise no one.  It is only a special case of a reality so long-established and widespread in this country that it isn’t even a “problem,” it’s just an essential component of our culture. Americans don’t like law enforcement roughly 50% of the time.  Or, as our daughter puts it, every American law includes one invisible clause: “except me.”

Our various ancestors came here in the first place to get away from onerous economic and legal systems in the Old Country.  Sure, the Puritans immediately set up what seemed like an equally onerous system here.  But read Perry Miller and George Demos on how it actually worked out.  The Puritans anti-sex?  Not if you count the number of public rebukes for fornication and adultery, and the number of “premature” births.  In the era before TV and central heating, the Puritans did what they had to to keep warm and entertained.  Anti-violence? Anti-theft?  Read the stats.

More important, consider what our ancestors, like our own legislators today, used the law for.  First, (Wired’s First Law) nobody legislates against what nobody does.  The existence of a law against fornication isn’t evidence of a society’s high regard for chastity.  It is precisely the opposite.  The people whose lawmakers pass such legislation know their constituents screw around (as, a fortiori, do the lawmakers themselves.)  They just want to get on the record, when they have the time to get out of that unsanctified bed, that they know it’s wrong.

Same goes for drunk driving, indoor smoking, drug use, and exceeding the speed limit.  We use these statutes mainly to proclaim that We Are Nice People.  Not that we are people who don’t drive drunk, smoke indoors, use drugs, and speed.

That’s purpose #1 of American laws. Purpose #2 is the control of “undesirables.”  We are also a thrifty lot, who don’t like to let useful stuff go to waste.  Now that we have all those laws lying around on the books, why not use them to keep Those Other People in line?  Prohibition, clearly, was a Protestant movement to keep those wine-bibbing, beer-guzzling Italian and German Catholics from having too much fun.  The War on Drugs began as a war on African-Americans and graduated to a war on hippies.  The only prosecution for fornication in an egregiously well-known Southern state in the 1960s involved two African-American honor students who were active in the Civil Rights movement.  You get the picture.  Once the statute books are full of laws everybody violates, everybody is vulnerable to prosecution.  We can pick and choose among our potential defendants.  Should anyone be surprised if those who do the choosing concentrate on Those Other People?

Every now and then, some court finds this bias too blatant to be acceptable.  That was what happened in San Francisco, roughly a century ago, in Yick Wo vs. Hopkins, the grandmother of all discriminatory prosecution cases, in which Mayor Mark Hopkins decided to close down all wood-frame buildings used as laundries, which—surprise!—included almost all Chinese laundries and almost no non-Chinese laundries.  Even the US Supreme Court of that era, hardly a bastion of equal protection (the same guys who brought us “separate but equal” Plessy vs. Ferguson and “three generations of imbeciles is enough” Buck vs. Bell,) thought that was too much.*  Every now and then the courts still follow that precedent, though mostly they just nibble away at it like ducks at a pizza, and hope for it to disappear entirely some day.

Legislators get lots of good publicity out of designating a Serious Problem and then passing a law against it.  Occasionally, they run into embarrassed staffers who, having been assigned to research The Problem and draft the law, discover there already is such a law.  Legislators do not get good publicity from merely proposing to enforce a law that has been on the books for a century.  That’s just “the nanny state.”  The laws that actually get enforced are a small proportion of those on the books, and the proportion of violations of those laws that actually generate prosecutions is even smaller.

Every now and then, one of Us gets busted for breaking a law clearly aimed at Them, and complains about it.  “The only reason I got stopped for speeding was that it was easier for the cops to catch me because I was only going five miles over the limit when everybody else was going fifteen miles over the limit. It isn’t fair.”  Most of the time, as noted earlier, the courts disregard this argument, unless it seems to have really blatant racial, ethnic, or religious implications.  Being the slowest-moving lawbreaker on the road is a bad idea.  Most people know better. OTOH, prosecutions for Driving While Black are actually attracting lots of negative publicity these days, and many jurisdictions are cracking down on them. (For more information, check this out

But most of the time, even local judges are not too bashful to say, of a defendant who is about to catch an unexpected break from the criminal justice system, that s/he “is not a member of the criminal class.”  (I’ve heard it myself, and probably many of you gentle readers have too.)  At heart, we are all Aristotelians.  We believe character determines fate, what you are determines what should happen to you, and what you have done in the past is our best guide to what you are.  So if you are a high school dropout with no visible means of support and a record of minor misdemeanors, we have no trouble concluding you must be more guilty of buying or selling cocaine than the solid, middle-class citizen next to you.  This is common sense, and tends to be accurate more often than not.  As long as we don’t really feel obliged to determine whether the high school dropout etc. actually made the drug sale/purchase in question, we figure he will get what’s coming to him more often than not, and that’s close enough for government work.

In conclusion, the reason “the Sixties” are still a hissing and a byword among hard-line conservatives is not that people actually became less law-abiding, but that they became less willing to accept the American deal—act like a solid citizen most of the time, don’t flaunt your lawbreaking, and we will treat you like a solid citizen unless you are Black or poor or Indian or Mexican or gay.  People who were not any of those things suddenly began breaking laws in public, and worse still, objecting to laws against sex, drugs, and harmless recreation, proclaiming that We Are Not Necessarily Nice People, and shouldn’t have to be.  That way lies Armageddon, Fire and brimstone coming down from the skies! Rivers and seas boiling!Forty years of darkness! Earthquakes, volcanoes… The dead rising from the grave! Human sacrifice, dogs and cats living together… mass hysteria!

So the immigration laws are a relatively minor casualty of something a lot bigger and a lot harder to clean up.  God’s Own Party has, wisely for their purposes, chosen to go about enforcing those laws by turning all illegal immigrants, and most legal immigrants, into Those Other People, unlettered Hispanics sneaking in here to take jobs and welfare benefits from good Amurricans.  It seems to be working.  Maybe it shouldn’t be.

Red Emma

One Response to “The Flabby Arm of the Law”

  1. Hate Crimes, Special Victims, and the Rest of Us « Wiredsisters’ Weblog Says:

    […] Grey Possibly related posts: (automatically generated)The Flabby Arm of the Law“What You Mean ‘We,’ Paleface?”Number Theories6-1-2 ASSAULT AND […]

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