June Carbone points out sometimes people want laws to express a sentiment. This isn’t just about Congress passing National Smoked Meats Week or San Francisco establishing itself as a nuclear-free zone, it also includes things such as laws against gay marriage, where, as Carbone writes, “we ‘care too much,’ when in fact we can do so little.”
I don’t have anything to add here, and I expect many of you are familiar with this idea, but it’s new to me. I’d always been puzzled by people who want to use the law to express a sentiment, but perhaps it makes sense to be open-minded and to consider this as one of the purposes of the legislative process.
The problem with using laws as a medium of expression is that the minority of people to whom they actually end up applying (e.g., gays denied the opportunity to marry, or to take an example from across the Atlantic and the political spectrum, foxhunters denied the opportunity to hunt) experience considerable inconvenience. Meanwhile, the gain to the pro-law majority is at best merely a temporary sense of moral triumph.
Overall, the tendency for laws to become media of expression is probably a major weakness of contemporary democracy.
That’s the argument that I haven’t found any way to counter when it comes to drug laws. It drives me nuts!
I can often get someone to admit that drug laws don’t prevent people from getting drugs, do cost a lot of tax money, do promote other (real) crimes like theft and violence, and so on. Basically it’s actually fairly easy to make the utilitarian case that the desired consequences are not happening and the consequences are bad.
But then I hear ‘but if we legalize it, that says drugs are ok’. And the discussion ends, because I’m certainly not going to argue that drugs are good for people. The ‘everything not forbidden is required’ attitude just baffles me. It seems more like an axiom than a reasoned conclusion,
Does anyone have an approach to this that works?
Remember California prop 187 in the 1990s (kids of illegal immigrants can’t go to school, etc; insanity; passed 80-20 or something)? It was known at passage that it would be struck down by the supreme court (as it was) but it passed by a huge margin. That sounds like sentiment to me.
The educative aspect of law is subtle but powerful. Social institutions (like laws) affect how we think about ourselves and those around us.
I think this is particularly evident in the marriage debate, particularly in states like California where civil unions offer essentially the same set of rights. Activists fought for a change in the definition of marriage to effect an “educative” change and not for additional rights.