Bullsh*t Laws
One of the hallmark principles behind the Rule of Law is that questions of legal right and liability should be resolved by the application of law and not the application of discretion. A.V. Dicey, the progenitor of the term “rule of law,” believed that the application of discretion opened the door to arbitrariness, which is the Rule of Law’s antithesis. People need to understand what is legal and what is not. Most people do not go about their lives intentionally violating the law if they can avoid. Thats the reason why bullshit laws are so devious. Take for example Wisconsin’s law prohibiting disorderly conduct.
“Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.”
Wisconsin Statutes 947.01 — Disorderly conduct
Indecent, boisterous, loud, disorderly.
What does any of that mean? Merriam Webster defines “boisterous” as “marked by or expressive of exuberance and high spirits.” So, at least on its face, the Wisconsin Statue prohibits expressing exuberance and high spirits in a private place. Obviously the chances of the Wisconsin State Troopers kicking down your front door to arrest you for celebrating a promotion are pretty slim but thats not as reassuring as knowing that they aren’t allowed to do it at all.
There are a number of bullshit laws throughout the country. To be clear, when I use the term “bullshit laws” I am referring to those laws that open themselves up to the discretion of law enforcement or other government officials. Since the Rule of Law depends on citizens knowing what they may and may not legally do, the injection of some faceless individual’s judgement doesn’t make that easy.
To combat this, the Supreme Court has instituted the “void for vagueness” doctrine. In 1926, Justice George Sutherland declared that “the terms of a penal statute…must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” 269 U.S. 385, 391 (1926).
This doctrine has successfully kept bullshit laws in check. The Courts have struck down laws prohibiting “vagrancy,” loafing, strolling and wandering place to place, and enhanced penalties for “violent crimes” without a clear definition of what crimes were included.
Even more recently, the Supreme Court struck down provisions of the Immigration and Nationality Act for being unconstitutionally vague. The law provided for more expeditious deportation processing for immigrants charged with “aggravated felonies” including crimes “which by their nature, involve a substantial risk of physical force.” In a lengthy concurring opinion, Justice Gorsuch railed against vague laws stating that “the Constitution looks unkindly on any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it. A government of laws and not of men can never tolerate that arbitrary power.” Justice Gorsuch also invoked the Declaration of Independence which cited King George’s establishment of “Arbitrary government” among the several reasons justifying the American Revolution.
Yet, despite the Supreme Court’s hostility towards vague laws, and the their nature being antithetical to the Rule of Law, there are many that are still regularly enforced.
Laws prohibiting loitering, obstructing pedestrian traffic, breaching or disturbing the peace, disorderly conduct, trespassing on public land, or the military’s prohibition on conduct of a nature to bring discredit on the armed forces or prejudicial to good order and discipline, still invite arbitrary decisions by officials. These laws need to be abolished or replaced with statues that more clearly delineate what is acceptable behavior, and what is a crime. LiK.
