The Limits Of The Law

     Legislatures will legislate about anything. it’s why there are so many nonsense laws on the books. Every so often you’ll find a list of some of the sillier ones on the Web. Here’s one such.

     (I had no idea it was illegal to slurp soup in New York! I’d better augment the Fortress’s soundproofing right away.)

     It’s characteristic of such laws that no attempt is made to enforce them. (Why they were never repealed is a separate subject.) In some cases, the authorities know the law is silly and would prefer not to look ridiculous...well, all right, more ridiculous. In others, enforcement would be impossible for various reasons. Often what makes enforcement impossible is the Fourth Amendment to the Constitution of the United States:

     The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

     Note the wording: shall not be violated. This style of construction indicates that the prohibition applies to every level of government. Compare it to the construction of the First Amendment:

     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

     This amendment prohibits Congress from interfering with religion, expression, and peaceable assembly, no other level. That was quite deliberate, as several of the states had established churches and censorship laws at the time of the ratification of the Bill of Rights. Those states would not have agreed to the Bill of Rights had it invalidated their existing laws on those subjects.

     I made note of the privacy-preserving power of the Fourth Amendment in The Wise and the Mad:

     “I’ve been told that a wise man once said that ‘love laughs at hardware,’” Holly said. “I know the sort of love Heidi and Roland chose to enjoy isn’t to everyone’s taste. It’s not that long since it was illegal, both here and in the U.K. Oscar Wilde went to prison for it, did he not?”
     “He did,” Walsingham said.
     “Is sodomy still against the law across the water?”
     “That law was overturned quite some time ago,” he said. “There have been attempts to have it reinstated, but all have failed.”
     “It’s the same here, and just as well,” Holly said. “There can be no pretense of autonomy or personal privacy in a land where the private bodily conduct of consenting individuals is a fit subject for the attention of the police.”
     Walsingham’s face worked. “That is the usual argument. Yet there are many who regard the maintenance of society’s moral standards to be of greater importance.”
     “I know. It’s unclear to some how utterly impossible it is to have both individual freedom and legally enforced sexual standards at once. The Constitution was the touchstone for reform here, particularly the Fourth Amendment. But America has groups demanding the return of the old laws, too.”

     Those “groups demanding the return of the old laws” will fail for the reason given immediately above. On net balance, that’s a good thing...but in some cases, not everyone will agree.

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     There’s a rising tide of pro-life / anti-abortion sentiment, which is all to the good. The carnage of abortion has reaped at least fifty million defenseless lives in this country alone, and has helped to corrupt relations between the sexes simultaneously. But no matter how strong that tide becomes, there will be abortions of a certain kind that will escape scrutiny, and therefore any attempt to ban or restrict them by law. The Fourth Amendment is the reason.

     If Miss Smith is the only person aware that she’s pregnant – a common condition in the first couple of months of a pregnancy – she and compliant Doctor Jones can arrange for a dilation and curettage (D&C) abortion with no one else aware that it’s taken place. Such abortions took place long before Roe v. Wade, without legal consequences. There’s no way to prevent them through the law.

     Think about what it would take to ensure that Miss Smith’s condition could not be concealed. Even the most invasive scheme for bodily monitoring would be uncertain at best – but more to the point, it would be a Fourth Amendment violation. Nor could the abortion be detected through any monitoring of Doctor Jones, as the D&C procedure is also a treatment for certain menstrual disorders. If both were to remain discreet, they would be safe from any attempt to prosecute them, regardless of how the law is drawn.

     President George W. Bush, in his early remarks about the importance of building a “culture of life,” was undoubtedly aware of this. While no law would prevent Miss Smith’s abortion, her own conscience could do so, if it were equipped with knowledge of the sanctity of human life. A culture of life would be one in which Miss Smith had absorbed that knowledge and incorporated it into her moral foundation.

     (This is in part what Catholics mean by the importance of a properly formed conscience. We’re all amoral savages from birth to about age seven. We have to be taught not to kill and eat our playmates or kidnap their little sisters for “a bit of fun.” In most households those lessons normally come right after the one about not putting your elbows on the table.)

     So even in the most severe imaginable legal regime, there would be some abortions that the law could not touch. Though it might horrify my Gentle Readers, we should be grateful for the Constitutional constraints that make it so.

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     The law has limits. Congress cannot outlaw bad weather, the demands of the “global warming / climate change” flacksters notwithstanding. Neither can it police the entirely private conduct of individuals without transgressing the Fourth Amendment. Finally, the common-law tradition of the presumption of innocence protects individuals from prosecution for unspecified crimes and accusations in the absence of a demonstrable crime.

     Some people dislike those constraints. Others argue that the law has more than one function – that it can also be used to “send a message.” The technical term for such persons is “fools.” A law that cannot be enforced, whatever the reason, weakens the public’s respect for the law and the lawmaking authority. We’re already seeing this play out with unenforceable anti-firearms laws in several states, including New York. We’ve seen it nationwide in the cases of alcohol prohibition and the War on Drugs. In the worst cases, an unenforceable law can foment a rebellion.

     Fortunately, the Constitution is very hard to amend. The older Constitutional provisions are hardest of all to change, thank God. The Fourth and Fifth Amendments are among the oldest. If you’ve wondered why Kelo v. New London raised such an uproar, or why the National Popular Vote Compact has so many tempers flaring, now you know.

     It is empirically well established that a law that more than 2% of the public is willing to violate is unenforceable de facto. Just now, at least a third of the public would willingly violate any anti-abortion statute. We who cherish innocent human life might chafe at that, but it’s the way things are.

     So the pro-life advocate’s first duty is to build a culture of life. With such a culture in place, laws against detectable abortions could have some practical effect. But even were we successful beyond all hope, there would still be some abortions. They would go unpunished for the reasons set out here. Legislated law and human law enforcement are not all-powerful. Despite this unfortunate aspect, that’s something for which we should be grateful.