One of the several idiosyncratic gripes I have about the world is what I have called the there-ought-to-be-a-law phenomenon. This is the name I give to our tendency to see legislation of new laws as the best way to solve emergent, context-specific problems. We frequently hear cries for new laws whenever anything turns up with other than desired outcomes or consequences. My argument is that laws are very serious business. They are the nuclear option in maintaining social order, and they should not be taken as lightly as they are today. It seems laws frequently not only outlive their usefulness, but they often morph in unforeseen ways into things that were never intended. Worse yet, they maintain their purposes through time even when the reasons for their passage have lost all credibility.
Our willingness to legislate at the drop of a hat not only leads to an environment which is so legally complex that it is hard to negotiate the normal activities of life without professional legal assistance, but it also suggests we see the solution to all social problems as being coercion and force. We think if only some person were required to do something, or prohibited therefrom, then the bad outcome we associate with them would have never happened. This is often based in the post hoc fallacy where we mistake correlation for cause and effect. We outlaw things that occur in proximity to a bad event under the illusion that those things caused the event, and we are often mistaken. Broken and outdated laws languish on the books, but that is not half the problem. They are often taken up for second hand use against the same mistaken causes which were outlawed in the hopes of solving some unrelated problem.
My pet peeve gets little attention and less consensus. First, it is too abstract for a concrete, stimulus-bound world. Born before th iPhone, I tend to analyze too deeply. Second, it is peculiar and idiosyncratic, like me, which the psychoanalysts tell me is due to the loss of my father at an early age. It results from my tendency to look beyond the immediate problem to discover the causes to which the problem is attributable - not exactly a 21st century activity. It is that tendency which betrays me, as it is the very thing I criticize in motivation for hasty legislation. Yesterday was a special day for my pet peeve, though. In Drugs, Demons, and Fiends: "I Can't Breathe," Suzanna Reiss (posted on the blog of the Alcohol and Drugs History Society) explains the amazing continuity in Federal anti-drug efforts, and the startling similarities between the rhetoric used in promotion of the Harrison Narcotics Act of 1914 and current events attributable to the War on Drugs. Yesterday, the Harrison Narcotics Act of 1914 turned one hundred years old. By any account, this legislative work of art is responsible for more pain and human suffering than almost any war or regime. As cited in most historical accounts of the War on Drugs, the Harrison Narcotics Act of 1914 basically started it all. It was the opening salvo in a steadily increasing flow of federal anti-drug legislation. It was also demonstrably steeped in misinformation and disinformation - an idea which was largely motivated by popular attitudes of its day which are not only discredited today, but illegal.
This first shot in the War on Drugs arose in an environment so very different from today that most people gasp when it is described. It began at a time when essentially any medicine or drug which a person desired could be purchased - free of regulation - from a local store. When those of us who believe the best social policy would be to return to that state of affairs, there is almost universal shock and indignance. But why did these laws actually arise? Was "addiction" increasingly taking over the society and threatening its fabric? Was national security in danger? Were astronomical proportions of the society dropping dead in the streets from overdose? Were any of the supposed horrors of a free market in medicines actually happening? Not exactly. The reason we needed the laws, we were told, was because of "the Negro cocaine fiend," who allegedly was so energized by drugs that a southern sheriff's shot to the heart fails to stop him. Sound familiar?
Few people disagree the Harrison Narcotics Act was based in racism. Race is the thread which runs through the center of early anti-drug lawmaking. Images of a drug-crazed African American males was the most palpable fear of the day, and that fear was conscripted in the service of promoting laws for which there may have been no real purpose or need. The Harrison Narcotics Act founded the War on Drugs. The War on Drugs is undoubtedly the most misguided public policy of the twentieth century. It still fuels a multi-billion dollar industry of waste and injustice. It is the glue which holds together the 21st century forms of institutionalized racism, and results in many of our most vulnerable citizens being denied the medicines they want and need. And since it is the law, we don't see much questioning of it. Passing laws is often like buying a used car. The salesperson promotes the car as "like new," but the contract says we are buying it "as is." We thus do not get to return to the salesperson's claims when the the car blows up. Nor do we get to go back and ask Congress about "the Negro cocaine fiend." We bought the car - as is. The law is the law.
Amazingly, through all the changes and advances in understanding of our world, the fallout from this little law is actually still going - like the rabbit. It is also still deeply intertwined with racist policy, since the War on Drugs is clearly responsible for the mass incarceration of unthinkable proportions of African American men. It has therefore remained true to the purposes used to promote it in the early part of the twentieth century - oppression of non-White groups. There are few examples of bad ideas going unchallenged for so long and with such vigor. Laws allow such ideas to survive and prosper. The Harrison Narcotics Act of 1914 is still working to oppress African American males, and its effectiveness is amazing, given the wholly discredited nature of its original intent and its current outcomes. It was an ill-conceived idea advocated for less than honorable reasons, and it has survived and prospered through the complete dismantling of those reasons - still achieving its intended goal.
Maybe my idea that we should think a little more before passing any new laws is not so silly. They are like land mines. The worst thing they do is to lend credibility to motives which are often demonstrably immoral and unethical. The fact that it is the law seems to preclude debate on the moral justifications used to promote its passage. We concentrate today only on the fact that drugs are illegal - not on the completely insane justifications given when we agreed to make them illegal. This allows bad policy to survive and prosper where other policies would have long been tossed onto the scrap pile. There ought to be a law...