More on "The Law"

A few readers, including some of my favorite blog pals, disagreed with my endorsement of non-compliance with the Seattle Monorail car tax (see my entries and reader comments here and here). "The law is the law, you have to obey it" some wrote (I paraphrase) and/or "the election was won fair and square. If you don't like the outcome, you can work to change it, in the meantime, comply with it".

Let's step back for a second and ask ourselves what the outcome of an election means in practice and whether or not the natural state of affairs is for people to comply with laws simply because they are laws.

The fundamental political principle of our society is that our government derives its "just powers", as the Declaration of Independence puts it, "from the consent of the governed". Elections, legislative actions and court rulings are useful tools to establish the "consent of the governed", but they are only part of the story. Such actions create formal laws, fill offices and establish procedures, but the de facto rules by which our society is run are established by, well, the consent of the governed -- i.e. (a) compliance with each specifc law and (b) the political will to enforce each law. This consent is not just granted at the ballot box and maintained until the next election, but is renewed every day by individuals complying with laws and by governmental agencies enacting sanctions against those who violate the laws.

Those who hector that we must follow the law because it is the law are being naive and/or hypocritical, but certainly self-defeating. Do you always obey the speed limit, because it's the law? Did you never drink beer as a 20-year-old college sophomore, because it was against the law? Do you always file withholding taxes for people who perform domestic services in your home, because it's the law? If you're gay, did you eschew sodomy when it was illegal, because it was against the law? Perhaps. But most folks pick and choose all the time which laws to follow and when to follow them, and when to disregard them.

Yes, if we disagree with a law we should work within the formal political sphere to repeal it. But as long as the political will to enforce the law exceeds the will of individuals to violate the law, the law is unlikely to change. In other words, the widespread breaking of laws is very often a necessary precursor to a change in the law. Otherwise, the momentum to change the law formally is unlikely to exist. Some wrote that, why yes, in the case of, say, abolishing racial segregation, breaking the law is justified. I agree. But take a look at many other examples.

Anti-sodomy laws. The 55-mph speed limit. Prohibition on alcohol. These laws were not overturned by massive compliance supported by letters to one's elected representatives. They were overturned by widespread refusal to obey the laws. Then there is immigration. Many people say they support tough laws and measures against illegal immigrants, but we still have millions of aliens living and working in this country illegally, and by extension millions of Americans who hire them, rent housing to them and otherwise interact with them without reporting them to the authorities. Likewise, governmental bodies at all levels either tacitly or explicitly decline to enforce immigration laws. Immigration laws exist on the books, but with widespread refusal to comply and enforce, these laws have withered away in practice and will ultimately be rewritten.

At the same time, electoral outcomes alone do not always translate into a de facto change in the effective rules of governance. In 1994 California voters approved Prop. 187 by a large margin, intending to deny social services to illegal immigrants. Those with the greatest stake in maintaining such services filed lawsuits and the law was never implemented. In 2002 San Francisco voters overwhelming approved the "Care not Cash" initiative, which would change the way services are delivered to the homeless. Lawsuits were filed and the law was overturned. Similarly, other voter initiatives in California and Washington ending affirmative action and ending bilingual education were largely but incompletely implemented, as some public universities and school districts chose to challenge the will of the voters. In other words, the will of the voters was either completely or partly set aside, because the political will to challenge the outcome exceeded the political will to keep fighting to maintain it.

Interest groups with a large amounts at stake over a law they don't like have an incentive to dedicate the resources to challenge the law. Large numbers of individuals each of whom have only a small stake in the law do not have the same economic cost-benefit analysis and cannot realistically be expected to devote the required amount of time, money and energy to fight for (against) the laws they voted to enact (oppose). Resistance by lawsuit is the optimal strategy for some. Resistance by non-compliance is the optimal strategy for others.

The Monorail car tax does not rise to the level of civil rights issues such as racial segregation and anti-sodomy laws. On the other hand, I see an important principle at stake here. Imposing the financial burden for the Monorail on automobile owners (especially those who cannot use the Monorail to replace automobile trips) is both dumb and unfair. Maintaining this tax will only encourage the imposition of more dumb and unfair taxes in the future. We already have plenty of other dumb and unfair taxes, but this one is both particularly egregious and relatively easy to avoid. Those who believe in supporting the Monorail by paying the tax should by all means do so. Those who oppose the Monorail tax but pay it anyway are not upholding civic virtues. They are only wasting their money and postponing, rather than hastening, the demise of an ill-conceived public project.

Worse than that, those who choose to abide by laws they know to be bad are dampening the flame that preserves our free society. In the words of Thomas Jefferson:

what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance?

Posted by Stefan Sharkansky at December 01, 2003 12:41 PM