Arbitrariness In The Law

There is a common perception that arbitrariness in the law is a bad thing. It is not. This essay seeks to explain why, and to clarify when arbitrariness is a problem.

It is nearly impossible to devise laws that are not in some respect arbitrary. Sometimes the general thrust of the law is not arbitrary but the details are. Start with an uncontroversial law: the prohibition on burglary. Everybody agrees that burglary should be illegal and everybody agrees on why burglary should be illegal. Not everybody agrees, however, on exactly what the law should say. English common law defined burglary as breaking and entering into the dwelling house of another, during the nighttime, for the purpose of committing theft or another crime. It was a capital offense. The definition has changed over time. Today, nearly all jurisdictions have done away with the requirement that it happen at night. Most jurisdictions have also created lesser, related offenses for breaking into other structures and even automobiles for the same reason. Some jurisdictions such as Florida have done away with the breaking and entering requirement: any entry will suffice under Florida law. Perhaps the most obviously arbitrary part is the penalty. Under English common the penalty was death. Today it is a lengthy prison sentence, but how long? That part is arbitrary. There is no natural correct answer to this.

Whenever the law has a number or a cutoff or anything of the sort it is arbitrary. Why is the drinking age in the United States 21? It is arbitrary. Maybe there was sound scientific research behind it. Maybe somebody thought of it while playing blackjack. I think we should look at the arguments and not be too fixated on the origin of the law. Some people propose lowering it to 18, which is also arbitrary.  Does this mean we should throw our hands up at the whole project? No. Just because the law is arbitrary does not mean that it is unjustified, or that there is no basis for why one arbitrary choice is better than another. We should actually consider the arguments. Sometimes there are good reasons for replacing one arbitrary law with another. Enough people thought it was a good idea to lower the voting age from 21 to 18 that we passed the Twenty-Sixth Amendment. It took two thirds of both houses of Congress and three quarters of the states. Just because it was arbitrary did not mean people could not reach an agreement.

Sometimes the exact details of the law are not important. In some countries, people drive on the left. In other countries, people drive on the right. Either rule serves the same purpose of minimizing head on collisions.

Culture can be a driving factor in certain situations. For instance, if a country is going to have an official language, it should be one that the residents speak, and this will vary from one country to another. There is no one best language. But culture is not everything. Some cultural practices are morally bankrupt. One example is Muslims killing apostates. Whatever the Quran says on the subject is not a legitimate justification. However, we should focus our criticisms on specific cultural practices and not just say that a culture is bad. Banning Islam is not the answer. Christianity was pretty brutal for most of its history. If Christianity can be reformed, it seems likely that Islam can be also. There are moderate Muslims. They can do things that outsiders cannot, particularly in regard to shaping debates within the world's second largest religion.

Arbitrariness in the law is bad when it amounts to discrimination. Discrimination is unfairly treating people differently. Saudi Arabia's ban on women driving is discriminatory. It also serves no legitimate purpose. Our drug law laws are not on their face discriminatory. Treating different people differently is discriminatory; treating different drugs differently is not.  This does not mean that our drugs laws are well advised, though, and there is a lot of evidence that they are enforced in a racially discriminatory manner.

Sometimes arbitrariness in the law is desirable. Consider speed limits. Speed limits are arbitrary because they involve numerical cutoffs. However, they serve a valid purpose. Driving too quickly is dangerous. Speed limits balance this against other considerations such as the desire of drivers to get where they are going sooner rather than later. Suppose a jurisdiction decides to repeal speed limits and adopt a law, which states that people should drive at a reasonable and prudent speed given driving conditions at the time. This would address the arbitrariness of speed limits, but it would be a terrible law because nobody would know what is expected of them. There would be clear-cut cases, but there would be a big gray area.

This brings us to the problem of vagueness. Nearly everybody agrees that it is bad when the law is vague. We pass laws so that people will obey them. It is a problem when nobody knows what the law is. In Papachristou v. City of Jacksonville (1972), the United States Supreme Court unanimously struck down Jacksonville, Florida's vagrancy statute as unconstitutionally vague. The Court expressed concern that people would not know what is expected of them, and that vague laws invite improper enforcement. In fact, in the case in question, there is reason to suspect that the real reason for the arrest was that the police did not like the fact that a group of individuals of different races were traveling together in the same car. Here is the full text of the law:

Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.

The Court pointed out that a lot of the items listed here are ill defined or prohibit what is generally considered lawful behavior. The Court specifically objected to the phrase "without any lawful purpose or object". It is up to the government to show that a person is acting for an illegal reason; this phrase seems to reverse the presumption of innocence. The Court also expressed concern that the open-ended nature of the law invited enforcement for an improper purpose.

While the Court focused on vagueness, it mentioned another major problem: the law effectively criminalized poverty. The law effectively made it a crime to be unemployed. One previous Supreme Court case not cited in Papachristou v. City of Jacksonville seems particularly relevant.

In Robinson v. California (1962), the Supreme Court struck down a state law making it a crime to be a drug addict. The Court ruled that the law could only address actions, not states or conditions, and compared the law to one that criminalizes leprosy. There was a dissent, which argued that being a drug addict entails illegal drug use and that the majority was splitting hairs. Not necessarily, especially if we accept the premise that addiction is a lifelong condition because a person can relapse at any time. This law would thus do an end run around the statute of limitations. Also, there is a jurisdictional problem. A person who had used illegal drugs in a different country and then moved to California could potentially have been prosecuted under this law.

Criminalizing poverty probably qualifies as discrimination, though the Court has not moved poverty out of the rational basis category, in which equal protection violations are very difficult to prove. However, this case looks a lot like US Department of Agriculture v. Moreno (1973), where the Court invalidated a law excluding "hippies" from the food stamp program. The Court there declared "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest".

Just as arbitrariness in the law is unavoidable, so is vagueness. Laws are written in natural languages, where statements are often vague or ambiguous. Furthermore, there are a lot of different cases and it is impossible to address all of them. Laws that appear to be clear enough may not be when certain specific cases arise. In Smith v. United States (1993), the Supreme Court upheld the conviction of a man for using a firearm during a drug trafficking offense. The man attempted to trade a machine gun for cocaine. He was in fact trading with an undercover police officer. The law elsewhere defined drug trafficking crime and this component was not at issue. The issue was whether what he did constituted use of a firearm. The Court held that it did, by a margin of 6-3. The majority said that he was using the gun to obtain an illegal drug and that was enough. The majority also said that the purpose of the law was to keep firearms out of the drug trade and this was a clear case of the kind of conduct the law was designed to deter. In dissent, Justice Antonin Scalia argued that we should interpret the word "use" in its ordinary meaning. He discussed whether we would say that somebody who sold a gun he inherited could honestly say he had never used a gun.

One way to look at the problem of vagueness is just how broad the gray area is. If there are only narrow and highly specific cases where the law is unclear, this is just how things work in the real world. Smith v. United States concerned a very particular issue. People generally understand what that law means, even if that particular case required an appellate opinion. Furthermore, the defendant in that case knew he was breaking the law; he just may not have known exactly which laws he violated. If the law is so open ended that nobody really knows what it is about, then it is a bad law. It is worth noting that a lot of the United States Constitution is really open ended. Consider the following examples:

"establishment of a religion": First Amendment
"free exercise [of religion]": First Amendment
"freedom of speech": First Amendment
"freedom of the press": First Amendment
"probable cause": Fourth Amendment
"due process of law": Fifth and Fourteenth Amendments
"cruel and unusual punishments": Eighth Amendment
"excessive fines": Eighth Amendment
"equal protection of the law": Fourteenth Amendment

All of these phrases have been the subject of copious litigation. One can come up with clear-cut examples of what these constitutional provisions were designed to prevent, but the gray area is large. The United Kingdom has an official church. This would be an obvious violation of the First Amendment. Beyond that interpreting the Establishment Clause gets fuzzy. Here are a few of the types of activities that have been subject to litigation:

Bible reading led by public school officials
Prayer led by public school officials
Student led prayer at public schools
The Ten Commandments in a courthouse
Christmas displays
The words "under God" in the Pledge of Allegiance, said in a public school

Some atheists think that we should not have anything that even vaguely resembles state sanctioning of religion. Michael Newdow, who brought the last case mentioned, is one example. He has also called for removing "in God we trust" from our money, but thought he had a better shot at the Pledge of Allegiance case. The Supreme Court never ruled on the merits of his case. Instead, they concluded that he did not have standing to bring suit on behalf of his daughter because her mother had primary custody and she strongly opposed the suit. Elk Grove Unified School District v. Newdow (2004). It remains to be seen if another plaintiff will bring a similar case.

Here is how the rest of the cases went. The Bible reading and school prayer cases were found unconstitutional because of the involvement of the public school officials. The prayer case was Engle v. Vitale (1962). The Bible reading case was School District v. Schempp (1963). Potter Stewart was the only dissenter in both cases. The sanctioning component is key. I am not aware of any cases on point, but I think if a high school teacher has a Bible in the classroom for reference, that would be ok. If students want to pray on their own they can do so. Students are not state agents so nothing they do could violate the Constitution anyway.

The Ten Commandments type cases depend on context. If a public forum has a display with an assortment of religious symbols it is generally ok because it is not sponsoring a specific religion. The more it looks like preferential treatment for a specific faith, the more likely it is to be a constitutional problem. However, in McCreary County v. ACLU (2005), the Supreme Court held that Kentucky could not make its Ten Commandments display constitutional by adding other religious symbols after the suit was filed. Christmas displays have generally been upheld if they were more secular in nature, including things like Christmas trees and Santa Claus. If the focus is on religious symbols like the nativity, it is more likely to be a constitutional problem. The most notable case here is Lynch v. Donnelly (1984), which held permissible a public Christmas display including both religious and secular symbols.

I will not cover all the other cases here, but the case law is just as complicated. Brief phrases like those found in the Bill of Rights cannot capture the full complexity of these issues. It is worth noting that the Constitution only limits state action, with the exception of the Thirteenth Amendment, which bans slavery. If you are not acting as a state agent, the only way you can violate the Constitution is by having slaves.

Just because the Constitution if vague does not mean that other laws can be similarly vague, especially criminal laws. For instance, a law that made it a crime to engage in speech not protected by the First Amendment might be unconstitutionally vague. I am not aware of any laws like this. However, the federal government and various states have laws that essentially just copy the Miller test for obscenity with no elaboration. There is a federal law that prohibits sending obscene materials in the mail, but provides no definition of obscenity. I think these laws might have a constitutional problem that the courts have not yet recognized. Courts are more likely to scrutinize vagueness in criminal law, and when the law concerns activity that may be constitutionally protected. Both of these apply in the obscenity case.

Arbitrariness and vagueness can be a tradeoff. Consider the speed limit case again. Speed limits are arbitrary but not vague. The "reasonable and prudent" standard is vague, but it may not be arbitrary. Clarity in the law is important, so we pick the arbitrary option over the vague one.

The real question is not whether the law is arbitrary but whether it is defensible. Is the exact detail of the law arbitrary? In that case we should looks at the law and see if it needs to be amended. Consider tax rates. Government cannot function without taxes. The exact rates are arbitrary. Maybe we should raise taxes overall to balance the budget. Maybe we should cut spending for the same purpose. Maybe we should raise taxes on rich people only. These are the kind of proposals we can legitimately debate. But the alternatives considered should make sense. Suppose somebody proposes that because the tax code is too long we should do away with exactly half of it. Why half? As a compromise between those who support the status quo and anarchists who don't think there should be any taxes. This is not a serious proposal. Come back with something more specific.

Is it arbitrary that there is even a law on the subject? Then we have a serious problem. There are still states where it is illegal to have sex in anything other than the missionary position. These laws are completely and totally arbitrary. They serve no legitimate purpose. It is not even a close call. If we have no idea why a law is on the books, we should repeal it. We should also repeal laws when the reason they are on the books is a bad one. In Loving v. Virginia (1967), the Supreme Court concluded that the reason the state prohibited interracial marriage was to promote white supremacy. Basically, people did not want the white race getting diluted. This was a completely illegitimate purpose for a law.