A Lawmaker’s Litmus Test

Ours is a country of laws. Every problem, every grieving mother, every offended 20-something year old results in some statute or another. Every public shooting, every racial incident, and every sex offense seems to spawn an extra measure of legal ink. And why is this?

Because it feels good.

It feels good for the people who think they’re making a difference in the world. Aside from online stands of solidarity, some Americans genuinely want to take action. Creating a rule, no matter how ineffective, satisfies that altruistic urge.

It feels good for the victims. No one will ever be hurt the way they were hurt again. Creating a law, whether that law would have done anything to prevent the initial crime or not, gives them the peace of mind.

It feels good for lawmakers because it’s their job. And making laws, whether there is an actual problem to begin with or not, is what propels them from city to county, county to state, and finally from state to federal, implementing more and more laws as they go.

Laws must not be created based on emotion. This is a tough sell to the woman who lost her son in a fatal drunk driving accident. It’s a tough sell to a man who is sick of his neighborhood falling apart because of drugs. It’s a tough sell to anyone with a strong moral opinion on an issue. But if we know that emotion-based decisions in our own lives are very rarely thought through, how much more far-reaching and damaging is our emotion-based legislating?

I’d posit that there are three simple questions any lawmaker or voter should ask when getting into the business of making laws. They place a check on the emotional tendency to “solve with law” and are a mental litmus test for when the raging masses call for legislative change:

1. What is the problem?

People are shooting each other with machine guns and automatic weapons every day. That isn’t true, but if the media and legislators were your only income of knowledge capital, you very well may believe so. The truth is, automatic weapons and machine-guns are in no way shape or form available to the general public. What is being called an automatic weapon is actually the semi-automatic  “Armalite Rifle, design 15” or AR-15 for short (not assault rifle). This mislabeling and bait and switch of terms has, of course, led to this rifle being heavily targeted by lawmakers as a highly dangerous weapon.

But in truth, handguns are responsible for twice as many gun murders as “military-style” rifles (or whatever we’re calling them) if we’re being modest and 3-4 times as many if we’re not. So at a very primitive level, if we are to say that gun violence, in and of itself, is the problem, why are we specifically targeting the wrong weapons?

The question of “the problem” is important because it requires us to have an unbiased understanding of what is actually going on. Too often the Problem is boiled down into emotionally-charged sound bites, chewed up and mama-birded into the mouths and minds of the American public. Confirmation and availability biases ensure that the only facts that really matter are the ones we hear on our favorite flavor of news channel. We look at problems through too small a lens, allowing unpreventable outliers to emotionally skew our perception. We look at problems in a vacuum, unable to examine the deeper and heavier issues that, although seemingly unrelated at first glance, are the root cause for the injustices we wish to eradicate. It all clouds our judgment, making any actions we take a shot in the dark.

When answering this first basic question, we have to be able to look at the problem from multiple angles, multiple lenses, and as often as possible, free of emotional shading. Nothing we see on the news is complete truth. Nothing we are told is complete truth. Nothing we see with our own eyes is complete truth. It takes multiple angles through multiple mediums for us to eliminate the fog of bias and arrive at a more complete picture. What are the statistics? And not just one study under a certain methodology, but multiple studies from different vantage points. What are the causes? What are the causes that can be affected by law? What are the opposing opinions and theories? Is this a real problem or is it possible that it’s an outlier that also happens to be the trending hashtag on social media right now?

It requires mental legwork, but understanding your problem, as objectively as possible, is the only right starting point from which to form a solution.

2. Does the law address that problem?

In 1986, Congress passed the Anti-Drug Abuse Act as part of the War on Drugs. It required a mandatory minimum of 5 years hard time for possession of 5 grams of crack cocaine, while requiring the same sentence for 500 grams of powder cocaine. This disproportionately targeted the street level crime over the kingpins who were at the root of the problem. Not to mention that since most crack users were black, and most cocaine users were white, a disproportionate number of blacks were incarcerated, adding a racially biased element into the legal equation.

Once you have an objective understanding of what the problem is, the next challenge is to create a just law that positively addresses the problem. In the case of the Anti-Drug Abuse Act, the issue of drug abuse was tackled in a vacuum, failing to address the kingpins who were the major contributors to the epidemic.

Making laws feels good for those that have in emotional investment in the issue at hand. Taking action, with no regard for if that action will be effective or not, is easier than sitting down and finding an objective solution to the problem. And with enough lawmakers and voters being so careless with law, it is no surprise we pass legislation lightyears faster than we repeal it. It wasn’t until 2010 that the disparity inherent to the Anti-Drug Abuse Act was partially corrected by the Fair Sentencing Act. 24 years of unjust and ineffective law.

When asking the question of how valuable a law or statute or rule might be, the same clarity of thought is required. Is this a problem that a law can actually solve without creating more crime? Does the law directly fight the cause of the problem without infringing on the rights of others?  These are the kinds of ancillary questions that force us to step outside of our simplistic idea that the answer to crime and injustice is more law. It is the safety backstop that will prevent our emotional and moral biases from creeping into the framework of our justice system.

3. Is the law enforceable and just?

Finally, you must look at the nature of the law or rule you are proposing. Is it tightly tailored to the problem, or does it come in conflict with the daily lives of law-abiding citizens? Freedom and security are at constant odds in our nation. As we create more laws, we reduce freedom in favor of what we think is security. A priority must be established to ensure the freedom of citizens while still maintaining security. It is a difficult sea to navigate, but it is imperative to the preservation of a free nation.

Is the law enforceable? Once you create a law, you must be prepared enforce it through fines, penalties, and incarceration. Peace officers will have to make arrests. Courts will have to hear appeals. The simple view that a lawmaker can write a law on the front end and not pay the cost on the back end has awarded us the highest incarceration rate in the world. In California, for example, the state passed AB 109 which moved specific offenders from state prisons and state parole agents to county jails and probation officers due to the overcrowding in the prisons. The rampant and unchecked creation of laws tacked with mandatory minimums for offenses created a problem on the back end that could have been avoided with a small measure of critical thinking.


It is not enough to apply these principles going forward. We have tied ourselves down with laws that are either irrelevant, unjust, unenforceable, or just too wide reaching. Bingo games cannot last more than 5 hours in North Carolina. You can get 25 years for cutting down a cactus in Arizona. Crack cocaine still carries a heavier sentence than powder cocaine. We must apply these principles retroactively. Its not enough to just plug the hole in the boat. At some point we have to collectively get our buckets out and remove the water.













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