Twenty years ago on The Simpsons, Helen Lovejoy gave us one of the most ubiquitous rallying cries in politics:
Homer: Mr. Mayor, I hate to break it to you, but this town is infested by bears.
Lovejoy: Think of the children!
[The mayor sets up a Bear Patrol, which costs tax money. One week later, the citizens have a new complaint.]
Homer: Down with taxes! Down with taxes!
Lovejoy: Won’t somebody please think of the children?
The attempt to gain support for weak arguments by invoking children has become known as “Lovejoy’s Law.” And it’s a favorite of liberal activists.
Consider for example, a recent ordinance by the Santa Barbara City Council to effectively ban plastic straws, stirrers, and cutlery in the city. Before voting unanimously for the ban, the council listened to testimony from children about how straws were destroying our oceans (note: straw are not destroying our oceans).
“[We had] nine year old kids all asking to help pass these policies to protect our oceans and our waterways,” said one environmental activist after the council meeting. “The children are going to have to bear the external costs of this pollution we’re producing,” said another supporter of the ordinance.
We should indeed be mindful that children will bear the external costs of pollution. But we should also keep in mind that our children will bear the external costs of laws that undermine faith in justice and the rule of law.
One of the core principles of the Acton Institute is the importance of the rule of law: “The government’s primary responsibility is to promote the common good, that is, to maintain the rule of law, and to preserve basic duties and rights.”
The rule of law and promotion of the common good is undermined when draconian punishments are imposed for regulatory “crimes” likes this straw ban. For example, restaurant employees in Santa Barbara can be punished with up to six months of jail time or a $1,000 fine after a second offense of giving plastic straws to their customers. As Katherine Timpf points out, “each individual straw counts as a separate infraction, meaning that if someone got busted handing out straws to a table of four people, he or she could end up facing years behind bars.”
There are two primary ways that the ordinance can undermine the rule law—when it is enforced and when it is not enforced.
Most theories of punishment are based on the idea that the punishments for crimes should either equal the harm done (retribution theory) or be just great enough to deter potential criminals (deterrence theory). When the law is too severe, society loses faith in the ability of the government to be fair and render justice. “[I]f a community does not believe its criminal justice system is fair, then it is far less likely to cooperate with that system,” says Sen. Mike Lee of Utah. “And when a community does not cooperate with law enforcement, crime goes up.”
Because the legal penalty for handing our straws is unduly harsh, it is likely the law will not be enforced with any regularity. It’s unlikely that anyone will find themselves spending months in jail because they handed a piece of plastic to a thirsty customer. However, this lack of enforcement also undermines the rule of law. The refusal to enforce the law as written sends a signal to the public that the the law was meant to be taken “seriously, but not literally.” Rather than being an ordinance that was necessary to protect our environment, it will be seen for what it really is: a way to frighten people into accepting an weak, overblown argument about pollution.
Whether such laws are enforced or not, Santa Barbara and other local governments that impose such penalties are communicating to its citizenry that the laws imposed on them are absurd and unjust. Is this really the message we want to be sending our kids? Do we want them believing many laws are arbitrary and unenforceable? When it comes to defending the rule of law, won’t somebody please think of the children?
