"That should be illegal."
Typically when someone says something like this, it means one thing: they’ve heard or seen something which has no direct impact upon them, but because they don’t like it for some reason, they feel it should be outlawed.
Recently introduced in the Massachusetts legislature is a proposal that would make circumcising a male child a criminal offense punishable by fine or up to 14 years in jail. Could you imagine jailing a rabbi for doing something that is part of their religious tenets?
Now there is a growing movement against male circumcision, with many calling it unnecessary and even detrimental — though there’s nothing detrimental about the fact that circumcision reduces a male’s susceptibility to STDs (still a good idea to use condoms) along with reducing the chances of penile issues such as fungal and skin infections because of that foreskin.1
So what’s the point of the legislation, besides the obvious violation of the rights of Jews to practice their religious tenets? There isn’t one. There is no point to or any benefit derived from outlawing circumcision.
But a lack of point or benefit hasn’t stopped legislatures from pointlessly outlawing other things over the years. Arguably the most famous example is Prohibition. It started in 1920 as part of a growing movement to do away with alcoholic beverages in society, and was simply an implementation of one idea: some people get drunk, fewer still cause problems when drunk, so no one should be able to drink alcohol at all.
For thirteen years this experiment lasted in the United States, spawned after the ratification of Eighteenth Amendment. (Trivia question: Is the Eighteenth Amendment still a part of the Constitution? Answer later.)
So what was the result?
Increased crime and increased alcohol consumption because it was illegal. Plus enforcing prohibition drained government coffers because there was now no longer any tax revenue coming in from excise taxes on alcohol. On the plus side, it was great for the economy, especially the California grape market, and not to mention the underground black markets that were distributing bootleg booze.
Prohibition was finally brought to its end in 1933 following the ratification of the Twenty-first Amendment which, while repealing the Prohibition amendment, also gave Congress the unilateral authority to control the interstate sale and delivery of alcoholic beverages. Those laws are enforced by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF).
Prohibition taught the United States one lesson it has since forgotten: legislation will, nine times out of ten, not work. I posted this to my Facebook page earlier:
It doesn’t work for drugs, extramarital affairs (yes some States have laws making it a crime to cheat on your spouse), sex between unmarried yet consenting adults, even adults of the same sex, and even with the exchange of money involved (i.e. prostitution). It didn’t work for abortion, and it certainly didn’t work during prohibition.
Currently Nevada is the only State in the United States where prostitution is legal and regulated. Laws against prostitution are costly to enforce, and it leads to a lot of other problems. Currently there are candidates for governorships who are campaigning on the idea of legalizing prostitution along with marijuana.
Which brings me to the "war on drugs". I’ll just say this: it’s time to surrender. The laws aren’t working. They are also costly to enforce, they’ve led to a thriving black market for contraband substances, and have in the end led to more problems than they’ve solved.
If we want to get rid of drugs in our society, we need to better teach our children to stay away from them. Hey if I could learn to stay away from drugs, so can others.
Legislation is not the answer. As I said, it is not working for prostitution and drugs, it didn’t work for prohibition and abortion, and it won’t work for many of the other things for which someone has said "there should be a law".
It half surprised me when I learned that some states2 have laws on the books criminalizing adultery, though in the wake of the landmark case Lawrence et al. v. Texas, 539 US 558 (2003), these laws are not really enforceable any longer, as are laws criminalizing fornication3.
And then there are laws banning pornography and other "obscene" materials. Oh dear God. Oh wait, it’s typically in his name that stuff that is considered "obscene" should be banned. That’s why the novel Fanny Hill was "banned" in the United States until 1960 (it was originally published in 1749). To quote Larry Flynt, "If the human body is obscene, complain to the manufacturer".
If I, as an adult, wish to seek out "obscene" material, what place has the government to tell me that I cannot do that? The answer is simple: absolutely none.
And "blue laws", which are laws prohibiting certain acts on Sundays, have got to be some of the dumbest laws ever conceived, let alone enacted. If I want to work on a Sunday (which I have, many times over), that is between me and God, not between me and the government.
Laws that do nothing for society, and actually infringe on the rights of others, have no place being enacted. Repeal the laws that do not work, and stop passing stupid laws that will not work and will only create a tingling sensation between someone’s legs whenever they say "at least it’s illegal".
Give me a break.
* * * * *
Trivia: Is the Eighteenth Amendment still part of the Constitution of the United States? Yes.
The amendment process established under Article V of the Constitution does not call for the text of the Constitution to be modified directly. Instead all Amendments that are ratified are called "codicil", meaning they are merely attached to the Constitution but override some part therein.
The fact that the Twenty-First Amendment repeals the Eighteenth does not mean the Eighteenth Amendment is removed from the Constitution. It means only that the Twenty-First Amendment invalidates or nullifies it, but we still leave it in place. This is important in preserving the revision history of the Constitution through time.
In interpreting the Constitution, where an Amendment and the main body of the Constitution conflict, the Amendment controls. However where two Amendments conflict, the newer Amendment controls.
This is also quite different from the standard legislative process in which acts of Congress do call for direct modifications to the US code along with additions and removals (repeals).