A constitutional amendment with a “sunset clause” would help, too.

Clayton E. Cramer:
There’s a difference between, “This should be illegal” and “This is constitutional.”I don’t see any strong argument for criminalizing what consenting adults do in private, but that doesn’t make it unconstitutional.

Yes, the Heritage Foundation, which is a very conservative organization heavily associated with the religious right, obviously decided to compare Lawrence v. Texas to Dred Scott, Plessy, and Lochner, implying it to be an act of “judicial usurpation”, solely because of general beliefs about the nature and proper application of the rational basis test, certainly not because of their opinion on the subject matter at all. The most that could be said for them is that maybe they didn’t support the crime, but were worried about future gay marriage cases (i.e. they’re not homophobic supporters of over-criminalization, just regular homophobes). I, personally, am not willing to give them even that much of the benefit of the doubt. I think they have made their policy preferences abundantly clear.

A conservative is a liberal who was mugged.
A libertarian is a conservative who was falsely accused.

I sure hope that the NYT report is correct. I consider myself a Conservative and I this been a concern for a long time. It seems like everything these days violates some kind of criminal statute.

Moreover, campaigning against a single annoying law (like line-drying, fireworks-bans) accomplishes virtually nothing. At the end of the day, there are still a multitude of State and local laws (and the correspondingly much larger number of enforcers of those laws).

“State and local law has always been far more vexatious”. Check.

“It has more direct impact on my actual life.”. Check.

“You seriously think I’m going to exert any time and effort over something like this?”. Oh. OK, noted.

You can set an example for opposing (and scaling back) local over-criminalization that the rest of use can point to, and perhaps follow.

Go for it!!!

You seriously think I’m going to exert any time and effort over something like this? I have a job, friends, family and a life. Picking my naval lint strikes me as a far more valuable than fighting petty battles over local policy.

That, in fact, is kind of my point — only those folks without a life are involved in the banality of local politics. Consequently, the quality of the governance is fairly low since anyone with real skills is doing something productive.

I thought we were talking about criminalization. I’m no fan of petty town councils, but you know what… you can move to another town. Also, your voice is much more likely to be heard and effective at that level, and you can organize more effectively.

No, my job and my life are here. I’m not going to incur major transaction and convenience costs to remedy a minor irritant. It’s insane to think that anyone would seriously contemplate disrupting their life in order to trade one meddlesome city government for another.

Moreover, town politics (at least around here) are even more opaque than national politics. Every council election is uncontested.

The rise in crime might have been an excuse for the laws, but it’s hard to see why fears of being raped or murdered would be assuaged by (for example) making guitars illegal.

Wow. You must be trying really hard to misunderstand what’s going on in order to conclude that guitars are what’s being made illegal there.

because I can walking into my councilman’s office (and my congresswoman’s office is 3000 miles away); because the town council is unlikely to use armed troops to back up its clotheslines bans

(1) My councilman doesn’t have an office, even if he did, why would he listen to me? He won his last election by 80% (the remaining 20% being spoiled or write-in).

(2) If you don’t pay the (civil) citation for line-drying, a contempt order will be issued. At that point, most people would give up but I’m sure an obstinate violator would find armed men at his doorstep sooner rather than later.

Many conservatives are not “late to the party.” They aren’t even on their way to the party.

I observe conservative interest in defendants’ rights when (and, largely, only when) a Scooter Libby or Conrad Black or Rush Limbaugh is being prosecuted. Otherwise, a standard conservative approach to criminalization is to prefer severe penalties for doobie-smoking, dirty-movie-watching, bong-selling and flag-burning, and a standard conservative approach to defendants’ rights is to discount the notion of a constitutional right to avoid the death penalty on the basis of actual innocence.

Late to the party? Because someone might be having fun at the party, most conservatives appear to want to shut it down.

Seems like all of the support for Corey May came from the Center and the Right. I always wondered why not from the Left.

(As others have noted, there’s no ‘e’ in his name.)

Selection bias, perhaps? Jeralyn Merritt at TalkLeft has been posting on the case for years, I know it has come up more than once at both FireDogLake and HuffPo, and I’ve seen it talked about on a bunch of other lefty blogs over the years.

Radley Balko, of course, rightly is the first blogger one thinks of, and he’s an actual libertarian (contrasting with the ‘Republican who smokes pot’ and Instapundit sorts), so more difficult to place on the rather useless left-right scale.

I don’t anybody here thinks it’s a bad idea if you want to take on your local government(s) over the clothesline issue. You can set an example for opposing (and scaling back) local over-criminalization that the rest of use can point to, and perhaps follow.

Go for it!!!

Because the fish rots from the head down.

Let’s use marijuana as an example. The states can legalize it for medical use or for recreational use, but until it’s taken off of Schedule 1, its use and possession will still be illegal under Federal law. Now that may not directly affect the private user (the DEA isn’t going to bust you for a joint the way a local cop might), but the business of growing and distributing marijuana is still going to be conducted on the black market. If you’re in the business of distributing marijuana, you still have to be pretty sly about it, lest you attract attention from the feds. Everyone involved is going to be waiting for the other shoe to drop. Until federal law changes, you simply can’t have a completely legitimate marijuana business, so the trade will continue to be operated substantially by organized crime.

I would agree that federal laws tend to be drafted better. However, that doesn’t solve the problem of those laws being one-size-fits all. At this risk of being excoriated on this very pro-second-amendment website, I’ll point out that the gun control laws appropriate in Montana might not be the same gun control laws that are appropriate in Compton. A law that might be “overcriminalization” in one locale might not be “overcriminalization” in another. Alas, under Federal law, that’s what we’re stuck with.

John Moore: I think a lot of the overcriminalization is a response to the dramatic crime rate rise that peaked in the early ‘90s.

That’s a charming, but naïve (imo) view. The rise in crime might have been an excuse for the laws, but it’s hard to see why fears of being raped or murdered would be assuaged by (for example) making guitars illegal.

Oren: I fail to see how a petty and overbearing town council (for instance, the recent trend towards banning clotheslines in my parts) is any better than a petty and overbearing Congress.

Because moving to another town is much less traumatic than moving to another country; because I can walking into my councilman’s office (and my congresswoman’s office is 3000 miles away); because the town council is unlikely to use armed troops to back up its clotheslines bans (unlike the armed raids against those evil guitar makers linked to above).

I fail to see how a petty and overbearing town council (for instance, the recent trend towards banning clotheslines in my parts) is any better than a petty and overbearing Congress.

I thought we were talking about criminalization. I’m no fan of petty town councils, but you know what… you can move to another town. Also, your voice is much more likely to be heard and effective at that level, and you can organize more effectively.

I’d just as soon not have to move to another country if the feds criminalize exhaling CO2 or something else of the stupidity they seem headed towards.

At least conservatives, for the most part (drugs being an egregious exception) sought criminalization and punishment at a local level. Much more dangerous is the federalization of crime — often favored by the left.

I fail to see how a petty and overbearing town council (for instance, the recent trend towards banning clotheslines in my parts) is any better than a petty and overbearing Congress. There are thousands of the former with no real business other than to harass and annoy the citizenry, all of which have a (relatively) larger enforcement arm. In contrast, there is only one Congress, with a full plate of actual policy to make and their enforcement is spread very thin.

At least in my experience, State and local law has always been far more vexatious than Federal policy, even where I find the latter to be unbelievably irksome. It has more direct impact on my actual life.

It does, of course, but to correct the problem you have to start somewhere. Starting at the Federal level makes the most sense. Until the Federal government gets out of the way, what the states do is largely irrelevant.

Why? For most people, the largest threat of prosecution comes from the local or State level — the DOJ is often frying much larger fish. State and local police outnumber the Feds 100:1 (guess) and come into far more contact with the average citizen.

Also, Federal laws tend to be poorly tailored.

In my experience, they are far better drafted than local laws, which generally read like they were written by someone with no legal familiarity.

To frame this as a “conservative” issue is a bit much. While it is true that conservatives were a lot less friendly to the “soft” treatment of crime, it is also true that ordinary Americans were justly scared of the perceived consequences.

At least conservatives, for the most part (drugs being an egregious exception) sought criminalization and punishment at a local level. Much more dangerous is the federalization of crime – often favored by the left.

Dotar Sojat: Seems like all of the support for Corey May came from the Center and the Right. I always wondered why not from the Left.

I think you mean Cory Maye not Corey May.

Dotar Sojat: Seems like all of the support for Corey May came from the Center and the Right.I always wondered why not from the Left.

Because, unlike Mumia Abu-Jamal, he was only defending his home and his daughter.

Liberals think that rapists who use their power to take sex from unwilling women should be jailed for a long time. Conservatives, too.

Liberals think that people who who use their power to take money from those who are less sophisticated should be jailed for a long time. Conservatives, not so much.

Conservatives (of the social variety) think that people who perform abortions should be jailed for a long time. Liberals, not so much.

It does, of course, but to correct the problem you have to start somewhere. Starting at the Federal level makes the most sense. Until the Federal government gets out of the way, what the states do is largely irrelevant.

Also, Federal laws tend to be poorly tailored. Federal law is one-size-fits all. But there may be laws that are necessary and proper in one state that are burdensome in others. Utah’s overcriminalization may be appropriate for Delaware.

I don’t see any strong argument for criminalizing what consenting adults do in private, but that doesn’t make it unconstitutional.

I think you have applied the rational basis test incorrectly in this instance. :-)

I agree that there are too many federal criminal laws that are overbroad as well as problematical in other respects.

Are you intentionally letting States off the hook here? As far as I can see, overcriminalization pervades all levels of government.

Oren: Can we distinguish between belief in over-criminalization and being law-and-order (I consider myself a law and order liberal/libertarian)? Believing that gambling or toking should not be a crime does not equate to wanting to let a rapist sentenced to 50 years out after 11 so he can continue to prey on the innocent. (Just to pick a random topical example). Nor does it equate to the idea that a criminal should go free for procedural (not constitutional) reasons. In fact, I think both of those beliefs are complementary – the more pointless criminal laws we excise, the more cop-time and prison space we can devote to violent criminals whose crimes have real victims. Of course, after their commentary (PDF) on Lawrence v. Texas, I somehow doubt that the Heritage Foundation has finally seen the light on whether moral opprobrium justifies legal restriction in the absence of a (separate) government interest. I’m skeptical, that’s all.

There’s a difference between, “This should be illegal” and “This is constitutional.” I don’t see any strong argument for criminalizing what consenting adults do in private, but that doesn’t make it unconstitutional.

What pleases me most about this is that my fellow conservatives are starting to realize that Big Government is Big Government is Big Government, even if some portions of it do things that we like. Big Government isn’t any less likely to avoid wasting money and doing stupid stuff at the Justice Department than it is at the Department of Education.

Scalia and Thomas are both principled conservatives, in my view. For Scalia in particular, I can think of several examples where he sticks to his principles and his formalism benefits criminal defendants (Apprendi, Hamdi dissent). That’s separate from the point I was trying to make.

In fact, I think both of those beliefs are complementary – the more pointless criminal laws we excise, the more cop-time and prison space we can devote to violent criminals whose crimes have real victims.

Of course, after their commentary (PDF) on Lawrence v. Texas, I somehow doubt that the Heritage Foundation has finally seen the light on whether moral opprobrium justifies legal restriction in the absence of a (separate) government interest. I’m skeptical, that’s all.

I didn’t realize that attempted murder (the underlying offense in Crawford v. Washington) or discharging firearms into an occupied structure (the underlying offense in Apprendi v. New Jersey) were now considered “white collar.”

Or is your claim that Justices Scalia and Thomas really aren’t conservative?