Saturday, July 25, 2009

The Stupidest Law In The Nation?

Evidently the bushies had a discussion about whether the Posse Comitatus Act of 1878 was the stupidest law on the books, as they wrestled with the idea of sending the army into Buffalo, NY to arrest some "neer-do-well turrissstttsss" during 2002.

Now that Professor Gates has been falsely arrested, a Massachusetts lawyer who has bemoaned the statute which was used to charge and arrest Professor Gates, offers that statute as the most stupid in the land.

Lawyer Matthew S. Cameron has a series of posts concerning the history of the law that the Cambridge Police used to arrest Professor Gates, beginning with Part I:
But, like the man said, the past isn’t dead … it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality.
(An Idle And Disorderly Statute, Part I). Matthew also bemoans the breadth of a statute that covers anything from Professors in their own home to romantics out in public parks:
The accosting and annoying provision of [Sec. 53] as it now reads is impermissibly and unconstitutionally underinclusive, in that it excuses an entire potential class of perpetrators while concurrently failing to protect their victims solely on the basis of their respective genders. As such, this provision’s strikingly anachronistic, unmistakably paternalistic, and quintessentially Puritanical language and intent are outshone only by the luminous glare of its arrant unconstitutionality.
(An Idle And Disorderly Statute, Part II). Matthew sums it up and gets to the gravamen of the matter when he concludes, in 2008 well before the false arrest of Professor Gates, that:
... this may well be one of the stupidest criminal charges in the Mass. General Laws—if not any state criminal code—now in regular active use.
(ibid, emphasis added). Thus, when President Obama said the Cambridge Police acted stupidly in arresting Professor Gates, we know of one Massachusetts expert lawyer who whole heartedly agrees (and even agreed way before the President said it!).

It seems to be axiomatic that if a law is stupid, then enforcement of that law is also stupid. If a law is the stupidest, then enforcement of that law is also the stupidest.

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