Malice vs. Stupidity

Heinlein's (or, if you insist, Hanlon's) Razor:

Never attribute to malice that which can be adequately explained by stupidity, but don't rule out malice.

Then there's Grey's Law:

Any sufficiently advanced incompetence is indistinguishable from malice.

And Rick Cook's admonition:

The key to understanding the American system (of government) is to imagine that you have the power to make nearly any law you want. But your worst enemy will be the one to enforce it.

One more on top of that, from my comments recently:

Congress does two things well - Nothing and Overreact. -- Adam Putnam

The topic of the 2008 Consumer Product Safety Improvement Act has once again arisen in the blogosphere. Megan McArdle brought up one unintended consequence of that particular overreaction, and that was picked up in a couple more places, like Tam's View from the Porch (not a good idea to get Tam mad at you), and The Washington Examiner. But these pieces were primarily about children's books, and the CPSIA covers a lot more than just books.

Walter Olson of Overlawyered has been on top of this since the legislation was introduced. From a Forbes piece from January:

Self-congratulation makes for bad law.

If someone you know volunteers at a thrift store or crochets baby hats for the crafts site Etsy or favors handmade wooden toys as a baby shower gift, you've probably been hearing the alarms about the Consumer Product Safety Improvement Act (CPSIA).

Hailed almost universally on its passage last year--it passed the Senate 89 to three and the House by 424 to one, with Ron Paul the lone dissenter--CPSIA is now shaping up as a calamity for businesses and an epic failure of regulation, threatening to wipe out tens of thousands of small makers of children's items from coast to coast, and taking a particular toll on the handcrafted and creative, the small-production-run and sideline at-home business, not to mention struggling retailers. How could this have happened?

I find the title to Olson's piece particularly interesting, since it echoes a particularly fine book, Thomas Sowell's Vision of the Anointed: Self-Congratulation as a Basis for Social Policy. Professor Sowell's book was published back in 1996 and it covers thirty years of history, so the CPSIA has a lot of company. I strongly recommend it, if you haven't read it.

Malice, or "sufficiently advanced incompetence"?

Does it really matter?

For example, let's look at the McCain-Feingold Incumbent Protection Campaign Finance Reform Act. It passed in the House by a fair margin, and squeaked through the Senate, and was signed into law by G.W. Bush, even though Bush said he thought parts of it were probably unconstitutional. Shortly after passage, training seminars were instituted to instruct incumbents on the nuances of the bill they had just passed.

The general response when told what they could and couldn't do under the restrictions of the new law? "I didn't know it said THAT!"

The tradition of not reading bills (a book on the law and its meaning runs a mere 457 pages) has a long, rich history. The War on (some) Drugs™ has resulted in numerous unintended consequences from poorly thought-out legislation and laws enforced with either malice or incompetence sufficiently advanced so as to be indistinguishable. Radley Balko has made a career out of reporting on those. But there are others that people know less of. I wrote about the prosecution of Christopher and Trudy Sherburne for the possession of ten rounds of tracer ammunition. The state of California destroyed their home and business - literally - over those ten rounds, and sentenced Christopher to five years in prison.

I've written about George Norris, whose business was raided and in effect destroyed by gun toting, body-armor clad agents of the Fish & Wildlife Service over some rare orchids that he insisted were legally imported, but the Feds insisted were not. The Feds have unlimited funds with which to persecut, er, prosecute. Mr. Norris did not. He plead guilty at the advice of his attorney and got a 17 month sentence. Read the update to the story here. Store all breakables before you do. Then read the story of Krister Evertson and his persecution by the Feds.

And it's not just laws, look at a recent regulatory change. The EPA has now classified carbon dioxide as a pollutant, and the EPA has the power to regulate the production of pollutants. I'm unsure where, exactly, that power comes from under our Constitution, but it's a fait accompli. What will the unintended consequences of this decision be?

I've quoted Rand's take on this several times (do read that link). As others have noted, as time goes on she seems more and more prescient.

And now the Obama Administration wants to shove a 1000+ page bill that totally reforms the American health-care system through Congress, and Congresscritters aren't even shy about admitting that they don't know what's in it.

At some point it becomes immaterial whether the laws were due to incompetence or maliciousness. That point is when their implementation is indistinguishable from maliciousness. I submit that we've passed that point, and the only thing preventing even more massive public blowback is our general ignorance and our well-established general respect for the Rule of Law. As I've said, the .gov has done a good job of practicing such persecution on a retail level, rather than wholesale, but it's getting to the point where the abuse is going wholesale and the stories are getting out to the mass audience.

I've also stated that I know where my personal "line in the sand" is. I suspect that the number of others reaching their own conclusion on that subject is growing.

Too bad it won't result in a restoration of the Constitution. Entropy doesn't work that way.

And I need to cheer the hell up.

UPDATE: PolyKahr has a related post up.