by A few weeks ago, Harvard Law School hosted a conference in honor of Bill Stuntz. I already counted myself among Bill’s many admirers and friends, but my impression that people like Bill don’t come along very often was fully confirmed by this outpouring of respect and admiration from a remarkably diverse and accomplished group of people.
I haven’t listened to all of the conference proceedings yet, but thanks to David Skeel’s description, I made a point of listening to Mike Seidman present his paper on the relationship of Bill’s faith to his scholarship. Seidman’s tribute to Stuntz includes one of the best and most sympathetic summaries of Stuntz’s Augustinian approach to law and legal scholarship– which he and Skeel have called “the modest rule of law”– that I’ve heard anywhere. It is worth listening to in full and starts at about 47:30 in Part 1 of the March 27 webcast.
Seidman notes in passing Stuntz’s opposition to moralistic legislation. Stuntz has argued that sometimes enforcing laws instantiating even generally agreed-upon social norms can fuel public opposition to those norms, incurring disrespect for the law and encouraging behavior the laws were intended to discourage. Stuntz’s cautionary note connects nicely with Bruce Yandle’s “Bootleggers and Baptists” theory of regulation, which holds that regulation is often the result of support from people who actually believe in the norms embodied in the regulation (“Baptists”) and those who may be indifferent to the norms but stand to profit financially from the regulation itself (“bootleggers”). Which brings me, finally, to the main subject of this post.
Over the past several months, my home state of Alabama has been in the middle of a pitched battle over casino-style gambling. Like many other states, we have some casinos run by Native American tribes; we also have a few dog tracks and even a former horse racing facility (now another dog track) that its backers initially hoped would rival Churchill Downs. The current gambling wars were sparked by the opening of “bingo halls” (bingo is legal in Alabama) that instead of using paper cards and bouncing balls offer players the chance to enjoy the game using machines that look suspiciously like slot machines in settings that look suspiciously like casinos.
At first blush, Alabama’s bingo wars appear to be poster children for Stuntz’s thesis about self-defeating crimes and a stark verification of the bootleggers and Baptists hypothesis. Alabama is one of the increasingly few states that doesn’t have a state-run lottery, and I don’t doubt that most Alabamians also oppose casino-style gambling. But, as Stuntz and Yandle might have predicted, a well-funded pro-gambling coalition has put Republican Governor Bob Riley on the defensive—charging that that his opposition to gambling stems more from contributions from out-of-state gambling interests (“bootleggers”) than from principled concerns about morality or the well-being of vulnerable citizens. (Yes, Riley is a Baptist.) The gambling interests have also made a point of noting that shuttering bingo parlors puts people out of work during a recession and of arguing that “permitted but regulated and taxed” bingo would be a boon to the state’s budgetary woes.
The bingo wars have generated some wonderful political theatre. Some of the highlights have been an Alabama Supreme Court opinion on the metaphysics of Bingo, the appointment by Gov. Bob Riley of a Special Task Force on Gambling, in part because Attorney General Troy King has seemed unenthusiastic about taking on the bingo operators in this election year, the abrupt resignation of the Special Task Force’s director after a private investigator retained by gambling interests produced evidence of the director’s recent gambling activity at a Mississippi casino, a failed pre-dawn raid involving 140 state troopers at a Bingo parlor in Dothan, the announcement by the new Task Force director that he would not be deterred by the failure of said raid, the announcement by the sheriff and other local officials in one of the poorest counties of the state that any attempt to remove Bingo machines from the local dog track would be resisted (forcibly?) by local authorities, a passle of court hearings, and now, a bill in the legislature to establish a bingo commission. And, did I mention, an FBI investigation?
All this seems to suggest dramatically that some legal modesty is in order, but I’m not so sure. There’s not room left in this post to rehearse the arguments supporting gambling prohibitions but Maura Casey’s recent article in First Things offers a quick introduction to the problems associated with gambling, and, in particular, slot (bingo!) machines– addiction (especially among women), indebtedness, crime, and collateral damage among vulnerable family members. Casey’s article also includes a fascinating discussion on the gambling industry’s research into mechanisms that increase the length of time gamblers stay at slot machines.
The FBI investigation mentioned above apparently stemmed in part from a lobbyist’s alleged offer to contribute $250,000 to the campaign fund of a state senator, but apparently only after the senator told the lobbyist where he stood on the bingo issue. Gambling proponents apparently have plenty of money left over, even after meeting their minimum-wage payrolls and paying their taxes, to spend on extending their franchise. They also have had money to fund an “Astroturf” campaign including appearances by country music stars (who happen to own interests in the Dothan bingo parlor) and relentless paid TV and radio advertising dedicated to instilling in the populace the idea that the elected officials who oppose them are cynical creeps who have been bought off my Mississippi Indian tribes and are keeping the public from their “right to vote on bingo.”
Ceding the playing field to the bingo operators under the circumstances seems, to me, unduly modest.
I, too, am a friend and admirer of Bill Stuntz and a proponent of his and David Skeel’s notion of “the modest rule of law.” It strikes me as the right alternative to the “Christian nation” and the “Christian enclave.” To immodestly quote myself:
“Christians should favor restrained government power. Without regulation, citizens will make decisions at the expense of other people. But government officials are likely to use power to their own advantage; power corrupts. In addition, Christians should favor limits on law because freedom is a positive good. Christians should favor, in William Stuntz and David Skeel’s phrase, ‘the modest rule of law.’ Law should step in only in the most important matters. Of course, the challenge is to determine what the most important matters are. Like many of the classic virtues, which require the appropriate mean (e.g., courage) between two extremes (recklessness and timidity), restrained Christian political responsibility is a mean between two extremes: dominance and withdrawal. Such an approach to positive law is more in accord with the Jesus’ emphasis on heart attitudes and character, rather than religious approaches that focus on the letter of the law. The approach would leave a larger area of human responsibility to the exercise of conscience than to regulation.” Faith and Law at 103.
At times, however, my position could best be described as “extreme ambivalence” (another aspect, possible, of being Augustinian). California’s current “legal modesty” issue is medical marijuana. It passed as a state proposition several months ago. Already, Los Angeles’s generally liberal city council has passed and it’s generally liberal mayor has signed an ordinance severely limiting the number of medical marijuana dispensers. Expect several years of litigation.
Recently, as I reflected on the Mexican drug wars, fueled by American money and dependence on illegal drugs, I wondered whether legalization might be the answer—make drugs legal, regulate them like alcohol and tobacco, and let Mexicans have their country back.
But then, I took some out-of-town visitors on a stroll through LA’s Venice Beach. The street was full of down-and-out young people in a stupor. At every 20 paces, we were approached by dazed teenagers (maybe 18 yo) promising us that the doctor was in and that they would lead us to the delights of medical marijuana. This is America’s first experiment with legalized pot. It did not look too promising. In general, I think people should control their own lives, but short of another John Wesley, Billy Sunday, or Billy Graham, I’m not sure what the answer is to the drug issue.
See David Skeel’s comments on Seidman’s comments on why Bill Stuntz and other Christian scholars often leave their faith implicit, rather than explicit:
http://www.law.upenn.edu/blogs/dskeel/archives/2010/04/implicit_and_explicit_christia.html