“Unintended Consequences”: A Feature, Not a Bug

It’s misleading, in my opinion, to refer to the “unintended consequences” of legislation. Most of the powers government exercises, and the bread and butter of its functionaries, are probably “unintended consequences” of legislation. Despite the role that industry lobbyists play in drafting legislation, there are still probably a considerable number of idealistic Congresscritters and legislators who actually intend the legislation they churn out to achieve its publicly stated aims. These people may be statists, but they’re sincere; when they pass “A Bill to Do X,” it’s because they want to do x. The problem is, such people are useful idiots for the interests that really benefit from the legislation. And from the standpoint of the latter, the “unintended consequences” are the whole damn point of it. Functionally, unintended consequences are what legislation is really all about.

As I recall, sponsors of the WWI-era Sedition Act gave all sorts of assurances on the floor of Congress that it would be used only in a relatively narrow set of clearly defined circumstances, and would not be used for wholesale crackdowns on dissent. The bill itself included provisions to “guarantee” it wouldn’t be abused. You probably know how that turned out; if not, just Google “War Hysteria,” “Red Scare,” and “A. Mitchell Palmer.”

The same thing has happened in the enforcement of “counter-terror” legislation today. The Washington Post reports the FBI routinely ignored its own procedural rules intended to protect civil liberties. “The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews.”

The RICO statutes, ostensibly passed for the narrow purpose of prosecuting organized crime operations (you know, like the Mafia), have been used against targets ranging from Operation Rescue to the antiglobalization movement.

There’s a whole range of laws, originally passed for some noble-sounding and limited purpose, whose present function is mainly to allow government thugs to shop for a pretext to go after people they don’t like. If you want to get somebody, you just look through the statute book (like Neo in the gun shop before the lobby scene) until you find some arcane law that’s tailor made for busting him. There’s no such thing as too much of a stretch.

Today in New Orleans, according to a news item brought to my attention by regular reader and commenter Aster, statutes originally created for dealing with predatory child molesters are being used to harass sex workers. Hundreds of prostitutes have been charged with “unnatural copulation” (i.e. oral or anal sex), a felony that NOLA cops and prosecutors use to justify registering convicted sex workers as “sex offenders.” This means, in practice, that their neighbors get picture postcards identifying them, and that they are excluded from all public shelters except special coeducational sex offender shelters with no separate safe area for women (remember the Astrodome?). Being on the sex offender registry means getting excluded from employment by people who automatically (and naturally enough) assume a “sex offender” is someone who, you know, was messing around with little kids—the ostensible purpose for which the legislation was originally passed.

For all too many of the people actually staffing the machinery of government, shit like this isn’t an “unintended consequence.” It’s a license. No matter how impressive the title of a bill, or how high-minded its sponsors sound on the floor of Congress, in practice it means giving petty despots and sociopaths an unlimited power to harrass, rob, imprison and murder. The simple fact of the matter is, when you will to achieve an end through the coercive state, you also will the “unintended consequences.” Live with them. Own them. “Unintended,” my ass.