Embracing the Illegal September 28, 2013
Birth Control, Oral Sex, and Interracial Marriage
During my lifetime the use of birth control, engaging in oral sex, and interracial marriage were all illegal.
Think about that.
It was illegal in certain states for married couples, for anyone, to use birth control.
During my lifetime, it was illegal for whites to marry blacks.
During my lifetime, it was illegal to engage in oral sex and gay sex.
I grew up taking birth control for granted. It was not until I was a 2nd year law student studying constitutional law that I learned that the sale of birth control was banned in many states in my lifetime.
I grew up and went to college in Rhode Island, where oral sex between a man and a women who were not married was illegal even in 1996.
So, things we do and take for granted (using birth control, marrying the person we love, engaging in consensual sex) were all illegal in my lifetime.
This is Import every time someone says, "you shouldn't worry if you've got nothing to hide."
Social Norms and Law Change
Certain things are illegal. And some of them will become legal in your lifetime. Pot is legal in Colarado and Washington state. It's legal for medical uses in other states.
It took many years for this illegal activity to become legal.
And your children will grow up and not understand Cheech and Chong just like I don't understand prohibition.
Embracing the Counterculture
The United States has grown and evolved because we have a strong counterculture. Sometimes we embrace the idea of counterculter.
But rarely do we deeply understand that the very illegal, subversive, countercultural ideas are the things that drive society forward to be a better, more inclusive society.
We must actively embrace the counterculture.
That is why we have the balance between the state being able to enforce laws and the citizens being able to shape laws... both by openly discussing the world and by being secure in their papers and private effects.
We need to allow a big degree of freedom for people to explore extra-legal activities so that these people can help shape a better world for my children and my children's children.
Imagine if law enforcement had the power in the 1960s and 1970s that it has now.
Imagine if black kids were "warned off" from dating white kids and vice versa because the 1960s cops could see the black and white kids sharing nodes on a social graph.
Imagine if there was a "war on birth control" to support the moral norms of the 1960s. All the phone calls related to distribution of birth control were monitored. It's likely that there would not have been the critical mass of birth control users or retailers that could demonstrate to society that birth control was a good thing.
There Is No Final Frontier
For me, it feels like gay rights are the final frontier. In my lifetime, I've seen the evolution from the necessity of being in the closet (housing and job discrimination) to the legality of gay marriage.
But the strides that people of color, pot users, gays, birth control users, etc. have made are good. But we are not at the utopian society place and never will be.
I don't know where the next set of social drivers are coming from (although, when my kids hit high school, I guess I'm going to find out), but they will come.
And those next social drivers will come from illegal behavior that pushes social norms in the right direction.
Privacy to Learn
The folks who do push those boundaries need the privacy to learn and explore.
That's why the 1st, 4th, 5th, and 14th Amendments exist. They exist because the framers (and the post Civil War legislature) understood that the government must be constrained and restrained such that society can evolve.
The whole NSA capturing all of our communications is a huge obstacle to this social evolution.
Think About It
So, as you think about and discuss the government capturing and storing all our private communication as well as doing significant analysis on our public information, think about how this could destroy the ability for the folks who are engaging in illegal, but societally beneficial, behavior. It's the birth control using, interracial marrying, pot smoking, gays that are moving our society forward.
We must protect them from being chilled or outright destroyed by an overzealous but of folks who "are the good guys" "just doing their job" "keeping us safe from the terrorists."