From Ken at Popehat, West Virginia House of Delegates Member Jeff Eldridge has offered legislation to criminalize sale of Barbie dolls.

H. B. 2918
(By Delegate Eldridge)
[Introduced March 3, 2009; referred to the Committee on the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §47-25-1, relating to banning the sale of “Barbie” dolls and other dolls that influence girls to be beautiful.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §47-25-1, to read as follows:
ARTICLE 25. BARBIE DOLLS.
§47-25-1. Unlawful sale of Barbie dolls.
It shall be unlawful in the state to sell “Barbie” dolls and other similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.

NOTE: The purpose of this bill is to ban the sale of Barbie dolls and other similar dolls.

The glib reaction to this bit of obvious silliness is that West Virginia must have solved all of its serious problems, leaving legislators with too much time on their hands.  But the fact that this proposed law doesn’t “have a lot of teeth” brings me small comfort.  The use of criminal law for purposes of social engineering has become pervasive.  While initially, laws may have been thoughtfully designed to promote positive public policy, it has since devolved into a blunt object to appease political interest groups and obtain personal political recognition for their sponsors.

Ken is unimpressed with Eldridge’s purpose:

The proposal that Barbie dolls hurt little girls by forcing them to dwell on beauty over brains is a debatable one. I played with G.I. Joe dolls and Star Wars “action figures” as a child, and it does not appear that I was imprinted with the notion that martial prowess reigns supreme over intellect. Although I have worked hard to look like Jabba the Hutt.

This is the first, and likely the last, time I will mention Jabba the Hutt at Simple Justice.  But the idea that someone will propose a Jabba the Hutt Law doesn’t strike me as too far-fetched.  Sympathies to Ken, by the way.

The reason I choose to see this as more than a joke is that we have been inundated with laws, criminal laws, that are designed to give the appearance that government is doing something about a popularly perceived problem.  Note that these laws don’t give rise to a civil cause of action, or regulatory control, but criminal sanctions.  Consider whether Eldridge is really suggesting that the cops shoot to kill the store manager who refuses to take down the Barbie display in the mall window?

At one point in time, long ago in a galaxy far away, the creation of crimes was reserved for things that caused sufficient actual harm that they warranted punishment.  Legislators understood that the creation of crimes was reserved for only serious matters, and they did not try to burden the penal codes with daily annoyances, odd-ball situations or, as here, social engineering.  To do so would not only be considered inappropriate, but would reduce the legislator’s credibility to zero in the eyes of more serious colleagues.  This has all changed, to the point where someone would be goofy enough to propose outlawing Barbie without fear of never being invited to lunch again.

Eldridge claims that his purpose in proposing such a silly law, with no chance of passage, is to “start the discussion” about promoting physical beauty over intelligence.  Ken rips his head off for this:

A closely related specimen of legislative self-indulgence is the “I just want to start a dialogue” law — the bill proposed not out of a reasonable hope that it will be passed, but out of a hope that it will inspire discussion of some social issue the legislator wants to talk about. Once again, such legislators promote contempt for the rule of law — they use the legislative process as a plaything or a soapbox, not as a rule-bound tool for the people’s business.

Taking this in a somewhat different direction, the games played with penal law is making it impossible for anyone to know whether their conduct is lawful or criminal.  Yesterday’s lawful, and often universally accepted, conduct is tomorrow’s crime.  And real people get prosecuted for it, and often go to prison for it, despite the fact that it was common conduct before and hardly crosses any moral imperative.  Other times, these crimes when intentional are already covered by existing offenses, but include a twist that criminalizes accidental (which by definition means unintended) harm, another new frontier of the penal law for legislators who feel compelled to prove their bona fides.

Politics is indeed the place to have discussions about good policy and bad, and how government can promote the public interest and satisfy the needs of citizens.  But the resort to creating crimes as a regular practice, even silly ones like this Barbie law, as the mechanism has proven dangerous and destructive. 

We already have enough crimes to guarantee, if one looks hard enough, that every man and woman in this country can be found to be a criminal.  Do we really need to add children as well?