Should Outdated Laws Stay or Should They Go?

Even “outdated” laws have staying power

Illustration by Emma Moreman

Each legislative session produces more than 1,000 bills, of which only few become law. Among those that succeed are a handful that are strictly ceremonial ideas introduced on behalf of school children across the Granite State to teach them the inner workings of the legislative process. Maybe that’s why New Hampshire has so many official symbols for everything, from the state’s amphibian (red-spotted newt) to our very own mineral (beryl). The Granite State may even hold a record for having not just one official state song (“Old New Hampshire”), but eight honorary alternative state songs.

This trend of bringing children to the Statehouse to bird-dog legislation so annoyed a pair of liberty-minded lawmakers wary of the expansion of government, they came up with an alternative lesson plan.

In 2015, Representatives John Burt, from Goffstown, and Max Abramson, of Seabrook, decided to teach kids how to repeal, not pass a law. The two started a statewide school contest to name the state’s “dumbest” law and planned to employ the students to help repeal it.

The contest garnered quite a bit of attention and a dozen prospects for the title of the state’s “dumbest” law. The winning entry came from Newport Middle High School, whose students cited a law that prohibits the collecting of seaweed or rock weed at night. An animated teen from the school declared the injustice was “bogus” in an on-camera interview on New England Cable News, and Abramson said the students even testified at a legislative hearing and “got cross-examined a little bit.”

The Union Leader editorialized in support of the contest and the principle it promoted adding, “Imagine if the New Hampshire Legislature took 10 percent of the effort it puts into writing new laws into clearing outdated and useless laws off the books.” They also added their two favorite “dumb” laws — one from 1935 that prohibits hunting with the aid of a ferret and a 1971 law banning open sugar bowls in public food establishments, which also regulates the width of the holes in the dispenser.

All would eventually learn that repealing seemingly outdated laws is easier said than done. Law, like culture, prefers slow and incremental change. Laws are typically responses to practical situations, says David Hess, a former house majority leader and retired attorney from Hooksett.

“Original passage in most instances was probably based on some rationale,” he says, “but because of changes in technology or progress in society the law may have become antiquated.”

Each law is like the tip of an iceberg with a lot of hidden institutional inertia and expert minutiae that doesn’t appear until it is challenged. For example, live sea and rock weed are valuable products owned by the public, and overharvesting can impact marine animals and their natural habitat. Many states ban the use of hunting with ferrets because it violates basic “fair chase” rules. As their name implies, ferrets “ferret out” animals from the safety of their dens or burrowed nests. Ferrets, like their cousins the weasels, are effective killers; so effective that they were used in the mid-19th century to protect grain stores. In the wild, they can unbalance the local ecology and wreak havoc on poultry farms.

Many places govern the self-service disbursement of sugar in public restaurants because, as the World Health Organization says, it is critical to “measure carefully and guard against contamination.” Sanitation concerns faded after World War II, when packets of sugar could be produced cheaply.

Granted, there are few examples of people being convicted of these laws, and they may prove to be hard to enforce, but are they unnecessary? Are they contrary to the public good or just to public opinion? And what are the consequences of leaving the law on the books for extreme cases? Laws such as New Hampshire’s recently repealed anti-adultery law were hot potatoes for many years as politicians didn’t want to condone bad behavior. Those committing adultery were hardly at risk of being charged, but how many divorcing couples found leverage in this law, if not solace?

Hopkinton attorney and former state legislator Gary Richardson says judges can choose not to enforce laws like these. There’s nothing keeping a judge from saying to him or herself that laws enacted 100 years ago from another era are no longer relevant, and dismissing the case.

The interpretation of the law could be off base too. Richardson points to a relatively new sexting law, noting it was aimed at older men who might impersonate a younger person to arrange a sexual encounter, but it was used to convict a 17-year-old boy for sexting a 14-year-old girl. “The law was never intended to cover two teenagers sexting one another,” he says. The state Supreme Court will decide this case.

There are some laws previously ignored or thought to be unenforceable that have been re-employed to good effect. Hess says an example is the “broken window” theory employed in New York City in the 1990s. The theory posits that one broken window left unrepaired soon condemns all the other windows on the building to a similar fate. When long-overlooked petty crimes such as graffiti, loitering, skipping out on subway charges or dancing in unlicensed establishments were strictly enforced, they resulted in, as Hess says, a “significant drop in overall crime rates, particularly serious crimes against both persons and property.”

The Newport students’ hopes to repeal the seaweed harvesting prohibition was overwhelmingly defeated on a voice vote in the New Hampshire House. The “dumbest law” contest also fizzled out and Abramson left the Legislature, but he still rails against government overreach. “Victimless crimes and prohibition laws make matters worse,” he says. “They are not enforceable, increase crime and contribute to the breakdown in the legitimacy of the law.”