5 things we made illegal in America

Unions, poverty and children, oh my

Photo by Tingey Injury Law Firm on Unsplash

In the United States, when we want to discourage certain behaviors, we can either make it explicitly illegal, or make it so unpleasant and inconvenient that it may as well be illegal. This article is about the second kind of quasi-legal mandate.

Interestingly, the law recognizes that quasi-legal behavior can be an issue. For example, in landlord-tenant law, there is a concept called “constructive eviction.” The idea is that if the landlord can’t get rid of tenants legally, the landlord can make the tenants’ life so unpleasant that the tenants will just move out on their own. Shutting off utilities or refusing to do needed repairs are two examples of ways landlords can try to accomplish this goal. But unless the court orders the tenants evicted, the landlord is not allowed to take any of these steps. Instead, if landlords take it upon themselves to rid themselves of problematic tenants, the court can award damages to the tenants for “constructive eviction.” Essentially, the landlords have taken the law into their own hands.

Similarly, employment law has a concept called “disparate impact.” If a law is made that is non-discriminatory on its face, but by its nature has a greater impact upon Black people, or women, or another protected group, then that law is deemed unconstitutional. It may claim to be race-neutral, but the reality is quite different.

And Republicans intent on stopping people of color and young people from voting have passed laws making it harder, or just downright unpleasant to do so. What other purpose does it serve to ban people from giving out water to voters standing in line, something Georgia did? The goal is to make some people just give up and go home. The state can’t make it illegal to vote, but it can make voting difficult and unpleasant.

We have a history of this type of legal regime in our country. Indeed, the American apartheid known as Jim Crow was based upon these approaches. The 13th amendment to the Constitution freed Black people from slavery, the 14th amendment guaranteed Black people all the rights of citizenship, and the 15th amendment guaranteed Black people the right to vote. But poll taxes made it unaffordable for many poor Black people to vote, and the mass…