It appears that the Supreme Court of the United States is about to hear a case about honking horns.
The question at issue is whether state or local authorities may outlaw the honking of car horns when a person isn’t issuing a warning but registering an opinion, positive or negative, as the case may be.
A sheriff’s deputy was quickly on the spot to issue her a ticket for “illegal use of horn.”
Thus began the long trek to SCOTUS.
I have considerable sympathy for that deputy sheriff.
When TV screenwriters were on strike recently, a clump of them paraded and made a racket near my office in New York.
I didn’t much like that.
I liked it even less when my taxi driver, in response to signs bearing the legend “honk to support us,” repeatedly leaned on the instrument to declare his bona fides.
The Duke of Wellington is said to have disapproved of his men cheering because it seemed to him to come dangerously close to their expressing an opinion.
I know what he meant.
The people who are against laws banning honking horns in public to show one’s support (or, alternatively, to register one’s disapproval) say that it’s a matter of protecting free speech.
One might ask whether the First Amendment guarantees the right to make an audible nuisance of oneself.
I will leave the determination of that question to lawyers.
What immediately struck me about the case was how silly it seemed.
And it seems silly, I think, from opposite points of view.
Both parties to the horn-honking controversy are too promiscuous in their deployment of the law.
Those who want to outlaw honking car horns as an expression of opinion are too ready to employ the law to interdict something they dislike.
Those who want to be able to honk away whenever and wherever they please are ready to wrap themselves in the majesty of the First Amendment to protect indulging in their irritating habit.
This is where the Greek lawgiver Solon and the British jurist John Fletcher Moulton come in.
Solon thought that there should be very few laws, but that those few should be strictly enforced.
I would go further and suggest that, as a prophylactic against the overpopulation of laws, all laws should be automatically retired after a set period, three years, say, or five.
Those that, on mature consideration, are deemed to serve the public would be eligible for another term, but only after having run the gauntlet of legislative scrutiny.
That would be one blow against the waste, fraud, and abuse of laws.
All social life, he observed, takes place on a spectrum between absolute freedom at one end and positive law at the other.
In some areas of life, we’re completely free to do whatever we like.
In others, we’re constrained by the coercive power of the state about what we must and must not do.
In between is a vast realm, more or less free, more or less restrained, governed not by law or by whim but by custom, manners, taste, and convention—the domain, Moulton said, of “obedience to the unenforceable.”
“The real greatness of a nation,” he said, “its true civilization, is measured by the extent of this land of obedience to the unenforceable. It measures the extent to which the nation trusts its citizens, and its area testifies to the way they behave in response to that trust.”
Already, in the 1920s, Moulton worried about the incursion on this intermediate realm of ordered liberty from increasing statism, on one side, and increasing anarchy, on the other.
Now, 100 years on, we have traveled far down that road.
The intermediate realm that Moulton praises has been further and further compressed.
This has tended to erase the critical difference between the idea that one can do something—i.e., that no law prohibits it—and that one may do it.
“There can,” Moulton observed, “be no more fatal error than this.
“Between ‘can do’ and ‘may do’ ought to exist the whole realm which recognizes the sway of duty, fairness, sympathy, taste, and all the other things that make life beautiful and society possible.”
Moulton understood how critical the extent and health of this realm is, especially to the success of democratic regimes.
“It is this confusion between ‘can do’ and ‘may do,’” he said, “which makes me fear at times lest in the future the worst tyranny will be found in democracies.”
Why? Because, Moulton observed: “Interests which are not strongly represented in parliament may be treated as though they had no rights by Governments who think that the power and the will to legislate amount to a justification of that legislation. Such a principle would be death to liberty. No part of our life would be secure from interference from without.”
When it comes to honking your horn, for example, should the law be involved on one side or the other?
Or should it be a matter of “obedience to the unenforceable,” a matter for manners, good taste, and a well-developed sense of the appropriate?
“If I were asked to define tyranny,” Moulton concluded, “I would say it was yielding to the lust of governing. It is only when Governments feel it an honorable duty not to step beyond that which was in reality, and not only in form, put into their hands that the world will know what true Freedom is.”
Tyranny as “the lust for governing.” There’s a lot to be said for that definition.
It’s especially pertinent in those societies, such as ours, where that lust is semi-concealed behind a scrim of aspiring legislators camouflaged as bureaucrats and public servants.
They tend to serve only themselves and are accountable not to any voters but merely to the apparatus they control.
I think people should be considerate about tooting their own horns.
But I don’t see why the busybodies we allow to meddle in our affairs should be promulgating laws about it.
