Perhaps you heard: A California appellate court overturned a rape conviction last week thanks to a 140-year-old law that's still on the books.
It's a pip, too. A man entered a sleeping woman's dark bedroom after her boyfriend walked out and began having sex with her. She awoke and resisted once she realized it wasn't her boyfriend.
But the law, from 1872, makes rape by impersonation a crime only if the victim is a married woman and only if the man is pretending to be her husband.
Handcuffed by the law, the judges reluctantly overturned the criminal court conviction. A new trial has been ordered.
How about new legislation to update California law to the 21st century? Assembly Speaker John A. Pérez said on Friday that changing the law would be a top priority in the new legislative session, which started Monday. Ya think?
That, in a nutshell, codifies a large part of the problem that exists in government ours, and Washington's, too. We tend to look at government today and think it's gotten away from us, that it's spun out of control. No, it's the opposite. We are drowning in a quicksand of accumulated law, a massive, convoluted, rigid structure that has taken on a life of its own, making it almost impossible for lawmakers to do the job of governing sensibly, responsibly and within budget.
When we complain that government is too big, we should be referring not to size, but density.
This accretion happens slowly, organically. No one notices. Laws pile up upon laws, sometimes because of each other, sometimes conflicting with one another, making adaptation essentially illegal, or at best, forbidden fruit, because the populace more likely, the populace served by a special interest has become so acclimated, so comfortable, so addicted to a law's entitlements, we dare not make waves with suggestions of change, or even revisions, let alone wholesale repeal.
In our zeal, we pass laws that sound good at the time, forever ignoring their unintended consequences or, heaven forbid, societal changes that might actually make such legislation burdensome or even obsolete. Thus laws like Propositions 13 or 98 become sacred cows, petrifying lawmakers, calcifying ideologies, and making a state like California, as often is said, "ungovernable."
Of course, it's ungovernable. It is virtually impossible to pass a balanced budget. As much as 85 percent of it is allocated before lawmakers can even sit down to set fiscal priorities. You can't dig out of a deficit when your flexibility is limited to as little as 15 cents on the dollar.
The state is forced to make up for Proposition 13's lower property taxes with some of the nation's highest income and sales taxes, but you can't dig out with that volatile revenue stream when it rises and falls with economic cycles. When the economy goes south, tax revenue drops, and the state is crippled.
But that's what's delivered with constitutionally enshrined placation legislation laws that cater to powerful special interests, or that ride the tide of an emotional moment (think guns or 9/11), or mandates by ballot measure in California's far-too-easily-purchasable initiative process. We are trapped by a Gordian knot of our own making.
Curiously, for all this ungovernableness, California lawmakers are doing more, producing more, are busier than ever, enacting 876 laws in the past legislative session. Except the problem isn't that things don't get done, it's that what does get done fails to solve problems, and instead tends to create more problems.
We say, "These laws are terrible." It's not because they're too liberal or too conservative; it's because we're stuck with them forever. We're basically stuck with ours, or the Legislature's first attempts from decades ago. You can't govern effectively in 2013 with a 1978 law anymore than you can with an 1872 law.
But dare suggest modifications so old laws have pragmatic application in the 21st century and proponents marshal their significant forces to quell any potential sedition. Cowering lawmakers are left with busywork, passing laws that hardly matter, that hardly hold them accountable, and that leave voters with little to rely upon as a metric for the effectiveness of their representatives.
"The difficulty lies not in the new ideas," John Maynard Keynes observed, "but in escaping from the old ones."
What's needed here is a housecleaning. Not a reform but a remaking of California's government, with no cow too sacred. Everything should be on the table. Jefferson thought we should revisit the federal Constitution every generation, keeping what works and revising or repealing what doesn't.
Of course, such a suggestion is neither easy nor risk averse, practically assuring that it'll never happen. That 1872 "rape" law? A revision was passed in the state Assembly in 2011, but it died in the Senate Public Safety Committee. What does that tell you?