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Too Far, or Not Far Enough?

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In his October 22, 2020, column in the New York Times, titled “When Libertarianism Goes Bad,” establishment economist Paul Krugman bemoaned the “libertarian rhetoric” he was hearing from Republican politicians while they questioned the usefulness of wearing face masks during the “pandemic.” This rhetoric he described as “a lot of talk about ‘freedom’ and ‘personal responsibility.’”

But in addition to blaming “President Donald Trump and many of his Republican allies” for downplaying “the severity of the pandemic,” Krugman said: “But I also blame Ayn Rand — or, more generally, libertarianism gone bad, a misunderstanding of what freedom is all about. Many things should be matters of individual choice. The government has no business dictating your cultural tastes, your faith or what you decide to do with other consenting adults. But refusing to wear a face covering during a pandemic, or insisting on mingling indoors with large groups, isn’t like following the church of your choice. It’s more like dumping raw sewage into a reservoir that supplies other people’s drinking water.”

Libertarianism

Krugman’s reference to “libertarianism gone bad” is interesting, and for two reasons, the second one obvious, but the first one not so much. First of all, Krugman is a liberal, a supporter of the Green New Deal, and, by his own admission, “an unabashed defender of the welfare state,” which he regards “as the most decent social arrangement yet devised.” Accordingly, he is opposed to libertarianism whether gone bad or not. He is not implying in the least that he is amenable to libertarianism that has not “gone bad.” And second, is it possible for libertarianism to go bad? Can libertarianism be carried to extremes? Is it possible to take libertarianism over some threshold? Can libertarianism put too much emphasis on liberty? I think not.

Libertarianism holds that people should be free to live their lives any way they desire, pursue their own happiness, accumulate wealth for themselves and their descendants, assess their own risks, make their own choices, participate in any economic activity for their profit, engage in commerce with anyone who is willing to reciprocate, and spend the fruits of their labor as they see fit — as long as their conduct is peaceful, their interactions are consensual, and their actions don’t violate the personal or property rights of others.

As H. L. Mencken (1880–1956) put it, “Let people do whatever they please, so long as they do not invade the right and freedom of other persons to do the same.” And as explained by political philosopher John Stuart Mill (1806–1873): “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual.”

Libertarianism is libertarianism. There is no such thing as bad or extreme or excessive libertarianism. There are deviations from libertarianism, and there are inconsistent libertarians, but these digressions and inconsistencies usually result in less or softer libertarianism, not more or harsher libertarianism. There are also many misconceptions of libertarianism, even among libertarians.

People who are not libertarians (liberals, conservatives, progressives, moderates, centrists, democratic socialists, constitutionalists, culture warriors, MAGA populists, neoconservatives) hold many misconceptions about libertarianism.

Libertarians are thought to be naïve, utopian, eccentric, hedonistic, idealistic, selfish, greedy, materialistic, or nihilistic. Libertarians are said to be too idealistic and individualistic. Libertarians are accused of disdaining culture and tradition, and having no respect for authority. Libertarians are considered to be inimical to organized religion, traditional values, and the Judeo-Christian ethic, while being ignorant of human nature and having no ethical principles or moral absolutes. Libertarians are alleged to be contemptuous of the poor, indifferent to income inequality, and uninterested in social justice.

Some confused libertarians give liberals and conservatives the false impression that libertarianism is a social attitude or lifestyle. These libertarians imply that libertarians should live an alternative lifestyle, support abortion, embrace feminism, be socially liberal, accept same-sex marriage, seek social justice, celebrate diversity, reject organized religion, and never discriminate.

By far, the main thing that people criticize libertarianism for is the issue of vice: gambling, prostitution, drug abuse, alcohol abuse, pornography, and other forms of morally questionable or potentially self-destructive behavior.

Too far

Writing in a recent issue of The Atlantic, physician Matthew Loftus makes the case that “America has gone too far in legalizing vice.” Although “it’s not the government’s primary job to protect people from their own worst impulses, nor is the state the primary source of our virtue formation,” because people often inexplicably engage in self-destructive habits, the government “should make it as difficult as possible to access things that impair our ability to make good decisions.” So, “just as highways have guardrails for the moments when a driver isn’t exercising perfect self-control, so we also need guardrails to help people from driving off cliffs of vice.”

Loftus focuses specifically on gambling and marijuana use:

State laws tend to allow the gambling industry to regulate itself, which means that these companies are expected to identify and exclude their steadiest customers. This has been as unsuccessful as one might expect; as much as 50 percent of revenue comes from “problem gamblers,” while one study showed that in 1998, only 4 percent of gambling revenue from video lottery games came from “responsible” gamers. Just as tobacco companies would go out of business if people used their products responsibly, gambling wouldn’t be a multibillion-dollar industry if it weren’t for addicts.

Marijuana has a more complicated legacy, especially because it has real (but rather modest) benefits for medicinal use. However, careful analyses show that marijuana legalization has contributed to a rise in opioid-related deaths, especially when dispensaries can legally sell all sorts of cannabis products. Permitting dispensaries also increases referrals for addiction treatment, which is unsurprising considering that higher-potency products are more dangerous. The best evidence we have suggests that marijuana is harmful to teenage brains as they develop and that more teenagers use marijuana when it is legalized in their state.

Loftus dismisses the argument that “responsible, independent adults” should be “able to make decisions for themselves about how they spend their money or use their body” as “idealistic.” It “seems appealing, and there certainly are well-informed adults who gamble and use marijuana judiciously,” but “focusing on these ideal cases and basing our laws on them disregards millions of people who suffer because of their addictions — and it obscures the underhanded tactics of companies who make money off the misery of addicts.”

Regulations regarding gambling and marijuana should be designed “to protect the most vulnerable people — especially young people — while still allowing those who want to lose some money to do so with a little extra effort and permitting those who could benefit from marijuana to do so under the supervision of a physician.”

Loftus anticipates that his opponents will bring up the failed experiment of Prohibition. He maintains that “domestic violence and alcohol-related illnesses were at record highs prior to the passage of the Eighteenth Amendment, and Prohibition was effective at reducing both.”

This benefit is no doubt true, but at what cost? Prohibition eroded the Fourth Amendment’s protection against unreasonable searches and seizures, it increased injuries and death from tainted black-market alcohol, it fostered smuggling, stealing, and violence by organized crime, and it resulted in the corruption of not only politicians and law enforcement personnel but also physicians, who were authorized by the U.S. Treasury Department to write prescriptions for “medicinal liquor” to stave off a variety of physical and mental ailments.

Loftus concludes: “Some judicious restrictions are better for everyone: Gambling should take place in casinos, not on smartphones, and marijuana should be used only under a health-care provider’s supervision. We will need a lot more than a few regulations to help one another grow in virtue — but right now vice and its lobbyists have an unfair advantage that needs to be taken away.”

Not far enough

Writing in “Vices Are Not Crimes: A Vindication of Moral Liberty” (1875), the classical-liberal political philosopher and radical legal theorist Lysander Spooner (1808–1887) makes the case that America has not gone far enough in legalizing vice. This classic essay, which the great libertarian economist and theorist Murray Rothbard (1926–1995) termed “a great bulwark against the State’s eternal invasion of rights,” was first published anonymously in a collection of essays against the prohibition of alcohol called Prohibition a Failure: or, The True Solution of the Temperance Question, edited by physician Dio Lewis (1823–1886), a believer in temperance by persuasion, not by government prohibition. Lewis introduced Spooner’s essay as follows:

In this argument, the distinction between vice and crime is fundamental. It is important that this distinction should be stated tersely, and in the technicalities and formulas of the lawyer.

I have, therefore, requested a legal friend to do it for me. And he has kindly contributed the following essay, which seems to me to cover the whole ground, and to show the correctness of the principle in all its applications. It seems to me to be not only a clearly legal statement of the question, but also a truly philosophical view of a man’s relations to government, and to his fellow-men; and to show that on no other principle can there be any such thing as personal liberty, or rights of property, except such as mere arbitrary power may see fit to concede.

The most well-known and oft-quoted part of Spooner’s essay is the first of its 22 sections:

Vices are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.

Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property, and the corresponding and coequal rights of another man to the control of his own person and property.

For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth.

But Spooner had many more profound things to say about the topic:

It is not often possible to say of those acts that are called vices, that they really are vices, except in degree. That is, it is difficult to say of any actions, or courses of action, that are called vices, that they really would have been vices, if they had stopped short of a certain point. The question of virtue or vice, therefore, in all such cases, is a question of quantity and degree, and not of the intrinsic character of any single act, by itself. This fact adds to the difficulty, not to say the impossibility, of any one’s — except each individual for himself — drawing any accurate line, or anything like any accurate line, between virtue and vice; that is, of telling where virtue ends, and vice begins. And this is another reason why this whole question of virtue and vice should be left for each person to settle for himself.

Crimes are few, and easily distinguished from all other acts; and mankind are generally agreed as to what acts are crimes. Whereas vices are innumerable; and no two persons are agreed, except in comparatively few cases, as to what are vices. Furthermore, everybody wishes to be protected, in his person and property, against the aggressions of other men. But nobody wishes to be protected, either in his person or property, against himself; because it is contrary to the fundamental laws of human nature itself, that any one should wish to harm himself. He only wishes to promote his own happiness, and to be his own judge as to what will promote, and does promote, his own happiness.

The object aimed at in the punishment of crimes is to secure, to each and every man alike, the fullest liberty he possibly can have — consistently with the equal rights of others — to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property. On the other hand, the object aimed at in the punishment of vices, is to deprive every man of his natural right and liberty to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property.

It comes as no surprise, then, to see what Spooner said about the folly of government attempts to criminalize vice:

It is now obvious, from the reasons already given, that government would be utterly impracticable, if it were to take cognizance of vices, and punish them as crimes. Every human being has his or her vices. Nearly all men have a great many. And they are of all kinds; physiological, mental, emotional; religious, social, commercial, industrial, economical, etc., etc. If government is to take cognizance of any of these vices, and punish them as crimes, then, to be consistent, it must take cognizance of all, and punish all impartially. The consequence would be, that everybody would be in prison for his or her vices. There would be no one left outside to lock the doors upon those within.

A government that shall punish all vices impartially is so obviously an impossibility, that nobody was ever found, or ever will be found, foolish enough to propose it. The most that any one proposes is, that government shall punish some one, or at most a few, of what he esteems the grossest of them. But this discrimination is an utterly absurd, illogical, and tyrannical one. What right has any body of men to say, “The vices of other men we will punish; but our own vices nobody shall punish? We will restrain other men from seeking their own happiness, according to their own notions of it; but nobody shall restrain us from seeking our own happiness, according to our own notions of it? We will restrain other men from acquiring any experimental knowledge of what is conducive or necessary to their own happiness; but nobody shall restrain us from acquiring an experimental knowledge of what is conducive or necessary to our own happiness?”

Conclusion

So, is Loftus correct that America has gone too far in legalizing vice, or is Spooner correct that America has not gone far enough in legalizing vice? Is it too far, or not far enough?

Should gambling only take place in casinos? Should marijuana only be used under a health-care provider’s supervision? Should the government enact laws to help people grow in virtue? Should the government prevent people from engaging in self-destructive habits? Should the government make it difficult for people to access things that impair their ability to make good decisions? Should companies be prohibited from making money off people’s addictions? Should the government regulate gambling and marijuana to protect vulnerable people? Should the government impose restrictions on a majority because of the failings of a minority? Should the government punish the many for the “good” of the few? Those who believe in paternalism and a nanny state would answer in the affirmative.

Should the government never penalize or punish individuals for engaging in private, consensual, voluntary, harmless, peaceful activity that does not aggress against the person or property of others? Should vices, bad habits, immoral actions, poor judgment, risky behavior, unhealthy living, dangerous activities, sin, self harm, addictive conduct, and financial irresponsibility never be considered crimes? Should responsible, independent adults be able to make decisions for themselves about how they spend their money or use their body? Should every crime have to have a tangible and identifiable victim who has suffered measurable harm to his person or measurable damages to his property? Should the government just leave people alone whose actions are peaceful, associations are voluntary, and interactions are consensual as long as they don’t violate the personal or property rights of others? Those who believe in liberty and a free society would answer in the affirmative.

Too far, or not far enough? I think the conclusion is obvious.

This article was originally published in the July 2023 edition of Future of Freedom.

The post Too Far, or Not Far Enough? appeared first on The Future of Freedom Foundation.


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