Legislating Morality

As noted here, I am belatedly watching Prohibition, a production of Ken Burns and Lynn Novick, which first aired on PBS in October. A main theme of the second episode is that “you can’t legislate morality.” Well, morality can be legislated — and is legislated — but enforcing it is another thing. And that is the real lesson of Prohibition in the United States, the “noble experiment” that lasted from 1920 to 1933.

When I say that morality can be legislated, I mean simply that a moral precept (e.g., “Thou shall not kill.”) can be memorialized in formal law, thus enabling the state to prosecute persons who violate the precept. Diligent prosecution reinforces the precept by punishing those who violate it and deterring would-be violators.

An important lesson of the “noble experiment” is that the ability of the state to prosecute violations of a formal law depends on the degree to which the law’s underlying moral precept is accepted among the population. Killing — when not done in the course of war or self-defense — is one thing; drinking alcohol is quite another. The one is an irrevocable harm; the other is not harmful, in itself, except possibly to the imbiber. (Yes, it is true that drinking was not banned, but the drastic reduction or cessation of drinking was the clear aim of the Eighteenth Amendment’s prohibition of “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes.”)

Even if a formal law is not squarely grounded in a moral precept, the law may be widely observed if (a) it is prosecuted rigorously and (b) the penalty for violating the law effectively deters the routine violation of it.

Take speeding, for example. Speeding does not, in itself, violate a moral precept. But speeding can be the proximate cause of a violation — the taking of a human life, for instance. This, in turn, can result in prosecution for vehicular homicide. There is, in other words, a moral distance between speeding and an actual wrong. Accordingly, the observance of speed limits usually depends on the likelihood of being caught and on the penalty attached to the particular instance of speeding. That is why most drivers observe the speed limit in a school zone, even before school has been dismissed and after students have left the scene. And that is why highway speed limits seem made to be broken. To put it another way, the “real law”  for school-zone speed limits is not the same as the “real law” for highway speed limits. School-zone speed limits are usually obeyed because they are enforced more stringently than highway speed limits. Highway speed limits are not enforced stringently, and (except in speed-trap jurisdictions) are usually 10 miles an hour above posted limits. Given that,  and the less-stringent enforcement of highway speed limits (except around certain holidays), the result is widespread disobedience of posted speed limits on highways.

It seems to me that to most Americans outside the “Bible Belt” — and to not a few within it — Prohibition was not akin to the imposition of a speed limit but to a ban on driving.  Restrictions on speeding are understandable (if not always observed) because an automobile is a lethal weapon, but think of the hue and cry if driving were banned. And yet, the intent of Prohibition was to ban the use of a product that is inherently less dangerous than an automobile. Alcohol is a lethal weapon only when it is wielded by an alcoholic — and then it is a means of committing suicide, not murder. In most instances, and for most persons, the consumption of alcohol does not lead directly or indirectly to the violation of moral precepts. (Laws against drinking under a certain age reflect the norms that most adults would impose on their own children and are therefore generally acceptable.)

In sum, Prohibition did legislate morality, but it was the morality of a politically effective minority of Americans. Because of that, the legislation could not be enforced effectively because its moral premise was not widely accepted. In fact, it was widely ridiculed and resisted, even by many of the persons who were sworn to enforce it. And a lot of them had no compunction about breaking the law and actively helping law-breakers, often for a price.

Prohibition is a leading example of the collusion of “bootleggers and Baptists.” This is a term coined by Bruce Yandle in “Bootleggers and Baptists–The Education of a Regulatory Economist,” which appeared 29 years ago in Cato Institute’s Regulation (Volume 7, Number 3). As Yandle explains in the article,

the pages of history are full of episodes best explained by a theory of regulation I call “bootleggers and Baptists.” Bootleggers, you will remember, support Sunday closing laws that shut down all the local bars and liquor stores. Baptists support the same laws and lobby vigorously for them. Both parties gain, while the regulators are content because the law is easy to administer. Of course, this theory is not new. In a democratic society, economic forces will always play through the political mechanism in ways determined by the voting mechanism employed. Politicians need resources in order to get elected. Selected members of the public can gain resources through the political process, and highly organized groups can do that quite handily. The most successful ventures of this sort occur where there is an overarching public concern to be addressed (like the problem of alcohol) whose “solution” allows resources to be distributed from the public purse to particular groups or from one group to another (as from bartenders to bootleggers).

In the case of Prohibition, the regulation of alcohol proved difficult to administer because the amount of money at stake fostered criminal activity and corruption.

Like most regulations — which are meant to proscribe specific activities without regard for ancillary effects — Prohibition had costly, unintended consequences. The unintended consequences of Prohibition were greater violence and widespread disrespect for the forces of “law and order,” which were either corrupt, ineffective at maintaining the peace, or dedicated to the enforcement of a morally baseless regimen.

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