Legislating Morality (II)

Donald Boudreaux is co-proprietor of Cafe Hayek. I agree with him on almost everything (defense being the notable exception), but I can’t swallow this:

Too bad that too few people realize – as does the Rev. Robertson today [regarding marijuana], and as did Mr. Rockefeller 80 years ago [regarding alcohol] – that government cannot prohibit private behaviors without unleashing consequences far worse than those of the prohibited behaviors themselves.

That’s a too-sweeping statement. Does the “prohibition” of theft and murder unleash consequences “far worse than those of the prohibited behaviors”? I don’t think so.

On the contrary, the “prohibition” by statute and ordinance of direct harms to life, liberty, and property enables the state to perform one of its two legitimate functions, which is to punish those harms and thereby deter their commission (at least partially). (The other legitimate function is to defend us from foreign predators.)

Where is the line between legitimate and illegitimate state action properly drawn? That’s a tough question. My general answer is that the state should be authorized to act in defense of long-standing social norms. Those norms used to encompass the last six of the Ten Commandments, which “prohibit” certain interpersonal transgressions: murder, adultery, theft, libel and slander, and covetousness. But under the dispensation of the “liberal” state, murder is not punished timely or adequately, adultery is encouraged (and marriages and families broken) by no-fault divorce laws, libel and slander are commonplace, and “social justice” is covetousness rampant.

I would say that “prohibition” has a rightful place in the maintenance of civil society.

Related posts:
The Principles of Actionable Harm
Line-Drawing and Liberty
Myopic Moaning about the War on Drugs
Saving the Innocent
Facets of Liberty
Crimes against Humanity
Abortion and Logic
Why Stop at the Death Penalty?
The Myth That Same-Sex “Marriage” Causes No Harm
Lock ‘Em Up
Legislating Morality

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.

Prohibition, Abortion, and “Progressivism”

I am belatedly watching Prohibition, a production of Ken Burns and Lynn Novick, which first aired on PBS in October. The program, in typical Burns style, delivers history in easy-to-swallow doses. I have seen only one of the three episodes, but that episode whets my appetite for the others because it added much to my sketchy knowledge of the events that led to the passage of the Eighteenth Amendment.

There is a libertarian slant to Prohibition, though perhaps not a deliberate one. For all that Prohibition says about the evils of “demon rum,” it says more about the evils and unintended consequences of governmental efforts to dictate private behavior. One of the talking heads points out that prohibition was as much a brainchild of “progressives” as it was of religious fundamentalists.

Although eugenics is not mentioned in Prohibition, it looms in the background. For eugenics — like prohibition of alcohol and, later, the near-prohibition of smoking — is symptomatic of the “progressive” mentality. That mentality is paternalistic, through and through. And “progressive” paternalism finds its way into the daily lives of Americans through the regulation of products and services — for our own good, of course. If you can think of a product or service that you use (or would like to use) that is not shaped by paternalistic regulation or taxes levied with regulatory intent, you must live in a cave.

However, the passing acknowledgement of “progressivism” as a force for the prohibition of alcohol is outweighed by the attention given to the role of “evangelicals” in the enactment of prohibition. I take this as a subtle swipe at anti-abortion stance of fundamentalist Protestants and adherents of the “traditional” strands of Catholicism and Judaism. Here is the “logic” of this implied attack on pro-lifers: Governmental interference in a personal choice is wrong with respect to the consumption of alcohol and similarly wrong with respect to abortion.

By that “logic,” it is wrong for government to interfere in or prosecute robbery, assault, rape, murder and other overtly harmful acts, which — after all — are merely the consequences of personal choices made by their perpetrators. Not even a “progressive” would claim that robbery, assault, etc., should go unpunished, though he would quail at effective punishment.

Not that “progressivism” is a thing of logic. It is, as many commentators have noted, a shifting set of attitudes. A “progressive” (or “liberal” or leftist) is simply a person who adheres to the current set of attitudes — the “progressive” program du jour — which the “progressive” seeks to impose by force, for our own good. The essential character of “progressivism” is paternalism wedded to statism.

George Will puts it this way:


Obama, an unfettered executive wielding a swollen state, began and ended his [state of the union] address by celebrating the armed forces. They are not “consumed with personal ambition,” they “work together” and “focus on the mission at hand” and do not “obsess over their differences.” Americans should emulate troops “marching into battle,” who “rise or fall as one unit.”

Well. The armed services’ ethos, although noble, is not a template for civilian society, unless the aspiration is to extinguish politics. People marching in serried ranks, fused into a solid mass by the heat of martial ardor, proceeding in lock step, shoulder to shoulder, obedient to orders from a commanding officer — this is a recurring dream of progressives eager to dispense with tiresome persuasion and untidy dissension in a free, tumultuous society.

Progressive presidents use martial language as a way of encouraging Americans to confuse civilian politics with military exertions, thereby circumventing an impediment to progressive aspirations — the Constitution and the patience it demands. As a young professor, Woodrow Wilson had lamented that America’s political parties “are like armies without officers.” The most theoretically inclined of progressive politicians, Wilson was the first president to criticize America’s founding. This he did thoroughly, rejecting the Madisonian system of checks and balances — the separation of powers, a crucial component of limited government — because it makes a government that cannot be wielded efficiently by a strong executive.

Franklin Roosevelt agreed. He complained about “the three-horse team of the American system”: “If one horse lies down in the traces or plunges off in another direction, the field will not be plowed.” And progressive plowing takes precedence over constitutional equipoise among the three branches of government. Hence FDR’s attempt to break the Supreme Court to his will by enlarging it.

In his first inaugural address, FDR demanded “broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” He said Americans must “move as a trained and loyal army” with “a unity of duty hitherto evoked only in time of armed strife.” The next day, addressing the American Legion, Roosevelt said it was “a mistake to assume that the virtues of war differ essentially from the virtues of peace.” In such a time, dissent is disloyalty….

Obama, aspiring to command civilian life, has said that in reforming health care, he would have preferred an “elegant, academically approved” plan without “legislative fingerprints on it” but “unfortunately” he had to conduct “negotiations with a lot of different people.” His campaign mantra “We can’t wait!” expresses progressivism’s impatience with our constitutional system of concurrent majorities. To enact and execute federal laws under Madison’s institutional architecture requires three, and sometimes more, such majorities. There must be majorities in the House and Senate, each body having distinctive constituencies and electoral rhythms. The law must be affirmed by the president, who has a distinctive electoral base and election schedule. Supermajorities in both houses of Congress are required to override presidential vetoes. And a Supreme Court majority is required to sustain laws against constitutional challenges.

“We can’t wait!” exclaims Obama, who makes recess appointments when the Senate is not in recess, multiplies “czars” to further nullify the Senate’s constitutional prerogative to advise and consent, and creates agencies (e.g., Obamacare’s Independent Payment Advisory Board and Dodd-Frank’s Consumer Financial Protection Bureau) untethered from legislative accountability.

Like other progressive presidents fond of military metaphors, he rejects the patience of politics required by the Constitution he has sworn to uphold. (“Obama to the Nation: Onward Civilian Soldiers,” The Washington Post, January 27, 2011)

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Related posts:
Ten-Plus Commandments of Liberalism, er, Progressivism
The Pathology of Academic Leftism
Diagnosing the Left
Presidential Legacies
The Modern Presidency: A Tour of American History
An FDR Reader
Parsing Political Philosophy
Inventing “Liberalism”
Utilitarianism, “Liberalism,” and Omniscience
Fascism and the Future of America
Utilitarianism vs. Liberty
Selection Bias and the Road to Serfdom
Beware of Libertarian Paternalists
The Mind of a Paternalist
The State of the Union: 2010
The Shape of Things to Come
Accountants of the Soul
Rawls Meets Bentham
Is Liberty Possible?
The Left
The Left’s Agenda
The Left and Its Delusions
Save Me from Self-Appointed Saviors
In Defense of the 1%
A Nation of (Unconstitutional) Laws