Monday, January 21, 2013

In Loco Parentis

When I write that I want to see an end to not just drug laws, but prescription requirements as well, in fact that I would like to see an end to all laws regulating any sort of voluntary commerce, I usually get a host of criticisms. I obviously cannot address all of them, but I do have some thoughts thought I wanted to put out there.

One of the most common complaints is that if we ended, say, age regulations on alcohol sales, or allowed all drugs of any sort to be sold over the counter, then children would turn into alcoholic junkie degenerates in huge numbers. (I am tempted to say "so what would change?" but that sounds a bit cynical, and definitely marks me as someone on the verge of becoming a cranky old man.) However, there are two arguments against this conclusion which I think are worth considering.

First, prior to Prohibition, in many states there were no regulations about alcohol sales. There were dry counties and some states that had strong temperance movements had other regulations, but, for the most part, they did not touch upon age, but rather on limiting the hours and days of saloon operations, the strength and type of drinks and the like. There was just not much in the way of modern "carding". nor would it have worked anyway, as identification in the era before 1920 was minimal at best. Driver's licenses were far in the future, libraries were not common, and rarely listed age on any sort of cards anyway, and most people didn't carry around birth certificates (if they had a copy at all), so it would have been pointless to ask someone to prove his age.

And yet, there was not a tremendous outbreak of toddler tosspots. So, how was this done? Some would suggest it was a "different time", the dodge used whenever a historical example disproves a modern orthodoxy, but the truth is it wasn't. Excepting for the automobile, cities of the turn of the century were as urban and impersonal as they are today. Slums were slums, migrants were migrants, there was crime and filth and poverty and overcrowding worse than today. So, it was hardly some agrarian small town society which does not compare to today. Of course things were different in some ways, but not so different that one would find it an environment conducive to abstinence from alcohol. (If anything, alcohol consumption in modern times represents the end point of a downward trend from colonial times. Reading the consumption figures for the mid to late 18th century would give modern readers fits. And the 19th and early 20th centuries, though not rising to colonial highs of imbibing were hardly filled with tea totallers.So, again, it is not as if "the times" offer an easy explanation.)

No, one thing that did exist in the 19th and early 20th century was a principle now long lost, that is the right of a store owner to refuse service. Oh, we still claim to have it, we have signs saying that stores reserve the right to deny service and the like. But thanks largely to the civil rights movements of the 50s and 60s1, the ideal that store owners have an absolute right to refuse service is long gone, and in our litigious age that means a lot. So, where a shop keeper in the teens might have put out beer, and then told a teen who wanted to buy it "aren't you a little young? Beat it!" a shopkeeper today would worry that doing so would bring down the wrath of the local ambulance chaser. And, absurd as it sounds, some "children's rights" theories even support such ludicrous outcomes. Of course, in many places, in many shops, owners do just that anyway, but in general, the trend in our society is toward a requirement of absolutely equal treatment, meaning, unless a law restricts the access of the young, no one else can do so. And thus, today does differ from the past in one significant way2.

However, there is a second factor, one which exists today, as it did in the 19th and early 20th centuries, and one which is a very strong force, but a force we often forget.

So, for all those who ask how I will keep children from buying drugs or alcohol, I would ask who kept their children from having promiscuous sex? After all, all teens have access to sexual partners, they are alone at some point in time with members of the opposite sex, who stops them? Or who stopped them from violently attacking anyone with whom they disagreed? Or from consuming poisons? Or just eating food they shouldn't?


I know, conservatives love to talk about making parents responsible for their children, and how the left wants the state to take over these responsibilities, but oddly, when I mention ending regulation of alcohol or drugs, they forget all about the role of parents and want the state to do it, just as the left does in other matters. It would be shocking were it not so common. It seems when it comes to one's pet peeve, to one's favorite cause, all of one's normal understanding of matters goes out the window, and arguments that one would reject out of hand on other issues become compelling in just this one instance.

Of course, I admit parents are not a perfect protection. Neither is the good judgment of store owners. But then again, neither is the state and its laws. Before we reject my answer because bad parents might not stop their kids, recall bad parents also buy their kids booze today, so neither is a perfect solution3. Similarly, shop keepers may be willing to sell to kids if there is no law, but today there are shop keepers selling to kids despite the law. Granted, today they can lose their license for doing so, but in a free market, angry parents can refuse to patronize them and have the same effect. Neither is perfect, but then again nothing is. What we need to discuss is what the effects of a law might be and whether or not it is more beneficial than harmful.

I did not intend to make this a debate about my arguments for ending prescription requirements, or restrictions on the sale of alcohol, but I suppose, to wrap up what I wrote above, I must offer at least a brief synopsis. So, controversial as they are, allow me to explain.

The prescription laws are easier to explain than the alcohol restrictions, mostly because they are far more extensive. Prescription laws quite clearly limit access, granting quasi-governmental power to doctors who allow or disallow access, and creating cartels of approved manufacturers, as well as government gate keepers who allow or disallow drugs entirely. It is relatively easy to see how this would result in raising prices, keeping useful drugs off the market, limiting choice, granting doctors power over their patients, requiring doctor visits for no purpose other than prescriptions imposing needless costs, and even introducing corrupt practices in the persuasion of doctors to favor certain labels, for drug companies to extend patents and the like. Not that all this takes place regularly, but the system favors these practices, and, even with honest practitioners, the cartel situation imposes needless added costs, as well as limiting access to medication4.

For all of these costs and potential costs, what is the benefit? I will leave out of the question narcotics and other drugs that are part of the war on drugs, as that is clearly even more contentious, and look only at things like antibiotics and decongestants. The argument goes that (1) patients would take drugs they don't need, (2) patients wouldn't see doctors when they should, (3) patients might overuse drugs and make them less effective and (4) patients might suffer adverse reactions. But all are nonsensical arguments, or, in one case, self serving.

First, patients might take drugs they don't need, but in truth, doctors do not prescribe perfectly either. From first hand experience, not only do they try solutions, just as anyone would, but they can overlook issues and even prescribe medications contraindicated for the patient's condition5. Of course doctors are likely to diagnose with more precision, to avoid the more unlikely diagnoses and to figure out the correct medicine more quickly,  (perhaps not in every case, but in the majority), but if patients are willing to accept a longer process, and more false starts, then why deny them that choice? If the patient is the only one who will suffer, and he accepts the consequences, then who is harmed?

Second, is the most self serving argument, that patients would not see doctors when they need to but for prescription requirements. I first heard this as a justification for keeping birth control pills prescription only (an argument that it obviously did not manage to support), and thought of how self serving it is. Of course, doctors may mean well, but it also has a terribly mercenary sound, requiring patients to come in to get their pills also helps to line doctors' pockets. But, mercenary or noble, the argument is still contrary to our own beliefs. Think of it this way, most people would probably benefit from professional advice on diet, we all eat somewhat unbalanced diets. So, should we refuse to let you buy food unless you have the permission of a dietician? Should we require your car be checked by a mechanic every 3 months or deny you the right to drive? If not, then the doctor argument should not hold water either.

Third, while sounding like a sensible concern, I would remind everyone that the incredible overuse of antibiotics and subsequent birth of resistant strains of bacteria came long after prescription laws were a nationwide phenomenon, meaning it was doctors (and to a degree farmers6) and not patients who overused those medicines. So, while patients might overuse a drug, it is not as if it could not happen with full prescription laws. Thus, it seems in this case prescription laws had no effect.

Finally, there is the issue of negative reactions. This sounds sensible at first, as doctors seem like the best people to anticipate bad reactions, but, having been given well over fifty different medications while being diagnosed for an unknown condition over six years, I can attest, not once did a doctor perform any test to see if I would react to a given medication, nor ask about likely contraindications, such as a history of high blood pressure, ulcers or anything else. Of course, some doctors may be more conscientious and ask, but how does that differ from putting a warning on the medicine? It is not as if doctors are performing extensive tests for compatibility, or administering the medicine in office and watching the reaction. They prescribe and send patients out into the world. So any side effects, whether for self-prescribed or doctor prescribed, will hit out of the blue and be handled by an emergency department. So how does maintaining prescription laws change this?

I could go on, but that was much more than I ever intended. Instead, let me touch the more contention part, liquor regulations, and then wrap this up.

The problem with liquor regulations is not as clear cut as that for prescriptions. It does not create a cartel of sellers, it limits access only in a single, and socially approved way, and generally seems a harmless regulation. And, were laws simply isolated points without any more influence, it would be. In fact, were laws nothing but beads strung together on a wire, independent entities without connection or influence on one another, then many of my arguments would be pointless. But laws are not independent, even when they are explicitly written so, with "line drawing" and protections against "slippery slopes" and the like, they still cast shadows, and the human mind, insisting on finding patterns, seeing consistency, and looking for reasons, cannot help but carry forward the logic embodied in a law. Which is why I continually argue against the use of government for anything other than its very limited purpose of protecting us against force, theft and fraud.

Seeing this law, and reasoning that it is proper for us to prevent children from buying alcohol for their own good, and perhaps to protect society from the harm drunken children might do, many will come to the conclusion that laws are justified if they can be shown to prevent a harm, or protect someone from his own bad decisions. At first, it will probably be used to make small, similar laws. Say, preventing those with a history of mental illness from buying guns, or limiting the sale of poisons to those licensed in their proper use. However, those laws will cast their own shadows. If it is ok to prevent the mentally ill from buying guns, and children from buying alcohol, why not keep felons from buying guns? And if that is good, why not require a license to own a gun, so we can tell who has one, and remove it if he commits a crime, or otherwise becomes ineligible?7 And then it goes on, and on8. From one single law, it takes very little imagination seeing the logic used to justify change after change. Of course, many who support it will argue that will not happen. this is just a common sense law, and it will not justify all that think it will9. But history shows otherwise. The commerce clause, the general welfare clause, Griswold growing into Roe and into many modern laws, Munn v Illinois growing into the massive bureaucracy of today? All of these seemed impossible to proponents of the original step, and yet they happened. Sadly, once the logic is established, it will eventually run its course. It is simply human nature.

And that, in a very sizable nutshell, is my problem with alcohol regulations. As with so many laws against which I argue, the goal is not in itself objectionable, but if we allow the law to stand, we risk having it used to justify many measures which would be harmful. Were there no other solution, or were the risk of harm sufficiently grave, then perhaps I would argue that we need to accept the risk, but in this case, as I have argued above, the law itself is not much superior to what came before, and thus I see not real need to offer a justification for limitless government to achieve these goals10.

Before I go, I suppose I should offer a few caveats here. First, I am not suggesting that eliminating these laws is an urgent matter, or even would appear high on my agenda, were I to be given total control over the state. I mention it here simply because it struck me as interesting that we seem to have forgotten in so many contexts the role parents play, and have, in many ways, even on the right, become so used to turning to the state to resolve every one of life's problems. Second, even were the world to move toward a smaller, less invasive government, as I wrote in "Reforms, Ideal and Real", I favor doing so through a federal system, with power kept as local as possible, and thus I imagine such laws would be handled on a state or even county basis. As the idea of less and less state interference spread, some may eliminate these laws to keep consistent with their beliefs, but I am sure many would not. So, I have no intention of fighting to end these laws, the alcohol ones even less than the prescription ones (which I have a remote hope of seeing ended if I live another century or so). However, I write not just about the practical and achievable, but also about the ideal and so I must mention these things if I am to be honest, and so I wrote this essay. I hardly expect broad support, and I have no intention for it to become a rallying cry for ending ID checks, I simply wanted to point out some other issues which it helped to illustrate quite well.

1. I have often argued that the civil rights movement pursued a worthy goal in precisely the wrong way. I know for many it would not have been half as satisfying to eliminate government approved discrimination while allowing private stores and shops and restaurants to discriminate as they wished, but that would have been a solution consistent with individual rights. Much as we might deplore a belief, an individual has the right not just to hold that belief, but also to act upon it so long as he does not deprive another of life, liberty or property. By restricting this right we took steps toward destroying all effective freedom of association, as well as property rights as a whole. (See "In Defense of Discrimination", "A Statute of Limitations for Race", "How to Handle Idiots", "Back Again", "Best of the Web gets It Very, Very Wrong", "Private Versus Public Racism", "The Costs of Understanding", "Musings on Discrimination" and  "The Danger Inherent in Banning "Bad Ideas"".)

2. Obviously, if I were to envision my perfect government, my perfect state, this would not be the case, and so the elimination of the laws mentioned at the beginning would not be affected by this societal trend.

3. Oddly, it seems only free market, minimal government solutions are rejected for not being perfect, state solutions which fail to achieve perfection just need more money or power, or else just must be accepted despite their imperfections. It is a strange inversion, doing nothing requiring justification, while acting being assumed as the natural state. But then again, with a large government, and a public prone to ask the government to solve all problems, I suppose it is understandable. See "Action and Inaction", "Doing Something", ""Doing Something" Revisited",  "Doing Something Revisited, Again", "How Conservatives Defeat Themselves", "The Single Greatest Weakness",  "What We Deserve", "Who Is To Blame?", "Don't Blame the Politicians", "You Lose When You Think You Win", "Tyranny Without Tyrants", "Volunteer Fireman, Barn Raisings and Government",  ""...Then Who Would Do it?" ", "Collective Action and Government" and "Why Must The Government Do It? Part I", as well as "Rewarding Failure", "Third Best Economy", The Secret of Success, or, Why Government Fails", "How to Blame the Free Market, Part II" and "Government Quackery".

4. I covered much of this in "Medical Regulations", "Medical Regulation II" and "Gun Control, The FDA and Regulating the Law Abiding", among others.

5. I can swear that even after I was diagnosed with intermittent porphyria, I was twice prescribed medicines known to be trigger attacks of porphyria, resulting in intense pain, nausea, nerve damage and a host of other symptoms.  I do not mention this to malign doctors, simply to point out, that when they mention that patients may make mistakes, they too are capable of error.

6. Farmers because of their use of antibiotics on farm animals and the risk of some diseases mutating and moving between species. It is not as common as human to human transmission, and so the blame for the doctors is FAR greater, but as farmers are so often given a strangely elevated status ("The World's Oldest Myth", "Bad Economics Part 6", "Brief Thought on Voter Qualifications") I thought I would mention them in passing.

7. I use gun control as it is a cause most conservatives oppose, and so it makes a good, non-controversial example.  The same logic could be applied to protective tariffs, drug laws, price controls, safety laws, welfare, tax laws and anything at all. It is amazing how far a single example can reach. (Or perhaps not, given how much of our government perches atop the slender support of the commerce clause.)

8. See "Slippery Slopes", "With Good Intentions", "In The Most Favorable Light", "Inescapable Logic", "Recipe For Disaster", "The Endless Cycle of Intervention",  "The Cycle of Compassion" and "Grow or Die, The Inevitable Expansion of Everything" and "Inspections, Regulations and Bans".

9. See "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking", "Impractical Pragmatists", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "No Dividing Line", "The Consequences of Bad Laws" and "Questions of Law and Questions of Fact".

10. I suppose I should add that I do not favor teenaged drinking, and that I think, in general, recreational drug use is a bad idea (though I probably find it less horrifying than most conservatives). I feel I must say this, as every time I suggest the government is the wrong tool to solve a problem people seem to assume I favor the problem that was supposedly being solved. So, I must explain that I am not in favor of this or that societal ill, I simply oppose the Swiss Army Knife/Panacea view of the state. As I have said before, if you tell me you are seeing your auto mechanic about your broken leg, and I suggest you go to a doctor instead, it does not mean I support broken legs (or oppose auto mechanics), simply that I think a different tool is proper for the problem. Similarly, if I think prostitution is not a question for government ("Tools", "Hard Cases Make Bad Law", "The Sexual Revolution and Prostitution", "Missionary Zeal and Human Discord", "Caution, Not Fear", "Three Types of Supporters of Big Government", "More Examples From Another Field", "The Difficulty of Principle") it does not mean I support prostitution, or oppose government, just that I believe social means are the appropriate solution, not forceful coercion.



Writing this post, I realized I have definitely written more "libertarian" essays recently than I have in quite some time, and I seem more than that to have focused on issues where it is likely popular opinion, or at least much of conservative opinion, would be against me. I am not really sure why that is, but I definitely can see the pattern in retrospect. (Even more so when I include a handful of incomplete additional posts I did not publish.) I suppose in part it is because I have often avoided such topics, or at least treated them gingerly, so as to avoid needless conflicts that would distract from other topics about which I was more interested. Since I had neglected them so often, I built up quite a backlog of topics and I suppose it was inevitable they would eventually burst free.

Of course, there is nothing wrong with these essays, at least as far as I am concerned. While some may not be well received, neither are my arguments for absolutely unregulated banking, the gold standard, privatized roads, eliminating government from marriage, voluntary taxation or the elimination of all government safety regulations, yet I write on those topics (except the roads, that one gets stifled pretty regularly as well) fairly frequently. My conclusions on these topics, as should be clear from reading them, are completely consistent with my other beliefs. The basis on which I argue against gun control, against welfare, for a strong national defense and all the rest is the same basis upon which these arguments rest. They are an integral part of my beliefs. And that is why I have to address them sometime. Much as they may be controversial, and may conflict with many conservative beliefs, they are still topics which I must discuss and explain.

However, having now given them their head, having allowed them to run free, I think I am done with these topics for a while and will rein them in and pen them up once more. Drugs and alcohol and prostitution and pornography and the rest will go back into the darker recesses of my blog, mentioned only in passing, at least for a while. I am sure they will break free again some day, but for now I intend to go back to boring but acceptable topics such as money and commerce and foreign affairs and the rest.

Thanks for bearing with me while I explored the less generally accepted elements of my theories of government.

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