NOTE: This essay is something of a followup to "The Free Market Solution", so those who have not read that post may want to do so.
Whenever I propose a libertarian change, say removing the criminal penalties for drugs or prostitution, returning government to it proper function of protecting us from force theft and fraud at home and abroad, there are inevitably tremendous objections, from both the left and right1. Though I point out repeatedly that the conservative and libertarian belief in a minimal government, with strictly delimited powers, created to protect rights to life, liberty and property, is inconsistent with such laws, that by pushing one's own morality on others, one creates a justification for any additional government intrusions, and that every expansion of government power beyond its proper functions lays the groundwork for future expansions, despite all of these arguments, inevitably those on the right will object that these are just "common sense" measures, that we can "draw a line", that there is no risk. And, despite my counterarguments, pointing to the absurd extension of the commerce clause until it is now being used to justify the Violence Against Women Act, to the extension of Griswold's right for married couples to buy contraceptives into an unlimited right to abortion, and to the way eminent domain has moved from a means to build military bases and dams to a tool for contractors to obtain land they want, despite all these demonstrations, I make very little headway2.
However, as with many difficult arguments, the case for undermining truly limited government is most often not couched in these more conceptual terms, but instead made in personal, emotional terms. Just as those opposing abortion are asked "How would you feel if your daughter had an abortion?" while their opposite number replies with "And how would you if your daughter were raped and pregnant?", the case against a minimal state is often argued by asking "Would you want your daughter to be a prostitute?" or "What if your son used drugs?" Arguments which, though they often provoke an offended silence, actually don't make much of a case. After all, we have laws against both today, and yet such things still happen. Or, to reverse the argument, at those times and places where such things were (or are) legal, the practices were still not universal, making the implicit assumption of the question, that, but for the law, everyone would succumb to the temptation of drugs or selling their body, a bit implausible.
Yet, that is not the best, or even a very effective, argument against such questions, or against the assumptions of those who see these "common sense" interventions as necessary. The best argument, the one we hear least often, is sadly overlooked, even by many libertarians, because our society has adopted a peculiar sort of blindness, an inability to see whole categories of solutions3. Not surprisingly, this blindness is largely the consequence of years of proselytizing by the government itself, as well as those who continue to advocate for granting it ever greater power. What is a bit surprising is how readily even those who say they wish to stand against the flow of history and shout "stop" also accept these premises, and fail to see that there are other answers. It goes without saying some of these conservatives will argue that they are quite consistent, such laws, and the morality underlying them, have an ancient provenance, but I would reply that, in truth, drug laws have been around for a century at most, and, though prostitution bans enjoy a much longer history, for the most part they were inspired by concerns of taxation rather than morality. And, regardless of how ancient the provenance of such intrusions, I would argue the answer I propose is older still, and, more important, is fully consistent with our shared belief in a limited government, interested solely in protecting our rights, that by adopting these laws, by embracing an activist, extended government, they are also implicitly embracing the liberal belief in government as panacea4.
The problem with their perspective, the implicit assumption they are overlooking, the idea which taints their answers and allows our government to continue growing year after year with the implicit support of even those conservatives who supposedly oppose government growth, is the belief that only government can solve social problems, that any problem involving more than one, maybe two people, perhaps a single family, must be solved by the state in some form. Obviously, no one admits as much, especially on the political right, but how to explain the dread with which conservatives greet suggestions to eliminate government run public education? Government owned highways? Even roads? The elimination of government managed fiat currency? If the group of people supposedly opposed to big government embrace such significant elements of the omnipotent state, if they accept so many primary beliefs of advocates of government intervention, then what hope do we have to ever reduce the size of government? When conservatives can't even bring themselves to say "end welfare", but only "end welfare as we know it", keeping the basic assumptions and just arguing about specifics, is there much hope at all?
Allow me to illustrate how easy it is to knock the legs out form under such an argument, as it will help to demonstrate what I mean by alternate solutions to such problems.
Let us look at some favorite counter-arguments. For example, when it is suggested that the airwaves should be treated as private property, with licenses no different from deeds to property, and eliminating any oversight by agencies such as the FCC, or requirements for "public service broadcasting" and the like, I often hear "So you want your children to see pornography on TV? Or hear people cursing 24 hours a day?" For the moment, let us ignore the simple reply that it is pretty negative view that assumes 100% of the public wants nothing but nudity, sex and cursing -- a position the diversity of cable programming, not to mention the movies released in theaters, disproves -- and grant this rather insulting assumption. Even if television were reduced to such a state, my son would not see it because I would tell him not to do so, and would monitor his actions. For that matter, I have cable television now which provides plenty of such fare, and yet my son does not see it. Why? Because I bother to raise him, rather than turning him over to the state, or rely upon child locks and channel blocks to do the rearing for me. Since when did conservatives become advocates of letting the state raise their offspring? Or argue parents should abdicate their responsibilities?
A similar response is obviously the correct reply to the other favorites, such as "What if your daughter became a prostitute?" or "What if your son used drugs?" Again, I find it unlikely such things would happen, as I bother to raise my child (and don't have a daughter, but for sake of argument, assume I do). Granted, no child rearing is perfect, and children do have free will, so the worst could happen, but that remains true even if these things are illegal. There is always the possibility of an unexpected bad outcome. My point here is not that child rearing results in perfection, but rather that trying to use the state to enforce our morality on individuals is no more effective, and much more dangerous, than much older, and more reliable, solutions, such as child rearing, social disapproval and the like. Granted, there are some individuals who will be willing to endure all manner of shunning and disapproval to indulge their urges, but the same people are often also willing to defy the law. Thus, we cannot base our decisions upon such outliers, but must look at the vast majority of mankind, and, as experience shows, the majority is terribly susceptible to pressure from their fellows, even without the threat of arrest.
For those who doubt this, think about one thing, one of the best indicators of whether or not someone will commit crime again is the way in which his peers view crime and criminality. Those who see crime as shameful, and arrest as a stigma will tend to avoid things which will cause them to be arrested again. Just read von Mises' Human Action and see where he discusses how increasing shame over being arrested has allowed many states to reduce jail terms with no increase in crime. Or ask yourself why the 1960s lionization of criminal outsiders, coupled with the spread of drug use -- leading to many having a default position of lacking respect for the law -- along with many minority groups coming to see jail, not as valid punishment, but as a political act, why all these things seem to coincide with the explosion of crime in our cities. Is it not possible that, rather than the threat of jail, much of the power arrest had to stop crime was based upon the public attitude which saw arrest and serving time in jail as shameful?
Or, if you doubt this argument, look at simple things around you. Why do we all wear pants, shoes, sock, shirts and so on? Why do so few wear, say, robes? Or forego socks? Why do the vast majority of people on stairs, or in shopping malls walk on the right, even without prodding5? Many, many simple behaviors are the result of nothing but the general assumption that everyone will behave in a similar way. And, that simple assumption is powerful enough that it controls the behavior of all, or almost all, of us. That is a much greater success rate than most laws have.
To which answer I am sure some will ask "Why not both then? If public pressure is so good, then why not couple it with government power and have the best of both worlds?" A plausible sounding argument, as are many that later prove wrong6, but in this case, the counterargument is fairly obvious, and I believe quite strong.
The problem as I see it is twofold. First, the issue already mentioned, that by implementing such laws, we tend to open the door to ever greater government intrusions. Second, that by adding government power to social pressure, we eliminate the "safety valve" inherent in social pressure alone, which has its own special risks.
I have discussed the first case often enough already that I will provide but a brief explanation. The moment we accept that the government can be used to prevent behaviors we find offensive, or to force individuals to do what we consider to be in their best interest, we provide a justification for any and every government intrusion into our lives. After all, if we allow "common sense" limits, who is to say others will not try to apply their "common sense" limits, which often might not be those with which we agree. After all, if something were truly "common sense", why would we need a law? The fact that we need to enacts laws suggests it is not a universal belief, and if one group can force its values on another, then what is to prevent others from imposing their beliefs as well?
The second argument is the more difficult to make, but the more significant. It may not work for many of the examples, but it is still important. As I pointed out with government regulation, there is simply no way in which one can live without ever making a mistake. The problem with government intrusion is that it makes deviating from such mistakes illegal. Societal pressure, though it may be uncomfortable, does allow one to deviate from the "rules" without facing arrest. Thus, if you truly believe you are right, enough that you are willing to face the consequences of public disapproval, you are free to do so, and that is a very important safety value, a precaution against institutionalizing error, which is not possible with government intrusion.
Doubtless I could make my case at much greater length, and have many times before. Still, I think I have made my case as well as I can, so let me just end my argument with a very brief summary. In short, while the law can be used to try to alter behavior, in cases where there is no threat to individual rights, the consequences of such intrusion, especially while equally effective alternatives exist, makes the use of government power the wrong answer.
1. To be fair, the left is mostly fine with legalizing drugs, excepting a few die hard health Nazis, and they are mixed on whether prostitution is a crime or not, with even feminists splitting on whether the proper position is to support sex workers as a form of liberation or see them as victims of male exploitation, or, in some cases, both (resulting in some pretty conflicted -- and massively confusing -- arguments). The left tends to object more to economic changes, such as removing all regulatory agencies, or privatizing banking (to be fair the right objects to that too). Then again, the left does have their own set of social issues to which they object as well, such as ending anti-discrimination laws which apply to anyone outside the government. And, as the banking example shows, the right has their own economic hobby horses as well, such as banking, the SEC, and a few other populist measures. So the old belief that the right is all about economic freedom and the left about social is no longer accurate, if it ever was.
2. For these arguments, see "The Benefits of Federalism" and "Minimal Reforms",(commerce clause), "Slippery Slopes", (Griswold) and "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"" (eminent domain), and "Guns and Drugs" (discusses the general principle). See also "The Case for Small Government", "The Free Market Solution" and "Government Quackery" for my argument against extending government. A general history of government expansion (if an incomplete one) can be found in "A Timeline Part One", "A Timeline Part Two" and "A Timeline Part Three".
3. See "The Problem of Established Perspectives", "Skewed Perspective , or, How Big Government Becomes Inevitable", "A Few Thoughts on Charter Schools", "Of Wheat and Doctors", "De Gustibus Non Disputandum Est", "Another Look at Exploitation", "The Glory of Eisenhower?", "The Magic Bureaucrat", "The Gadarene Swine Fallacy", "Government Versus Culture - A Forgotten Distinction", "Non-Governmental Communal Solutions", "Ordered Liberty and Our Modern Mindset", "New England Versus Virginia (And Venice, And England, And Rome...)","'...Then Who Would Do It?'", "Some Thoughts on "Summerhill"", "Selfishness as Reason - "Wants", "Needs", "Fairness" and Other Guises for Arbitrary Decisions", "Common Sense,Philosopher Kings, Arbitrary Law and Dictatorship" and "Volunteer Fireman, Barn Raisings and Government".
4. I refer to this as the "Swiss Army Knife" view of government, the belief that for any problem, there is some answer government can provide. (See "Skewed Perspective , or, How Big Government Becomes Inevitable", "Why I Reject Compassionate Conservatism", "The Difficulty of Principle", "Guns and Drugs" and "An Interesting Debate".)
5. If you doubt this, visit England. It took me a few days to stop running into people on the stairs and in the malls, as their assumption that people would keep to the same side as traffic conflicted with my American "traffic to the right" habits.
6. See, for example, "Non-Governmental Communal Solutions", "The Problem of Established Perspectives", "A Few Thoughts on Charter Schools", "Private Versus Public Charity" and "A Few Conservative Caricatures".
It has been a long time since I complained about spellcheck on a web browser, but today I was rather surprised to find that Chrome, usually pretty good with spellings, thought "outlier" was misspelled. I am sorry, but that is not exactly an unusual word, especially among those who use the internet. With a fairly high percentage of users who understand statistics and related fields, is it really proper to mark "outlier" as misspelled?