I'm humbled by the Chairman's request - questions of what is legal, illegal, and creates happiness have plagued man since the first caveman eyed his neighbor's quarry. There are many layers here - some of which the challenger and I will undoubtedly agree with and others where the clash may be fundamental. Let me try to cover this huge philosophical territory with a few broad arguments / issues.
There are a couple ways to discuss how the "pursuit of happiness" meets government:
- a Rights-based approach based on more abstract theory and legalizing (loosely - how "should" we behave to maximize individual happiness?)
- the utilitarian approach which focuses on a more strict cost/benefit approach (loosely - given "how we actually behave" what's the maximizing policy?)
From a Rights standpoint, Libertarians tend to gravitate towards the age-old, simple axiom - your right to swing your fist stops at my face.
While a simple statement, the underlying issues are complex and profound -
- all individuals have different activities which provide them with happiness - there are few, if any truly universal standards. The implication - any legislated directive towards happiness necessarily implies a value imposition by one party upon another - a rather unhappy outcome
- material impingement is required rather than the softer standard of psychic impingement - you can engage in whatever vile, disgusting behavior you want but it affects me physically, it's clearly an issue. Up until that point, I generally have to deal with it
- the flippant, reciprocal formulation tells us not only what behavior to expect from each other but also carries an implied cost to violating this behavior (your Right could end up meeting my right fist). It auto-enforces but in a peer-to-peer rather than top-down way
Rights-based approaches aren't, of course, automatically absolute - as Justice Oliver Wendell Holmes famously noted
"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."
Similarly, one can expect some level of "lewdness" enforcement against nude sunbathers in a neighborhood filled with children. While it doesn't strictly impact me for my neighbor to merely breed anthrax at home, the social costs are just too high to wait for one of his spores to hit my face and so we take proactive action.
While the rights-based approach is predicated on freedom of action, the utilitarian approach starts with the axiom - the greatest good for the greatest number of people
. Or, more loosely, pursue activity until the costs outweigh the benefits. The utilitarian schtick, when applied to the Chairman's problem above - prostitution, drug use, and gambling - tends to lead to questions like this -
- is drug use good or bad? (in most cases, bad)
For many, particularly of a statist bent, this is the first and last car in the utilitarian decision train - a 'crude' oversimplification. However, today's public choice economics schooled folks recognize that there are quite a few other dowstream questions -
- will criminalizing drugs solve the problem? (can it really cut consumption to zero?)
- will it possibly make the problem worse by introducing other problems? (does it introduce black markets and all of their attendent costs?)
Well, in the case of issues like drug use, I'm of the rather firm commitment that the drug black market is of far more social harm than the individual drug user. For the drug user & dealer, it's all the attendant costs of black market enforcement of their contracts (bringing Right Fist's upscale bro Mr. AK 47 into the mix). For the rest of us, its the violence, corruption, and economic distortion that ranges in scale from the innocent bystander at a shoot out all the way to the near-takeover of Colombia by narco-terrorists.
Put simply, when all these costs are tallied, Drug Crime is far worse than Drug Use to social happiness. The Cato institute, for example, invokes both the rights (morality) and utilitarian (practicality) perspectives
The war on drugs is immoral as well as impractical. It imposes enormous costs, including the ultimate cost of death, on large numbers of non-drug-abusing citizens in the failed attempt to save a relatively small group of hard-core drug abusers from themselves. It is immoral and absurd to force some people to bear costs so that others might be prevented from choosing to do harm to themselves. This crude utilitarian sacrifice--so at odds with traditional American values--has never been,and can never be, justified. That is why the war on drugs must end and why it will be ended once the public comes to understand the truth about this destructive policy.
The core problem with utilitarianism is a variant of the "guiderails" argument
Perhaps elites can afford to flirt with drugs, with indiscriminate sex, and with excess personal liberty, the editorial explained, "but for a lot of other people it hasn't been such an easy life to sustain. Not exceedingly sophisticated, neither thinkers nor leaders, never interviewed for their views, they're held together by faith, friends, fun and, at the margins, by fanaticism."
"These weaker or more vulnerable people, who in different ways must try to live along life's margins, are among the reasons that a society erects rules. They're guardrails."
The endless tallying and retallying of the costs / benefits of a particular activity place large sectors of society on shaky ground. It may be fair - from a stricly utilitarian standpoint - to say that Free Speech shouldn't be extended to the KKK. However, this action places our entire society on a defensive posture w.r.t. exercising this right. Consequently, we typically honor the Rights argument rather than cost/benefit.
There is one last important point to make - just because a particular behavior may directly detract from the happiness of others (the Rights scheme) or unambiguously possess costs that outweigh its benefits (a utilitarian scheme), it still doesn't necessitate a legal vs. illegal decision by the government. Because....
"Society" is far greater than just government
-- The American / Western polity is perhaps unique in the extent to which it recognizes that there's another layer between the individual and Government. It's within this layer that we implement (in a manner of speaking) many of the machinations necessary for harmonious society. Pericles - yes, that one - recognized this back in 431 BC
What was the road by which we reached our position, what the form of government under which our greatness grew, what the national habits of which it sprang?
...The freedom which we enjoy in our government extends also to our ordinary life ... But all this ease in our private relations does not make us lawless as citizens. Against this fear is our chief safeguard, teaching us to obey the magistrates and the laws, particularly such as regard the protection of the injured whether they are actually on the statue book or belong to that code which, although unwritten, yet cannot be broken without acknowledged disgrace.
What does that mean for us? Well, there are broad classes of behavior that are consistent with the social "pursuit of happiness" but which have no basis within Governance. Put simply, there are ways to pursue the "Good" orthogonal to the question of what's Legal and Illegal.
For example, a recent example from a Sin-Biz - the adult video industry - shows the power of such civil society at creating and enforcing policy completely outside of government
Dozens of companies have taken part in a voluntary moratorium pending HIV testing since actor Darren James apparently contracted the virus that causes AIDS in March while shooting a movie in Brazil.
About 50 people who performed with James or those he worked with were put on a voluntary quarantine list that effectively prevented them from doing sex scenes until they had passed two monthly HIV tests. Twenty have been cleared to work.
The Good was detected and enforced within industry with no governmental involvement. And a certain brand of Southern California Happiness continued to be enjoyed by the participants as well as their audience.
While I don't deny the imperfections of human nature - for example his need for social recognition, peer support, and so on - what's intrinsic to man need not be intrinsic to government.