The Question Of Rights
by Dean Esmay
My worthy opponent asserts that the problems caused by our victim-filled "victimless crimes" are a result of their prohibition. If drugs and prostitution and gambling were legal they would be sold through respectable establishments rather than on the streets and in black markets, and most or all of the problems from these vices would be alleviated.
To this point the Iron Blogger Libertarian (along with many of the commenters) seems to have missed something important: I am not arguing that prohibition is the best option. I never have. I freely concede that the social costs to outright prohibition of these activities may be--might possibly
be--greater than they would be in a legalized, tightly regulated environment. Although I don't see where the Iron Blogger has demonstrated that we should believe this with absolute confidence, he may well be correct. Although I can assure him that when I was a teenager, legal substances such as alcohol and cigarettes were still available where I went to school, so the notion that legalizing drugs would keep them out of the schools strikes me as rather optimistic.
In any case, it has never been my position that prohibition is effective. I invite all present to re-read all my remarks to date on the matter to verify this. My position is that the people, as voters, have a right--a positive right
--to prohibit behaviors which are not recognized as rights, whether Iron Blogger Libertarian and I think the people have made a wise choice or not. And nothing in the Constitution or the history of the Founders indicates that any of the behaviors under discussion are "rights." Indeed, my argument is that our system gives voters a very important, positive right: to express their will by outlawing anything they wish which is not directly protected by Constitutional or common law rights.
So, should the voters legalize gambling? Perhaps, perhaps not. But I assert that voters do have the right to make these decisions, based on whatever logic or emotions guide their consciences. To take a truly absurd example: let us say that the city of Detroit passes an ordinance declaring that all men within city limits must wear their underwear on the outside of their pants. Men found without their underwear on the outside of their pants will be subject to a $50 fine or a night in jail.
Now would this hypothetical law be silly? Yes. Pointless? I would imagine so. UnConstitutional, or a violation of anyone's rights? Not that I can see, and not by any logic I have seen my opponent express.
(By the way, I note in passing that underwear-oriented arguments are popular here in the Esmay household.)
To give a more concrete example: even though the Constitutional amendment banning alcohol was repealed in the 1930s, it remains to this day that voters retain the right to outlaw alcohol. For example, there are still dry counties in Texas
as well as many other states, and many other counties have laws which strictly limit what kinds of alcoholic beverage may be sold, at what hours, to whom, and so on.
So far as I am concerned this perfectly fine. The people of these areas are exercising their democratic rights through their elected governments
to outlaw whatever behaviors they want. Indeed, the beauty of our free system is that if you live in such a county you have an absolute, inviolable right to argue to repeal such laws or, if you cannot convince your fellow citizens that they have made the right choices, you may move to an area where the laws are more to your liking.
In short, I argue for a Federalist position issues such as these, where clear solutions are not available and no clear rights have been established.
Moving beyond the rights argument, I note that the Iron Blogger Libertarian seems to have conceded, without noticing, a major point. He asserts that legal casinos and legal drinking establishments are less of a social nuisance than black markets in these activities. He also tells us he would like to see narcotics dispensed from behind the counter by pharmacists, which indicates to me that he accepts the notion that the narcotics trade may be restricted, with legal limits on who may sell these substances, and where and how such sales might take place.
This is in keeping with current laws on gambling: even in places where gambling is legal, the state places very heavy restrictions on when and where it may take place, who may go into the gambling business, regulates how games may be run, what odds the house is allowed to keep in its favor, and requires legal gambling establishments to provide services and information on how to recognize the symptoms of gambling addiction and how to avoid or treat it. Indeed, national groups such as the National Council On Problem Gambling
often work with casinos to help spread this information, in part due to the fact that casinos are required by law to make good faith efforts to help problem gamblers.
Also, despite widespread myths, prostitution is not completely legal in Nevada. The state of Nevada, as well as manly Nevada counties, places limits on who may run brothels, how brothels are run, where they may do business and where they may not
, and has other legal requirements besides. This industry is tightly regulated by the state and outright banned in many parts of the state, because voters in some counties have determined that they don't want them legal in their counties.
All of which strikes me as perfectly fine. The people of Nevada have a right to decide to allow prostitution or gambling, but the people in various counties or cities who don't want these services available in their counties or cities have every right to express their will through county and municipal ordinances.
To be blunt, I have no problem with either the counties or cities which legalize, or with those which prohibit these activities. Because these activities are not rights, they do cause social damage, and should be managed in whatever way the voters are most comfortable with. Because all of these "victimless crimes"--all of them--have their victims
, whether they are legal or not. And it's not always just the individuals who offer or use these substances and services who suffer.
In closing I would caution the Iron Blogger Libertarian about making assumptions about what I have seen and experienced in my own life. I've seen people destroyed by everything we have discussed, including the legal vices. I've lived in and worked in the lowest parts of the socioeconomic spectrum in our nation. Indeed, it is for this reason that I have a deep skepticism of the notion that there will no longer be any victims if we treat vices as "rights," rather than as problems that the voters have a right to manage.
I now yield the floor to my worthy opponent.