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Sunday, June 13, 2004

Battle Pursuit of Happiness - The Challenger - Closing Arguments

Victimless Crimes Are Not Victimless, And Are Not Rights

by Dean Esmay

As I have demonstrated in this series of essays, the Founders never had a consensus opinion that petty vices such as gambling, excessive drink, or prostitution were among the fundamental liberties they fought for. Indeed, the Continental Congress called upon the several States to crack down on gambling even before the Constitution was enacted, and George Washington's political opponents spread a rumor that he was a gambler because it was widely understood at that time that no one who gambled was fit for public office. Thomas Jefferson himself considered gambling miserable and destructive and even advocated laws banning gamblers from holding public office.

While the amendment banning alcohol sales in the United States was repealed in the early 1930s, it still remains that the voters retain the right to ban alcohol sales, as they do in many dry counties, and to put strict limits on who may sell alcohol, where, under what circumstances, and to whom. The same is true of course of cigarettes, narcotics, or prostitution services, and even in the few places where prostitution is legal there are still strict legal limitations on the practice.

All vices have victims--all of them. And, since none of these vices is truly a "right" in our system of government, the voters retain a positive right to regulate them in whatever way their consciences deem appropriate.

My esteemed opponent would have you believe that the ninth amendment, which reads as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
...ensures that individuals have the right to be prostitutes, to gamble in a manner unregulated by the state, and to use or sell drugs, without the voters having the right to place restrict or regulate or ban these these practices.

But our liberal system of government works so well because it recognizes a balance between individual rights and the right of people to government which represents their collective will and values. Thus it enshrines certain basic rights in the Constitution, and further allows still more rights to be recognized either through the common law rights well understood by all (the right to travel, for example) or which are enshrined in state Constitutions. This is the real meaning of the 9th amendment: that just because the U.S. Constitution recognizes certain rights, that does not mean that any common law rights, or state Constitutional rights, should be disparaged.

The final piece of the puzzle, in my view, is articulated by the equally-important 10th amendment, which reads as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Thus, if the Federal government is not empowered to do something, then the remaining rights are secured for the people or the states.

And thus it comes down to this:

Voters have the right to regulate or abolish behaviors which they consider destructive or harmful. Whether we agree with the voters or not, they retain the right to do so. Your ability to change it rests in the following rights:

1) Your right of free speech, to try to persuade the voters
2) Your right to petition your government officials, to urge them to change the laws.
3) Your right to vote, and
4) Your right to travel and move to communities where the laws are more to your liking if the first three fail.

While my esteemed opponent has given us an excellent series of philosophical treatises, he has not demonstrated that any of the petty vices are fundamental individual rights, nor has he demonstrated that they are victimless. As I have already demonstrated, the founders recognized no such "right to vice," and neither do today's voters, today's courts, or our state or Federal governments. All of these so-called "victimless" activities have legions of victims. All that being the case, the people, through their duly elected government officials, have every right to enact laws regulating these vices--vices which, without question, cause widespread social harm.

Thank you for listening.

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