Wednesday, June 09, 2004
Battle Pursuit of Happiness - Iron Blogger Libertarian - First Rebuttal
Thank you Challenger - excellence is achieved only when a worthy opponent is thrust in your path. I now battle knowing that I carry the full weight of expectations upon my shoulders.
I have several rebuts to the Challenger's well crafted claims -
FIRST - The challenger describes problems that are consequences of the system he's trying to defend. The status quo prosecutes victimless crimes and nevertheless gave birth to the Crack Whore and countless more like her. The reason drugs are peddled at schools rather than behind the counter at Walgreens is because of illegality. The reason prostitutes strut their selves on sidewalks is because they can't strut their ads in other media. The reason these businesses are seedy like Al Capone (and thus affect property values) rather than stately like the Budweiser Clydesdales is because of illegality.
There's a fundamental efficacy problem which hasn't been addressed by the challenger - "more" of the status quo won't prevent these issues.
SECOND - The challenger's argument suffers from ceteris paribus - the assumption that all other things will be equal. Society is a dynamic, constantly rebalancing system -- to change one part of the equation, necessarily changes the other side as well. Prohibition-era alcohol business featured the likes of Al Capone (a worthy predecessor to Pablo Escobar) while in our era, it's Anheuser Busch. The first was a necessary product of a business that could only operate in the shadows, while the other comes into our living rooms to celebrate Superbowl Sunday. The repeal of prohibition brought stockholders, advertisers, distribution centers, salaried employees, labor unions, and a decidedly different mix of customers & storefronts into the alcohol business -- all of which decreased the "Freedom of Action" necessary for men like Capone to thrive.
Perhaps the most dramatic systemic impact could be upon the "product" itself. Once again, I turn to an example from alcohol prohibition -
With alcohol production largely in the hands of criminals and unregulated clandestine home manufacturers, the quality of the product varied widely. There were many cases of people going blind or suffering from brain damage after drinking "bathtub gin" made with industrial alcohol or various poisonous chemicals. One particular notorious incident involved the patent medicine Jamaica ginger, known by its users as "Jake". It had a very high alcohol content and was known to be consumed by those desiring to circumvent the ban on alcohol. The Treasury Department mandated changes in the formulation to make it undrinkable. Unscrupulous vendors then adulterated their Jake with an industrial plasticizer to attempt to fool government testing. As a result, tens of thousands of victims suffered paralysis of their feet and hands - usually, this paralysis was permanent.
Similar changes can be seen in the services side of the "vice biz" as well - for ex. the difference between a Detroit street bookie and a "Family Friendly" Vegas casino like New York, New York.
Almost every major economist / historian / sociologist agrees that in retrospect, the Prohibition experiment was a failure with the black market crime being far worse than the vice itself. The challenger himself appears to grant a rather broad applicability of this experience to the current topic ("Are [drugs] worse than tobacco and alcohol? I find the question immaterial")
THIRD - there's the invisible problem. While I find the challenger's anecdote compelling, it errs on the side of solving a visible problem while simultaneously creating a larger, invisible one somewhere else. For example, this small anecdote from Cato
On Thursday, March 17, 1988, at 10:45 p.m., in the Bronx, Vernia Brown was killed by stray bullets fired in a dispute over illegal drugs. The 19-year-old mother of one was not involved in the dispute, yet her death was a direct consequence of the "war on drugs."
...Vernia Brown died because of the policy of drug prohibition. If, then, her death is a "cost" of that policy, what did the "expenditure" of her life "buy"? What benefits has society derived from the policy of prohibition that led to her death? To find the answer, I turned to the experts and to the supporters of drug prohibition.
How many crack whores justify a single, innocent Vernia Brown? Alas, I fear my challenger - and many in his shoes - simply have no exposure to the likes of Vernia Brown, LA's Watts or the seedier sides of Oakland. There is no single face to issues like money laundering, corruption, and narco-terror even though these problems affect us all.
FOURTH - Positive Rights vs. Negative Rights. In the Classical Liberal / Libertarian tradition, rights are Negative . Individuals are legally "ends of themselves" and the Constitution strives to provide them with maximum freedom by limiting what it or other individuals can do to you (a formalization of "the right to swing your fist...").
I recognize that individuals aren't truly islands - we have responsibilities to our family members, our community, etc. and they in turn care for us. "Victimless crimes" do affect these bonds. But these responsibilities are NOT borne by the law. The question of legality vs. illegality is a critical distinction central to the Chairman's challenge and is well recognized by folks like the Gipper (Praise Be Unto Him)-
Through more and more rules and regulations and confiscatory taxes, the government was taking more of our money, more of our options, and more of our freedom.
Between the government and the individual, there are a great number of natural, voluntary organizations which people form for themselves -- like the family, the church, the neighborhood, and the workplace, where people learn, grow, help, and prosper.
Positive rights are difficult precisely because they - as Reagan noted - can only be provided at the expense of negative rights. A positive right is the right TO something (for ex. the right to an education) provided by society.
The challenger's position on the Rights debate is perhaps best summarized here -
No commonly understood right to prostitution, gambling, drinking, smoking, or other drug use exists now or has ever existed.
However, this is actually the case - just not literally. The Constitution and the Gipper both recognize that Rights are first vested in the individual and carefully chipped away by the government as new policies are deployed. The Constitution is rather explicit that the Bill of Rights is illustrative, not exhaustive and thus places the burden of proof upon those attempting to impinge upon Negative rights.
In a legal victimless scenario, the Positive right the Government attempts to secure is the rather twisted "Right to prevent an individual from doing something to themselves".
Prosecuting "victim-full" crimes is simple because we can assume there's a highly motivated individual who will help govt get involved in prosecution. Victimless crime prosecution is sticky precisely because neither side really desires government involvement in their transaction. In order to restrict this behavior (gambling), we must impinge upon the negative rights of all (raise taxes to pay for cops, invade financial "assembly" by interjecting government in transactions between 2 consulting adults, etc.). In effect, positive rights against victimless crime effectively create an omniscient / everpresent government "victim." When the Government is incompetent, we have Vernia Brown, when it is too competent, we have a police state.
FINALLY - Our Government is a Liberal Democracy. Liberal, in the Classical sense, means that we possess "inalienable rights" which can't be contracted away or removed by a majority. The challenger positively notes that the status quo has rendered a certain judgement around victimless crimes. However, despite the follies of our electorate, positive rights can and have been retracted (prohibition being a prime example; welfare reform a lesser case) and by no means is the current state of our polity either permanent or ideal. Just because the majority of citizens & judiciary may today wish to prosecute victimless crimes and deny inalienable rights doesn't mean that they won't tomorrow, after reading my rebuttal, realize what a mistake they are making.
Mr Chairman - I humbly yield to the Challenger.