The Chairman's directives for this debate was a broad, ambitious question -
With regard to victimless crimes -
- What should be legal?
- What should be illegal?
- Is victimless crime truly victimless, and where does one's right to pursue happiness end?
Iron Blogger Libertarian fully acknowledges that so-called victimless-crimes aren't truly victimless in a strict social sense of the word. There should be no question that this aspect of the Challenger's argument is being freely granted. In other words, the activities we consider "victimless crime" are generally "Bad" from a social and moral perspective.
However, the essence of the IB Libertarian position is that behaviors that are socially or morally "Bad" don't automatically translate into conduct that must also be illegal. While strict illegality is occasionally called for, I set a very high bar for making this case which the challenger's arguments simply do not meet.
Over the course of the debate, IB Libertarian proposed the following issues necessary for making the logical leap from "bad" to "illegal". I'd like to revisit these in my closing statement -
- The utilitarian approach which focuses on the global costs/benefits of criminalizing victimless crime
- A rights-based approach which focused on the constitutional / legal framework for criminalizing these activities
- A discussion about the efficacy and centrality of civil society in constructing the ultimate Western polity
On the utilitarian question
both parties agreed to and enumerated many of the costs of the current system. However, the crucial twist in the debate was my first point in the first rebuttal - that the costs enumerated by both IB Libertarian & the challenger were the precise product of illegality in the first place. This point went basically uncontested for the duration of the debate and, as a result, we are left with the very firm impression that on a strictly utilitarian basis there is no reason to support criminalizing victimless crime. This prima facie
aspect of the case for illegality wasn't made. Deroy Murdock provides more data on these costs
in the case of the War on Drugs, for example -
Since the days of "Just Say No," this domestic quagmire [the War on Drugs] has lasted longer than the Vietnam War. It has killed, detained and bullied innocent citizens and non-violent offenders in a futile campaign to vacuum every last cannabis seed from America's streets. This fool's errand isn't cheap. Between 1990 and 1999 alone, federal anti-drug law-enforcement activities have cost taxpayers $81 billion. States and cities have spent even more. Meanwhile, low-cost drugs have become even more plentiful.
Similarly, the discussion introduced in the first rebuttal that Society is greater than Government
went essentially unchallenged throughout the rebuttals. Speakers as far back as Pericles recognized that society and government first rests on civic associations and virtues and that a series of unwritten laws provide the first guidance for how to behave in a socially optimal manner. Government arises to handle the exceptions rather than vice-versa. Thus, the Libertarian Iron Blogger's core position on victimless crimes is that attempts to fix the "Bad" must first exhaust the solutions available in civil society before turning to the heavy hand of Government. This has historically been the case with America and, as Francis Fukuyama (among many others) notes
, an energetic pursuit of this avenue is not just good but perhaps necessary for the proper functioning of Liberal Democracy -
The political function of social capital in a modern democracy was best elucidated by Alexis de Tocqueville in Democracy in America, who used the phrase the "art of association" to describe Americans' propensity for civil association. According to Tocqueville, a modern democracy tends to wipe away most forms of social class or inherited status that bind people together in aristocratic societies. Men are left equally free, but weak in their equality since they are born with no conventional attachments. The vice of modern democracy is to promote excessive individualism, that is, a preoccupation with one's private life and family, and an unwillingness to engage in public affairs. Americans combated this tendency towards excessive individualism by their propensity for voluntary association, which led them to form groups both trivial and important for all aspects of their lives.
..If a democracy is in fact liberal, it maintains a protected sphere of individual liberty where the state is constrained from interfering. If such a political system is not to degenerate into anarchy, the society that subsists in that protected sphere must be capable of organizing itself. Civil society serves to balance the power of the state and to protect individuals from the state's power.
In the absence of civil society, the state often needs to step in to organize individuals who are incapable of organizing themselves. The result of excessive individualism is therefore not freedom, but rather the tyranny of what Tocqueville saw as a large and benevolent state that hovered over society and, like a father, saw to all of its needs.
Tocqueville in the 1700s perfectly foreshadowed the arguments about victimless crimes that we're making today! By blurring the distinction between "Bad" and "Illegal" and introducing a vast network of positive rights we risk creating a "daddy state." We should instead be doing everything to ensure that such a clumsy and potentially fatal instrument like Government treats us like adults.
Finally, the majority of the discussion focused on an aspect of the rights-based argument - namely, could voters abridge the rights of the individual to attack victimless crime? On rights, we see perhaps one of the central questions regarding burden of proof - the Constitution in rather stark terms states any rights not enumerated were still provided to individuals. As a result, the Challenger's position is required to make the cost/benefit case well before asserting the need for government involvement. The Challenger's position instead focused on defending his assertion that such a right existed and that it was a natural aspect of Democracy.
However, Democracy minus liberalism is a scary proposition. Fareed Zakaria, once again, notes the importance of not putting the cart before the horse
Constitutional liberalism has led to democracy, but democracy does not seem to bring constitutional liberalism. In contrast to the Western and East Asian paths, during the last two decades in Latin America, Africa, and parts of Asia, dictatorships with little background in constitutional liberalism have given way to democracy. The results are not encouraging. In the western hemisphere, with elections having been held in every country except Cuba, a 1993 study by the scholar Larry Diamond determined that 10 of the 22 principal Latin American countries "have levels of human rights abuse that are incompatible with the consolidation of [liberal] democracy." In Africa, democratization has been extraordinarily rapid. Within six months in 1990 much of Francophone Africa lifted its ban on multiparty politics. Yet although elections have been held in most of the 45 sub-Saharan states since 1991 (18 in 1996 alone), there have been setbacks for freedom in many countries.
Put simply, Liberalism First, Democracy Second.
Criminalizing any sort of behavior - and the attendant removal of liberty from its perpetrator by the clumsy hand of the state - is something that no truly liberal democracy should take lightly. Literally thousands of years of Western political evolution have taught important lessons about the burdens which must be met by those who wish to embark on such a dangerous endeavor. I argue that on the bases of utilitarianism, respect for civil society, and compliance with fundamental precepts of the Constitution, the Challenger has not met this burden.
I wish to extend my thanks to the Judges, the Challenger, and of course, the Chairman for making this arena available to us all.
- Iron Blogger Libertarian, Vinod Valloppillil