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Friday, June 11, 2004

Battle Pursuit of Happiness - Iron Blogger Libertarian - Second Rebuttal

With a broad topic like the Pursuit of Happiness, it's difficult to ensure that the ensuing debate produces clear areas of clash between the 2 participants. For example, in this passage, the challenger grants what's classically the central clash in a debate on this topic -

...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.

Put simply, by utilitarian measures, we appear to be in agreement that the criminalization of victimless crimes exceeds its benefits. By not countering my arguments about the source of the social ills, the challenger is basically leaving the judge to take these arguments at face value and hence essentially granting them. Instead, the challenger is directing the debate from the question of "should voters criminalize victimless crime" to "can voters criminalize it."

This latter question quickly breaks down into the broad issue of "what can voters do?". On the rights side of the debate - the challenger's central contention is that "Freedom of Action" provided to voters allows the enactment of positive rights such as preventing others from engaging in victimless crime -

...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.

In the West, voters aren't all powerful - One of my favorite thought experiments here is succinctly provided by Fareed Zakaria in his book The Future of Freedom [p 19]:

"Suppose elections are free and fair and those elected are racists, fascists,
separatists," said the Amercian diplomat Richard Holbrooke about Yugoslavia in the 1990s."

...For people in the West, democracy means "liberal democracy": a political system marked not only by free and fair elections but also by the rule of law, a separation of powers, and the protection of basic liberties of speech, assembly, religion, and property.

...Constitutional liberalism, on the other hand, is not about the procedures fo rselectin government but, rather, government's goals. It refers to the tradition deep in Western history, that seeks to protect an individual's autonomy and dignity against coercion whatever the source -- state, church, or society"


The point? There's a strong tradition in the US and the rest of the West that the will of the voters is not the only expression of our Liberal Democracy. In fact, observors like Fareed Zacharia make the explicit case that such "Liberalism" and its express protection from "society" rather than "Democracy" is the hallmark of Western civilization & governance.

The constitution expressly reserves unenumerated rights to the individual Clearly, our best instantiation of Liberal Democracy is the US constitution. One of my favorite proofpoints of this is found in examining the debates the framers had when creating the Bill of Rights in the first place. This description, for instance, captures the deep skepticism the framers had about the government's intrusion into personal rights -

During this process there was a heated debate between those who supported the proposed constitution, the Federalists, and those opposed, the Anti-Federalists. Part of the debate focused on the lack of a bill of rights. The Federalists claimed a bill of rights was unnecessary. They based this assertion on the principle of limited government. The proposed constitution, if adopted, would create a federal government of limited enumerated powers. Under this system of government, every power not granted would be denied irrespective of whether the document contained a bill of rights.

...The Anti-Federalists, on the other hand, feared that the federal government would attempt to usurp this system of government and exercise powers not granted. They argued that a formal declaration was essential to secure the individual rights of the people.

It's important to note that this heated debate amongst the framers was NOT "can unenumerated rights be abridged by the government" but rather "how far do we have to go to ensure unenumerated rights never get usurped?"

The Federalists believed the basic structure of the Constitution was adequate while the Anti-Federalists feared that even this structure wouldn't withstand the pressure of political expediency. The Ninth Amendment was the catch-all & compromise between these 2 positions -

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Even in 18th century English, it's rather unambiguous. And beautiful.

Positive rights posses fundamental, internal contradictions As I stated in my earlier arguments, allowing positive rights requires the imposition of morals, values, and the removal of negative rights from one group in the population by another group. The Challenger's underpants argument, for example, necessarily abridges the rights of those who prefer to travel "commando-style". In the more serious debate around drug criminalization - a legal area where black market activity is far more likely than skirting the underpants law (no pun intended) - this is perhaps most dramatically illustrated by the violation of the right to life of Vernia Brown. By essentially granting the utilitarian argument, there's a rather direct and legally significant linkage from the positive right of attempting to create a drug free zone and the negative rights impact on Vernia Brown. Surely one of the few things that trumps the "pursuit of happiness" is "the right to life."

This recent post from Jane Galt provides an excellent tutorial on the basics of positive rights and their contradictions -


...The difference between positive and negative liberty is that negative liberty requires only that one refrain from acting: punching someone in the nose, walking on their property, and so on. What's more, it is, or should be, perfectly reciprocal: if I have a right not to be punched in the nose by you, you have as perfect a right not to be punched in the nose by me.

...Positive rights require me not merely to refrain from acting, but to affirmatively act.

...Positive rights are by their nature unreciprocal; there is no point in having the government require me to provide you food, shelter and an education if you are simultaneously required to provide me food, shelter and an education, as it would be more efficient to have each of us provide these things for ourselves.

Negative rights are bounded; positive rights theoretically unlimited.

Jane Galt's point with assymetry is critical - in the underpants case, clearly the positive Right to force all men to parade in their underpants benefits some radically more than others (perhaps some of my neighbors here in San Francisco?). Given that the supporter of such a policy probably already chooses to wear underpants on the outside, the "social increment" here is that he's simply expressed a desire to see others do it. By contrast, this increment costs others FAR more - they actually have to do it when they presumably wouldn't have under their own volition.

Is vs. Ought. The central debate challenge issued by the Chairman is a question of "ought" rather than "is". "Should victimless crime be illegal" rather than "Have voters decided to criminalize victimless crimes". I'll grant that they have BUT, with the critical caveat that this is not indicative of "should they". Ours is a dynamic system and my fundamental faith in humanity is that many "is's" will eventually turn into "ought's." I advocate that this happen NOT via the inherent coercion of government but rather the soft power of civil society.

Thank you Mr. Chairman, I yield the floor to the Challenger.
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Battle Pursuit of Happiness - The Challenger - Second Rebuttal

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.


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Thursday, June 10, 2004

A Note From The Chairman

Due to unforeseen events, Challenger Dean Esmay will be unable to post his Second Rebuttal by the midnight PST deadline. Because of the circumstances expressed to me and the ample notice provided, I have extended his deadline to noon PST, Friday.

Judges please note that NO POINTS shall be docked as long as Mr. Esmay's post is up by noon PST Friday. If he fails to meet the extended deadline, he is to be docked 1 point per hour after the new deadline, rounded to the nearest hour. If he does not post by 9pm PST, Friday, the battle will be called a forfeit and the win awarded to the Iron Blogger regardless of scores.

We here at Iron Blog wish Mr. Esmay the best and hope for a speedy and satisfactory resolution to his current situation.

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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.[1] 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.[4] 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.


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A Call To Arms

Iron Blog is once again putting out a call for Challengers and Judges. We have our next few battles lined up, but we are always looking to keep a stable of Challengers ready to take on one of our Iron Bloggers. If you think you have what it takes to Challenge an Iron Blogger, send me an email.

Also, we are in need of a few more Judges, both left and right. Our current tally is 5 Left, 5 Right, 1 Center. I'd like to have 8 each, Left and Right, and 3 Center.

As with Challengers, if interested feel free to send in an email.

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Tuesday, June 08, 2004

Battle Pursuit of Happiness - The Challenger - First Rebuttal

"Rights," You Say? "Victimless," You Say?


by Dean Esmay

I'd like to tell a story which I think relates to the subject of petty vices such as prostitution, drug use, and gambling.

Just a few years ago, leaving my gated community for work in the early morning, I had a young lady approach my car as I waited behind some other cars at the community exit. She told me she was stranded and asked if I could give her a ride to her friend's house so she could get her car towed. I, being a soft touch, told her I'd be happy to oblige if it wasn't too far.

When she got into the car I got a better look at her and realized I'd just picked up a prostitute, one whose face had obviously been ravaged by years of hard living.

Well, I'm not a religious or particularly judgemental man. I wasn't interested in her services, but I didn't hate her, didn't think she was going to be tortured in hell for eternity or any of that foolishness. I did rather regret not thinking harder before picking up a hitchhiker, and shifted my body posture a bit in case she should be insane and try to pull a knife or gun on me. But I otherwise calmly asked her to show me where we were going so I could quickly drop her off. She sweetly offered to "take care of me" in exchange for the ride, but I said no thanks, and repeated that she should show me where to drop her. She gave me some directions, and within about five minutes she had directed me into a neighborhood I recognized as pretty rough. But I used to repossess cars in the area, so I knew it pretty well and how to handle myself. Then she asked me to stop so she could talk to a "friend" and I, rather foolishly, did so--and a man she obviously knew well promptly ran out to the car and sold her $20 worth of crack cocaine as she sat there in my passenger seat.

Of course I immediately pulled away, drove about a half mile, and told her to get out of my car. As she got out, I told her that crack was going to kill her, and she said she knew it and hoped to enter treatment soon. From the ravages of her face, I had to wonder if she'd live that long. I drove away feeling used by this person, but also rather sad for her. $20 a day was all it took to feed her crack addiction, which she could easily make turning tricks--but I had little doubt that she would probably not be alive in a few years, because crack addicts die young a lot, and this girl didn't look healthy at all; it was pretty obvious that she depended on the cover of night in order to look attractive enough to ply her trade, because drug use had so ruined her looks. She already had that wafer thin, wasted look that hits so many late-stage crack addicts.

I didn't hate her. But I would find it a little surprising if she were alive right now. As I noted in my opening piece, many prostitutes don't live long. As a rule, whores die at about three times the rate of the normal population, quite often from sexually transmitted diseases, drug addiction, or outright murder. Ask any cop and he'll tell you, being murdered is an occupational hazard for all but the most high-class and expensive whores. Ask any gynecologist or emergency room doctor about the rate of STDs among whores. And drug addiction, especially addiction to cheap, easy-to-obtain drugs, is common in the industry. It's not a pretty thing.

By the way, in case there is any doubt: my story of about the woman above is completely true, and without embellishment. I did not make it up for dramatic purposes. I think it's quite illustrative of what the real world of whores and drug users is like, and I'll have even more to say on that in a moment. But first let me first note that I get around a lot, and I could tell you similar personal stories about families I've seen destroyed by having a member with a gambling addiction, by people whose addictions were so powerful they sold the family car and home and lost their jobs and wound up divorced and on the streets because they coudn't give up gambling. But let's just acknowledge the truth: gambling addiction is horribly destructive and exacts a direct cost on more than just the gambler. And, as with pimps and drug pushers, those profiting from it are often profiting at the expense of innocents.

Now, in the comments to my opening piece where I mentioned some of the social costs to the vices under discussion, some in the audience said I needed to prove that having these vices illegal is a better choice than having them legal. To be blunt: I have to show no such thing.

No. The questions we face is whether these vices are "victimless crimes." Clearly, as I have already demonstrated, they are not victimless. The question is also whether these vices are a "right." I have already demonstrated that by the commonly understood definition of "rights" at the time of America's founding, they were not viewed as rights--and I assert now that it is obvious on the face of it that they are not considered "rights" now because they are still illegal and no court in the United States has declared that laws making them illegal violate anyone's rights.

The onus is on those of you who claim that these crimes are victimless to show why they are victimless, and upon those of you who claim that these behaviors are "rights" to show that they are rights. Whether you or I think such laws are constructive or not is immaterial; clearly they are not victimless and clearly they are not "rights" by any commonly understood definition of that term.

Now, in his quite thoughtful opening statement, the esteemed Iron Blogger Libertarian gave us a philosophical treatise on a rights-based vs. utilitarian-based approach to government, and repeats a standard libertarian axiom: your right to swing your fist stops at my face.

But, as I have already stated, it is rather fatuous to assert that these vices are a "right" or are "victimless." As commonly understood at the time of the declaration of Independence, prostitution, drug use, and gambling were certainly not understood to be rights. And, given that these behaviors are still illegal and still upheld as crimes by the courts today, clearly they are not rights now. Rights are commonly understood to be such things as freedom of speech, freedom to petition the government for redress of grievance, freedom to worship. No commonly understood right to prostitution, gambling, drinking, smoking, or other drug use exists now or has ever existed.

Indeed, let us say for the sake of the argument that "rights" are involved in the question of petty vices such as prostitution. My assertion is quite simple: If you're working as a prostitute in my neighborhood, you're impinging on my property rights by making my neighborhood a seedy place that other families would not want to live in. You're also endangering my family by creating an image of men and women and a lifestyle that I consider deeply dangerous and destructive to my children's long-term well-being, and that I don't particularly want my children exposed to on a daily basis.

Now it may be your position that my kids would be better off seeing such people and having me explain to him how destructive that life is. But I assert that it's my right to have a neighborhood where I don't have to worry about such things on a daily basis. I have a right to demand laws which keep such behaviors away from my property and out of sight.

In fact, let's put it in plain English: I don't want crack whores hanging out in my neighborhood, and I have at least as much right to demand an environment clean of such people as you have a right to sell your hiney for others' sexual gratification--however cute your hiney might be!

You don't agree? You think your right to be a crack whore trumps my right not to have my kids exposed to crack whores on a daily basis? Well there's the crux then: Who decides which idea of what is right in this circumstance?

I can already tell you, and it's based on another right enshrined in our system of government: voting.

We have a Constitution which recognizes certain basic rights: free speech, free assembly, firearm ownership, freedom from harassment by police without warrant or probable cause, and so on. These are enshrined in the Constitution and cannot be trumped by voters without a rigorous amendment process. Beyond that, we have certain commonly-understood rights which extend from America's early Common Law tradition, such as the right to free association or the right to travel. Furthermore, our state Constitutions can grant additional rights.

Anything else is left up to one of the most basic rights of all: the right to vote, and the right to representative government.

Which, flatly on the face of it, means that you and I must live with democratically enacted laws which do not conflict with rights recognized by the Federal or our state governments. Even if we find those laws foolish. Even if we find them counterproductive. Even if we argue until we're hoarse from screaming and blue in the face about how much we don't like those laws. Because that right to government which respects Constitutional rights but otherwise respects the will of the people through democratic means is what's most important of all.

So even if you think prostitution should be legal, your only recourse is the democratic process, not some farcicle claim about your "right" to be a crack whore if you want to be one. If you think that's a "right," then you should do your duty as a citizen and help start a process to amend your state Constitution, or the U.S. Constitution. Otherwise, you should see your elected representatives, and petition them to change the laws.

And if your fellow citizens disagree with you, they have every right to keep saying so. "No, we don't like having crack whores hanging out on our street corners, and we want the police to make them go away." Whether you find we voters' reasons valid or not is immateral. You either work to change our minds, or you live with the fact that our minds won't be changed and that we are exercising their constitutional rights to free expression and representative government.

As I've noted earlier, prostitution, gambling, and most forms of drug use are dangerous, seedy, nasty businesses. Are they worse than tobacco and alcohol? I find the question immaterial; I assert that I have every right to say that I don't want to live in a neighborhood where that's around, that I don't want my kids seeing that as they play in front of my house or at their nearby friends' house. I have a right to find that offensive and to say I don't want it around, and I have a right to vote for political leaders who will keep such nuisances away from me and my home and my family. And the same is true for loud noises, billboards, or anything else which affect my property values and the desirability of my neighborhood to me and those who share my values.

Should these things be legalized? Offhand I'd say yes, but they should be tightly regulated and restricted to areas outside of residential neighborhoods, or at least my neighborhood. If you want to vote to have it in your neighborhood, fine, just don't expect me to live there. In any case, I find the question immaterial: it remains that these vices are neither victimless nor a "right" in any commonly understood sense of the term "right."

Will it make me a hypocrite if I then crack open a beer, light up a stogie, and watch a porn movie in my living room? Perhaps. So what? That's not the question before us, is it?

You don't like what you view as my hypocricy? Tough. Based on my personal values, prostitution, gambling, and narcotic use are more socially dangerous than the manageable legal vices we have now. Maybe I'm wrong. Okay, then go on and exercise your rights in the matter--I mean your real rights, your right to tell me I'm wrong, and to go out and vote. But don't pretend you've got some divine right to sell your hiney and smoke crack rocks that trumps my right to a neighborhood I like, and my right to representative government.

And please don't forget the victims. Because all these vices have victims. All of them.

Mr. Chairman, I yield the floor to the distingushed Iron Blogger Libertarian.
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Monday, June 07, 2004

Battle Happiness - Iron Blogger Libertarian - Opening Statement

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.

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Battle Pursuit of Happiness - The Challenger - Opening Arguments

Victimless Crimes?

The esteemed chairman has invoked the famous phrase from our nation's Declaration of Independence, the "right to life, liberty, and the pursuit of happiness" and, rather surprisingly, tied this phrase to such popular vices as prostitution, drugs, and gambling. While it may seem unfair for me to rebut the chairman rather than his Iron Blogger, I am afraid I must fault the chair's logic in drawing such a comparison. First, because the Declaration of Independence has no force of law, and is merely a historic statement, and second, because surely most of the founders, including most of the signers of that document, would have blanched at the notion that "liberty and the pursuit of happiness" conferred an unlimited individual right to vice.

Prior to the creation of the Constitution, the Continental Congress passed a resolution urging the several states to crack down on the habit of what they called gaming--in other words, gambling. In a letter to his daughter written while he was President, Thomas Jefferson referred to the miserable resource of gaming, which corrupts our dispositions, and teaches us a habit of hostility against all mankind." George Washington, in his first inaugural address, said there is "no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between virtue and happiness; between duty and advantage; between the genuine maxims of an honest and magnanimous policy and the solid rewards of public prosperity and felicity; since we ought to be no less persuaded that the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained..." Can we have any sane doubt that at the time he wrote that he like his fellow founders have viewed drug addiction, gambling, and prostitution as lacking in virtue, as genuine vices? Indeed, Washington's political opponents tried to spread a rumor that he was a gambler just to prevent him from becoming President, for that alone would have been widely viewed by the Founders as disqualifying a man from public office. Yet as it turns out, Washington not only wasn't a gambler, but did his best to forbid the practice among his troops when he was a general, and never said a good word about it.

Of course, this isn't supposed to be about what the Founders thought, except to note that in the morality of their day, the age-old vices of prostitution, gambling, and heavy drinking (a form of drug use, of course) were all frowned on as great social evils.

The bigger question in these "victimless crimes" is whether they are truly victimless. I must assert strongly that they are not. For rarely do those caught up in these vices live solitary lives as islands unto themselves. There are families and children involved in almost all of these vices. Almost no one wants to see their son or daughter fall into a life of prostitution. Furthermore, prostitutes, as vectors for sexually transmitted diseaes, are a major public health hazard, and what they do affects us all. And, while some women might be happy as prostitutes, most who've seen this industry will tell you that the "happy hooker" is mostly a myth. The average prostitute mostly preys on the weaknesses of lonely men, but then herself is often close to enslaved psychologically by a pimp, who may also intentionally turn her into a drug addict just to keep her dependent upon him. The average prostitute lives a short, miserable life and many don't live past the age of 40. Then there are the communities who are affected, for communities which have prostitutes walking the streets also generally suffer lowered property values; few families want to live in areas where their sons and daughters see women and boys commonly prostituting themselves.

The average drug or gambling addict has a family, and that family often winds up watching helplessly as the addict destroys himself, and he may well destroy the family as he does so. Losing your car, your home, and your family to these vices is hardly uncommon. And once again, there is the issue of how these things affect all our lives: do you want to live in a neighborhood where street walkers and drug addicts are a common sight? What does that do to your property values, or to how you explain things to your children about acceptable and unacceptable behavior?

Libertarians like to say that liberty is frequently curtailed by those who are acting in the interests of children, but frankly this is nonsense. People have a right to form communities that are stable, safe for themselves and their children, and in which their property values won't be destroyed by the bad behavior and bad examples of others. Thus I think almost anyone would agree: even if we were to legalize gambling, prostitution and drugs, we would have to tightly regulate all these practices, keeping them out of residential neighborhoods, and restricted only to a few places where only adults generally go. And even if we were to do something like that, establishing "red light districts" where we looked the other way at these social evils, we would be fooling ourselves if we did not acknowledge that there would be a huge cost in human lives: drugs, gambling, and prostitution all destroy lives, and very few of those who fall prey to these vices are able to isolate their families and communities from that destruction.

Furthermore, there's another truth we should acknowlege: those in the business of profiting from gambling, drug addiction, and prostitution--the owner of the house of gambling, the pimp, the drug pusher--are all in the business of destroying lives for a profit. It may be that this is acceptable in a free society, but let's not kid ourselves about what these people are doing with their businesses.

In summary, then: It is doubtful that most of those who signed the Declaration of Independence would really have endorsed the notion that "life, liberty, and the pursuit of happiness" included prostitution, drugs, and gambling among those precious liberties they were all ready to put their lives on the line for. And the notion that these crimes are "victimless" is really rather fatuous: all of them destroy lives, families, and communities. Can we just be honest about that before we talk about whether to simply throw out all laws which discourage these behaviors?

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Sunday, June 06, 2004

Fourth Battle

As we enter into our fourth battle here at Iron Blog, a lot is on the line. Three of my Iron Bloggers have claimed victory in their battles, bringing much pride and honor to me and this blog. Though each battle was close and passionately fought by the Challengers, my Iron Bloggers have shown why I chose them to hold the position of Iron Blogger.

But this week's Challenger may tip the scales. He has one of the largest Centrist blogs in the blogosphere, his politics liberal in some ways, but conservative in others. A proud independent, he challenges the two major parties and their world view regularly and without apology.

He also has the honor of being the husband of my Iron Blogger Republican, Rosemary Esmay. He is Dean Esmay, owner of Dean's World.

Iron Blogger Libertarian, Vinod Valloppillil, you have been Challenged, and I summon you to the field of battle. May your scientific mind serve you well and preserve the undefeated streak of my Iron Bloggers, making all of you victorious in your first battles.

If memory serves me right, last week's battle over Torture proved to be a highly philosophical debate over the harm man inflicts on his fellow man. Where one person's rights end and others' begin was a hotly contested subject. This week, I think I shall take this idea in the other direction. What are we allowed to inflict upon ourselves? The Topic for the battle is this:

Pursuit of Happiness


Our country was founded on the rights to 'life, liberty and the pursuit of happiness'. So called 'victimless crimes', some say, make it illegal for many to 'pursue happiness'. Prostitution, drug use and gambling, three illicit activities in all but a few, rare circumstances, and yet alcohol will claim more lives in one year than all three combined. What should be legal? What should be illegal? Is victimless crime truly victimless, and where does one's right to pursue happiness end? Let us find out what our combatants have to say.

Allez debate!

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Blitz Battle #2 Verdict and a Note From The Chairman

Congratulations to Chris in NH, winner of our second Blitz Battle.

I have been a bit absent this weekend as I've been dealing with life offline. Some of it's good, some of it isn't, but I'm back again, and will be around all week as we host our fourth battle.
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Blitz Battle Winners
Chris in NH (BB #2)
Big Dan (BB #6)
Former Challengers
Jimmie Bisse Jr. of The Sundries Shack
Chris of World Inquiry
Dean Esmay of Dean's World
Big Dan of God In The Machine
Owen of Boots and Sabers
Frank LoPinto of Cool Blue Blog
Bryan S of Arguing With Signposts
Ralph Stefan of Ralph's Garage
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Rosemary Esmay (2-1)


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