Before we move on to the next section, I leave you with some food for thought. We are now reaching unprecedented levels of public debt. Government may soon begin issuing bonds just to keep up with its interest payments. Sound familiar? It should. It’s a Ponzi scheme, and it can land you a lifetime in prison, like Bernard Madoff, or make you a hero, like FDR.
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Conclusion
The real evil of public finance is that it enables government to commit all of its atrocities against the individual. It is its lifeblood. Chodorov writes,
When you examine any species of government intervention you find that it is made possible by revenues. A government is as strong as its income. Contrariwise, the independence of the people is in direct proportion to the amount of their wealth they can enjoy.
Although I have argued that taxation itself is inherently evil in that it is nothing more than institutionalized theft, it is of course possible that government can spend those tax revenues on good causes which really do benefit the public. However, whether or not we are to trust government with money reverts back to the more essential question of whether we can trust government at all to handle power responsibly. If there is any lesson to be gotten from this book, it is that we cannot, and money is the most essential, brutally effective kind of power we the people could ever vest in the government. If we do so, then we sow the seeds of our own slavery. Although one may argue that the public necessity requires taxation, the reader must remember that it was precisely this mode of thought which enabled the atomic bomb to be developed and deployed. One who is convinced that we can somehow engineer a large government while avoiding such catastrophes is blinding himself to the lessons of history.
Does the government exist to protect our freedoms, or do we exist to serve it? It takes our property and our money against our will. Anyone willing to see through Big Government and unafraid to challenge it can answer that question. If the government derives its powers from the consent of the governed, as the Declaration of Independence declares, and if the governed cannot take their neighbor’s property against the neighbor’s will without violating the Natural Law, how can the governed have created a government that can morally do so?
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Chapter 14
A Ride on Dr. Feinberg’s Bus:
The Right to Be Governed by Laws with Moral Limits
Imagine catching the bus on your way to class, work, the doctor’s office, or coffee with a friend. You hop on board, grab a seat, and proceed to gaze out the window.1 All of a sudden, the vile stench of a passenger grabs your attention, and you look over to see a strobe light–carrying, stereo-blasting man who plops down in the seat next to yours. He reaches for a chalkboard in his bag and scratches his fingernails across its length. You politely ask him to stop, but he refuses.
As the goose bumps on your arm reach their peak, you make eye contact with a woman seated on the floor who is scratching, drooling, coughing, and burping relentlessly. She is sprawled out on a tablecloth in the aisle of the bus (in the back so as not to create a safety hazard), making a picnic lunch of live cockroaches, soft dog food, and rotten eggs—all sautéed in garlic and onions.
You recoil in disgust and are positive the bus populace cannot get any worse. The bus driver brakes, and a crowd of mourners boards with a coffin in tow. As they saunter past you, a pallbearer’s T-shirt comes into view. It is a depiction of Jesus hanging from the cross with the caption: “Hang in there, baby!” One of the other pallbearers is using an American flag as a shawl, wiping her tears and blowing her nose into the stars and stripes.
You attempt to ignore the chaos that surrounds you when a couple directly across the aisle catches your eye. They are kissing, hugging, petting, and fondling one another with sound effects to accompany their grossly inappropriate visual. The man takes off articles of his girlfriend’s clothing, leaving little to be imagined.
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To avoid the peep show, you stand up and move forward a few benches. A loud and boisterous young man approaches and asks if he can take a seat. “Of course,” you respond. He proceeds to rant ad nauseam about the weather, politics, his favorite TV show, the bus’s leisurely speed, and the burnt toast he ate for breakfast. You take out your newspaper to hint you have no desire to chat, but you are unable to make him stop. To add to your torment, two nasally voices are screeching at an ungodly decibel in the seats behind you.
Head pounding and searching for some kind of relief, you look toward the bus driver whose reproachful eyes signal the entrance of a group of teenage hooligans. Attempting to put the other bus passengers in fear of their lives, the first teenager pretends to pull the pin on a (very realistic) hand grenade, while the second teenager stabs his friends with a fake, rubber knife. The third, fourth, and fifth teenagers—all wearing armbands with emblazoned swastikas—carry cardboard signs with utterly offensive racial and ethnic slurs that denigrate Catholics, blacks, Jews, and Hispanics.
Now ask yourself: Is any of this conduct so reprehensible that it can be considered harmful enough to justify criminal punishment? The late Professor Joel Feinberg, who taught me philosophy at Princeton University, depicted this motley cast of characters as part of a classic study on the types of conduct which can merit criminal punishment, and the types which cannot. As we shall explore below, conduct must not merely offend, but cause actual harm for the state to seek to punish it as being criminal. Moreover, that conduct must be so severe that it can properly be considered a harm not just to the individual, but also to the freedom of all individuals. When is an individual free to pursue a remedy in civil proceedings, and when is it the public itself which prosecutes a crime and punishes a criminal? Any restriction of liberty in the form of criminal punishment is wholly illegitimate unless the exercise of liberty was intended to cause harm and actually did cause harm.
Sadly, the federal government has engaged in a profligate spree of criminalization of harmless behavior. We currently live under the oppression of a government which passes 56.5 new criminal laws a year, or 565 per decade.2 The United States Government Printing Office, whose core task is to provide “publishing and dissemination services . . . to Congress, federal agencies, federal depository libraries, and the American public,” is itself unable to calculate the number of pages in the Code of Federal Regulations. Even the American Bar Association’s Task Force on the Federalization of Crime has stated that “so large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.”3 Stated in financial terms, as of 2006, the federal government and all state governments spent a staggering $109 billion annually on feeding, clothing, and confining imprisoned adults, as well as nearly $98 billion on police services and $47 billion for prosecutions.4 Although America has approximately 5 percent of the global population, 25 percent of the world’s prisoners reside here!
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The net result of this irreverent legislation and regulation is a violation of the principles enumerated elsewhere in this book, and a contravention of the Constitution’s extremely limited authorization to criminalize conduct. Thus, only a small fraction of the federal government’s criminal code can be considered truly legitimate, and it is the government, and not the individuals it prosecutes, that is guilty of the greater unlawful conduct. It is high time that we utilize the criminal law for its one and only true purpose: To safeguard our liberties, not restrain them.
What Is Harm?
I never hurt nobody but myself and that’s nobody’s business but my own.
—BILLIE HOLIDAY
As mentioned above, in a society that respects natural rights, only conduct which can properly be described as harmful, and not merely offensive, can be criminalized. Harm can be defined as “an intentional nonconsensual physical violation of another person’s natural rights.” It should be clear at once that only actual injuries which fit this description can justifiably be punishable by the government. Should an individual who has never before suffe
red an epileptic attack be sentenced to life in prison when an unprovoked and unpredictable seizure causes him to swerve off the road and hit a pedestrian? Certainly not. By contrast, rape, murder, and theft are all actions which intentionally cause actual harm to natural rights and thus deserve to be punished as crimes.
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More specifically, we can think of harm as requiring that there be an actual victim. A prime example of a victimless crime is the private consumption of alcohol, or any drug for that matter. These substances surely affect one’s person, but in what way are they invading or assaulting another’s body, rights, or property? One might argue that they lead to dangerous behavior when one is in an altered state, but until a person whose judgment is impaired actually invades or assaults another’s body, rights, or property, he should not be punished, and the act of consumption itself should be free from regulation as an application of the right to do to one’s body as one chooses. The criminalization of a victimless activity itself is by no means a necessary restriction of liberty, as all restrictions of liberty must be.
And in any event, does not the action of watching an intense football rivalry increase the chance that an individual will harm another? Is the violence in football morally acceptable because the government permits it, or because the participants choose to waive certain natural rights? Lest one think that the government would have the sense to stop at criminalizing drunk driving and leave activities such as attending football rivalries unregulated, consider that many jurisdictions ban the ownership of German shepherd dogs, a breed described by the American Kennel Club as “energetic and fun-loving . . . very fond of children . . . a loyal family pet and a good guard dog, the ideal choice for many families.” If German shepherd dogs can be banned, then what other breeds as well? Golden retrievers? Beagles? Chihuahuas? Dogs altogether? The purpose behind this discussion is that justifying the criminalization of certain actions on the grounds that they increase the likelihood of harm to others, but fall short of causing actual harm, is hopelessly subjective and opens the door to the regulation of practically any activity the government chooses. It opens the door to totalitarianism.
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More fundamentally, why should the government be criminalizing activities, such as driving without a seatbelt, which are merely risky to ourselves? Laurence M. Vance writes,
Seat belt, helmet, and texting laws are predicated on the idea that we need the state to protect us from doing something stupid. But it is families and friends that should be the ones persuading people to buckle up, wear a helmet, or turn off their cell phone, not the state. But they won’t do it, some say, and therefore the state has to do it. But this presupposes that the state cares more about an individual than do his family and friends—a very dubious proposition.5
Why should this sphere of activity—convincing our loved ones to lead healthier and safer lives—come within the coercive power of government? What’s next? Government-mandated marriage counseling sessions?
A particular type of victimless crime demands particular attention: Crimes which punish consensual actions between individuals. In order to be considered harm, a “violation” of natural rights must be nonconsensual, since if the recipient of that “violation” consented (assuming he was mentally capable of doing so), he was simply exercising his own liberties, and there can therefore be no victim and no violation of natural rights and hence no crime. This accounts for the difference between consensual sexual conduct and rape, and tackling during a football game and aggravated assault.
Sadly, the criminalization of consensual conduct has historically been one of the primary means by which societies have enforced their own moral values upon others. Such was the case for centuries with sodomy laws, which punished the intimate sexual actions of consenting adults. What legitimate interest could society possibly have in regulating what types of harmless physical interaction may be engaged upon in the privacy of the home? Not only is the public not affected by such actions, but the public would not even know that such actions were taking place. Such laws have nothing to do with preventing harm, or even benefitting a certain group, but merely imposing the collective values of the majority upon the minority in an area of human behavior that should be immune from government regulation, as it does not assault natural rights. Thus, they are at their base arbitrary restrictions of fundamental liberties, that is to say, restrictions which do not address harm.
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What Is Offense?
Offense, on the other hand, is merely an affront to another person’s senses or subjective sensibilities. This difference is related to the distinction between malum in se and malum prohibitum. Malum in se refers to an action which is “evil in itself ”; it is a violation of the Natural Law, and therefore needs no explanation or justification for why it is evil. Its evil is, in other words, self-evident. Why is infanticide evil? Although one could write volumes reasoning why it should be criminalized, every single human inherently recognizes its evil. Malum prohibitum, by contrast, refers to an action which is wrong merely because the government tells us it is wrong. Harm falls into the former category, whereas offense falls into the latter; it is offensive to us merely because of our cultural upbringing, or because someone in the government simply told us that we should be offended by it. Why should sautéed cockroaches be offensive for any reason other than our dietary customs? One of my Fox colleagues knows a Vietnamese lady who was offended and disgusted by cheeseburgers when she first immigrated to America!
Let us return to Feinberg’s bus and its unsavory passengers. While the passengers’ conduct is, at times, highly offensive and extremely unpleasant, their conduct is ultimately harmless, or in other words, it falls short of violating any natural right. Although their actions may be quite reprehensible, the characters on that bus are no more deserving of criminal punishment than putting one’s elbows on the table during dinner.
According to Professor Feinberg in his magnum opus The Moral Limits of the Criminal Law, the unpunishable offenses perpetrated on the bus can be categorized in six ways. The malodorous, strobe light–carrying, stereo-blasting man is an affront to the senses. This infliction to the senses may be annoying and perturbing, but you can plug your nose, close your eyes, and cover your ears—or more simply, catch the next bus.
The second category compels feelings of disgust and revulsion in the spectator and includes the drooling, burping picnicker of cockroaches and rotten eggs. These unfortunate reactions are not affronts to the senses, but rather affronts to subjective sensibilities. You may be sickened or nauseated, but the behavior does not, however, add up to harm. While disgust and revulsion are disagreeable emotional effects, again, one can look away from the woman so as to avoid a sour stomach or catch the next bus. Moreover, such subjective sensibilities are often the product of one’s local culture and familial upbringing. It is no more logical to criminalize the picnicker’s conduct than to criminalize the selling of foie gras (as Chicago did in 2006),6 fried frog legs, or bull testicles (euphemistically known as rocky mountain oysters), as repulsive as they may seem to some of us. Not surprisingly, the criminalization of offenses can be used to discriminate against cultures which cannot command a political majority, such as when Parliament banned the playing of Scottish bagpipes in 1747 after the final suppression of the Jacobite risings one year earlier.
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While the second category could be called affronts to “lower order sensibilities,” the third category involves shock to moral, religious, and patriotic sensibilities, or “higher order sensibilities.” These are higher emotional responses digging deeper than mere gut reactions such as disgust and revulsion. This type of offense is a gross violation of some kind of neighborhood principle, including the bus’s pallbearer who wears offensive religious clothing or who desecrates the country’s treasured symbol. As a religious individual, you may be deeply offended by the religiously offensive T-shirt worn by the youth; however, his behavior in no way harms you personally. Moreover,
since desecration of the American flag is purely symbolic, criminalizing it is really just another way of punishing a thought and the expression of an idea. It is a flag burner’s distaste for the United States, and not the actual destruction of a material thing, which people find so repulsive. And if the government has the ability to regulate our thoughts—the innermost realm of the individual—then we truly have no freedom whatsoever.
Extreme deviations from prevailing standards of “normalcy” induce feelings of shame, embarrassment, and anxiety, which are encompassed in the fourth category of un-punishable offense. The overly affectionate and sexually inappropriate couple on the bus is a prime example. Their actions constitute ordinary and acceptable ways of deriving sexual pleasure when done in private; however, in public, a viewer may feel temptations of voyeurism, which trigger feelings of shame, embarrassment, anxiety, and envy. Your body, your rights, your property, however, are not violated as a witness.
It Is Dangerous to Be Right When the Government Is Wrong Page 30
