There Oughtn’t to be a Law

If you’ve ever said to yourself, “there ought to be a law,” you should probably rethink that position.

In the first place, there probably is a law that governs whatever you are up in arms about. As I’ve noted before, there are literally so many federal criminal laws that nobody can even say for sure how many there are. And, because federal agencies have the authority to issue rules and regulations, there may be as many as 3,000 administrative regulations that carry criminal penalties. Then, of course, are the state laws. Traditionally, federal criminal law was limited to very particular sorts of crime inherently related to the federal government (counterfeiting, for example.) As a result, the vast majority of criminal laws were promulgated at the state level. The tremendous “federalization” of criminal law hardly did away with did any of the state laws (with rare exceptions of federal preemption), and so there are far more laws now than ever.

Secondly, and more importantly, even where there is not a statute that directly addresses a particular set of circumstances, existing common law still applies. Common law is court created law (or “court discovered law” if you are a serious believer in the natural law and the power of common law courts to divine the eternal precepts thereof.) Common law is developed over time by the courts relying and building upon past rulings. In the words of Montaigne, “in rolling on [laws] swell and grow greater and greater, as do our rivers.” So, for example, there may not be a statute that requires above-ground pool manufacturers to include warnings against diving, but case law almost certainly creates such a duty. Similarly, there may not be a statute or regulation preventing breakfast cereal manufacturers from putting a certain poison in their foods, but there doesn’t need to be; established negligence and products liability case law provides substantial protections for consumers.

And finally, law is quite often not the proper mechanism to achieve your (no doubt noble) aims. In the words of Jeremy Bentham, “Every act which promises to be pernicious upon the whole to the community (himself included) each individual ought to abstain from of him: but it is not every such act that the legislator ought to compel him to abstain from.” In part, law is not an adequate solution to many problems because it is always enforced by violence or the threat of violence, and that violence has its own costs.

Next time somebody says “there ought to be a law,” ask whether they are certain that there is not some statute, regulation, or common law that does not already cover the subject matter. And, regardless of whether such a law exists, ask whether there is not some better, non-legal remedy for the perceived problem.

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Beer of the week: 12th of Never Ale – The idiom “on the 12th of Never” is used to express improbability. And, improbable as it may have seemed years ago, Lagunitas has been started putting their beer into cans. This, the first aluminum encased offering from Lagunitas, is a cloudy, straw-colored pale ale. There is lots of pineapplely hops, and a nicely rounded flavor. An excellent beer, even if it does come from a can.

Reading of the week: An Introduction to the Principles of Morals and Legislation by Jeremy Bentham, Chapter XVII§1, VIII-XV – In this excerpt, Bentham opines that drunkenness and fornication are among the pernicious behaviors that laws are ill-suited to preventing. “With what chance of success, for example, would a legislator go about to extirpate drunkenness and fornication by dint of legal punishment? Not all the tortures which ingenuity could invent would compass it: and, before he had made any progress worth regarding, such a mass of evil would be produced by the punishment, as would exceed, a thousandfold, the utmost possible mischief of the offence.”

Question for the week: If you could repeal any law, what would it be?


Void Where Prohibited

In the 1860s, the Supreme Court of the United States heard the case of McGuire v. Commonwealth. Mr. McGuire was prosecuted and convicted for retail distribution of liquor in Massachusetts, where the so-called “temperance movement” had taken hold. Regardless of his federally issued license to sell liquor, Mr. McGuire was indicted and convicted of selling liquor in violation of state law. At the Supreme Court, his attorneys argued that the federal power to sell licenses for the wholesale of liquor preempted the power of the Commonwealth of Massachusetts to effectively nullify those licenses by prosecuting those who attempted to use them. If the states could do so, they would essentially hold the power to excuse themselves from the authority of Congress on any taxation and licensing issue. Their arguments were not availing.

Although the heart of the legal issue was the relationship between federal and state power, Messrs. Cushing and Richardson, the attorneys, were at their best in arguing against temperance laws on their own merits. They argued persuasively (especially to those of us with the benefit of hindsight) against prohibition. Many of their points are worth consideration for how prescient they were and how applicable they remain.

1. It is not true, as alleged, that wines, fermented liquors, or even distilled spirits, are poisons of themselves, otherwise than that everything we eat or drink may be deleterious if used in excess.

It is always striking how the word “temperance” is always used to mean “abstinence”, while the word itself surely implies “moderation.” And not only is alcohol not an evil in itself, it has health benefits as will be seen later.

2. In view of the example and injunctions of our Saviour and his Apostles, in this respect, it cannot be true that the use of wine is immoral of itself.

Rumor has it that there are actually certain Christian sects that claim that when Jesus turned water into wine that it was non-alcoholic because it did not have time to ferment. As if Jesus’s power was limited to changing water into grape juice and was insufficient for turning sugar into alcohol and carbon dioxide.

3. It is not true, as pretended, that it is our duty to abstain utterly from any object of health or enjoyment because others may abuse it. The effect of this doctrine would be to deprive us of everything desirable, even the dearest of all human relations; since nothing exists for the use of man which some men will not abuse.

This is a very similar argument to the one made in an earlier post on this blog about prohibitions on gambling. Viz. the fact that some people are unreasonable is not a sufficient reason to ban reasonable people from X.

4. It avails nothing to make war on the sale of distilled spirits; for spirits may be distilled in every man’s kitchen, by means as cheap, as accessible, and as manageable as the preparation of a cup of tea or coffee; and if it were not so, other anaesthetic agents exist, which the law cannot reach, such as opium and bang, the familiar means of intoxication used by more than half of the human race, to say nothing of the professed anaesthetic medicaments.

There are two arguments here, both of which are commonly advanced regarding the prohibition on hemp. 1. Despite the insane amount of money spent on the “war on drugs”, hemp is still easy to grow or otherwise obtain, and 2. cracking down on any given drug drives people to other drugs, often more dangerous ones. Many people have observed that if hemp were more available and accepted, that would be a tremendous step toward overcoming the current opioid crisis.

5. The universal prevalence of the use of one or another object of this nature, in all ages, all countries, and all states of society, serves to show that they satisfy a physical exigency of man’s organization as imperative as that of food, and of course laws cannot eradicate, although they may regulate, such use.

Ah yes, the biological imperative to get impaired. People have always self-medicated for depression, anxiety, and all of the other conditions for which we have only lately had names. Wine may not be the best medicine for these maladies, but it is also far from the worst.

6. It shocks the sense of mankind, to prohibit absolutely by law the use of wines, fermented liquors, and distilled spirits as a healthful beverage in moderation of use; and the effect of such laws, if rigidly enforced, would only be to introduce by the side of the vice of drunkenness, the worse one of universal hypocrisy.

Again, the parallels with arguments over legalized hemp are stunning. Several states have decriminalized hemp specifically for medicinal use. Those who would impose a total ban on hemp “for the public health” are surely hypocrites in this regard.

7. It confounds all distinction of right and wrong, in the acts of instructed men, and in the conscience of the less instructed, to seek to elevate the use of wine to the dignity of an illegal and immoral thing, for the suppression of which all the energies of society should be tempestuously exerted.

There is a lot going on here. In the first place, there is an important misrepresentation of the law. The laws of prohibition (be they alcohol, hemp, opium, etc.) traditionally do not criminalize the use of the product. It is not illegal to consume hemp, it is illegal to have hemp. This distinction is important because laws properly curtail actions rather than things. One should always remember that when a law purports to ban a thing, it is actually banning you from doing something. All bans are essentially limits on personal freedom.

Secondly, they touch on the amount of government effort that would be required to actually suppress the consumption of alcohol. The combined effect of alcohol prohibition and the “war on drugs” set back society immeasurably, if only because of the tremendous waste of money and manpower on the (attempted) enforcement of these laws.

The so-called temperance agitation has effected no abatement, in the whole, of the use or abuse of intoxicating drinks, and in the end will probably produce, by recoil, a state of things worse than that which existed before the agitation. No superiority then over the nation is due to those legislators of Massachusetts, who pretend to be “more powerful than Nature, wiser than Truth, better than God.”

Hear, hear!

Beer of the week: Lakefront IPA – It is a new year, but not a new beer. I’ve had this Milwaukee brew several times, and occasionally on-site at the Lakefront Brewery. The head leaves plenty of good lacing on the glass. The flavor is quite balanced, with a solid malt body layered with plenty of juicy hops. Lakefront are certainly doing good work.

Reading of the week: McGuire v. The Commonwealth, 70 U.S. 3 Wall 387 (1866) – There are some people who think that government regulation is the solution to every societal problem. But positive law is extremely limited in what it can accomplish. As the learned counsellors argue: “English and American society has been floundering along from one folly to another in the paths of false theory and unphilosophical legislation, under the influence of the idea that statute law is the all-sufficient remedy of every sort of human infirmity; an idea which is itself the special human infirmity of the well-intentioned people of New England.”

Question for the week: The temperance movement was led by Christians. What is the strongest scriptural basis for a policy of teetotaling?


Intemperate Minds

Freedom is an oft recurring theme on this blog. Often the subject is freedom from economic restrictions or government imposition. But there are other forces out there that restrict one’s freedom. For some people alcohol is one of those forces. As the members of Alcoholics Anonymous put it, “we are powerless over alcohol [and]… our lives have become unmanageable.” The bondage of addiction hints at an important questions about liberty.

Edmund Burk wrote that “men of intemperate minds cannot be free. Their passions forge their fetters.” To be governed by ones passions or addictions is to be a slave. As a consequence, there are those who argue that certain substances and actions should be banned in an otherwise free society. Liberty must be preserved by prohibition. Although paradoxical, the logic is this:

The decision to give up one’s freedom is inconsistent with being a member of a free society.
Therefore, one may not choose to be a slave.
Freedom to consume alcohol is the freedom to become an alcoholic.
But to be an alcoholic is to be a slave to alcohol.
Therefore, a free man may not consume alcohol.

Of course there are other arguments put forward by prohibitionists, but this rationale is the most interesting to me: freedom to drink (or use drugs, or buy sex, or smoke cigars) is false freedom since it leads to intemperance. And intemperance, as Burke said is slavery. So to prevent people from becoming slaves to their passions, they must be denied the freedom to drink (or use drugs, or buy sex, or smoke cigars).

One might argue that the word slavery is being thrown about a little too freely here. It may be a mistake to conflate slavery to addiction with chattel slavery. However, there are certainly those who believe that slavery to alcohol is as bad as actual slavery. As Frederick Douglass wrote “we had almost as well be slaves to man as to rum.” Both an escaped slave and a teetotaler, Douglass looks at the issue from an interesting perspective.

Although I have never been an addict or a slave, I do not think that slavery to alcohol is really comparable to chattel slavery. Further, I do not buy the argument that the only way to ensure freedom is to prohibit things that might lead to dissipation. In fact, I think that it is quite the opposite.

But this is not a new debate. After all, the first prohibition was on eating apples. So why did God put the tree in the garden if he knew that to eat from it was to die? Because, as the serpent pointed out, if there is no choice then there is no liberty.

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Beer of the week: King Cobra Premium Malt Liquor – The serpent convinced Eve to eat of the fruit, so it can probably convince somebody to drink malt liquor. Malt liquor, as it turns out, is the sort of thing that alcoholics (and poor ones at that) would drink. As noted before, the designation of “malt liquor” in the United States basically just means “cheap, high alcohol beer”. A six pack of King Cobra is about 15¢ more that a sixer of Big Flats Light, but at 6% alcohol, this is the obvious choice for the drunk on a budget. That is until it is poured (although I think that it is more standard to consume King Cobra straight fro the can or 40 oz. bottle). This beer is very pale and very carbonated. Though the head fades very quickly, it is snow white and made of big bubbles, like a soda pop. It smells of cheap grain. The flavor is not as aggressively bad as expected. It has hints of apple juice and the strong carbonation leaves a pleasant fizzy tingle on the tongue. 

Reading of the week: Narrative of the Life of Frederick Douglass by Frederick Douglass – Just last week I wrote about how unreliable autobiographies can be. But I never said that they are not worth reading. In this passage, Douglass describes how slaves are given excessive amounts of alcohol to convince them that they are better off as slaves than they would be if they had to make their own choices. “Thus, when the slave asks for virtuous freedom, the cunning slaveholder, knowing his ignorance, cheats him with a dose of vicious dissipation, artfully labelled with the name of liberty.”

Question of the week: Does the above rationale for prohibition make sense despite its paradoxical nature? Are there other, more valid reasons to support prohibition?