I was thinking about this discussion, and there’s another detail that seems important to me. I agree that these laws entail some enforcement (that is, while aspirational, they’re not purely aspirational), and I agree with you that if they were totally and intentionally unenforced they would bring about a more general disrespect for the law by showing our lack of seriousness about it or its inefficacy. That said, some notion of the public and private realms should temper how laws are enforced and how “morals legislation” generally should do its work. In other words, legislation against gambling halls, strip clubs, sodomy, or whatever–setting aside the merits of any of these laws–tends to prevent the public and open exercise of these things. None of these laws necessarily affects private behavior, which should continue to have its traditional constitutional protection. This is important because public and open behavior tends to make things that are otherwise harmful or looked down upon more normal and therefore less shameful; ultimately, these behaviors will be more widely practiced if they are done so openly. Tthe community, by permitting them, may be seen not to condemn these behaviors. Thus, if the effect of these laws is merely to move certain behavior into the private realm, that would count as a victory and a useful outcome–consistent both with people’s rights and the community’s need for order and standards. I believe this is a fair assessment of how much of this legislation has worked both in the past and in the present. A broad notion of tolerance for what goes on in private, even for petty illegal behavior, that does not openly show contempt for the community and its laws, is an important concomitant of a free society. Even if there were no laws on any of these subjects, what one should feel free to do in public as a matter of prudence and respect for the need for community values should be more circumscribed than what one does in private.

Then you can take issue with Roach, who said, “Tell me the next time someone gets prosecuted for suicide, polygamy, or a host of other on-the-books statutes that are largely aspirational in nature.” I was only going by his own characterization of these laws.

Wade: “Now, there is an entirely independent issue raised by James — does the mere existence of such laws, while not requiring expensive enforcement, tend to result necessarily in expensive enforcement, just by the way politics and society works? . . . I would agree with James that the answer tends to be yes.”

Excellent, we are agreed. (The bit on libertarianism we are not, for all the reasons that were painstakingly examined before.)

Roach: “I agree with Wade’s previous remarks. I don’t accept James’ essentialist view of how these laws require increased enforcement and a ‘big state,’ though I concede they may give ammunition and justifications for those that favor such a regime.”

You should re-read Wade’s exact statement, especially the “tend to result necessarily in expensive enforcement” part. I don’t think you agree.

Roach: “Laws have several functions, one of which is to codify community sentiment.”

As Trager said, there are other ways to achieve this, even aside from private action alone. With criminal laws especially, there is no recourse but to engage police or prosecutorial resources at some point. If the law is truly a dead letter, then it spreads the notion amongst the population that laws aren’t really that big a deal and/or that enforcement is arbitrary and capricious. So the laws HAVE to be enforced at some level to maintain the authority of law. None of these laws “do their work automatically,” because words alone will not curtail human action. Enforcement is an inevitability. The only question is one of degree.

Again, I note my amusement over Roach advocating morals-based legislation without enforcement. Maybe this is all just some kind of last-gasp appeal to small government.

In a free society at least, laws should protect one’s rights in one’s own person and property, and they should be enforced as efficiently and uniformly as possible. And that’s it. I’m with Frederic Bastiat on this one.

Finally, anti-suicide statutes are very, very dumb. And while I’m not a cheerleader for polygamy, I hardly think it’s “illiberal,” “anti-democratic,” or “un-American.”

Laws have several functions, one of which is to codify community sentiment. They do this automatically and without the necessity of a huge enforcement arm. For things that are necessarily public–strip clubs, gambling halls, etc.–they do most of their work automatically and do not necessitate a megastate. For other activities–it seems especially in the case of drug and alcohol prohibition–such laws tend to encourage increases in government.

Good for Utah on the polygamy prosecutions; polygamy is illiberal, anti-democratic, and un-American. I’ll guess Utah didn’t hire any extra police and prosecutors to handle this burden, however.

My own view is similar to Roach’s. But, as is often the case, the issue is a complex one, and there are numerous laws in the gray area between murder and sodomy that might be good on the books, but that don’t require some huge, centralized enforcement regime. An example is anti-suicide statutes, which Roach mentioned.

Now, there is an entirely independent issue raised by James — does the mere existence of such laws, while not requiring expensive enforcement, tend to result necessarily in expensive enforcement, just by the way politics and society works? (This would be similar to how a radical libertarian politics does not by its essence require, but does tend to necessarily result in, an authoritarian or totalitarian crackdown.) I would agree with James that the answer tends to be yes. Perhaps the upshot of this is that we should look more favorably on laws that tend NOT necessarily to have this result (like anti-suicide statutes), and less favorably on laws that do (like anti-marijuana statutes). Of course, one could still argue that certain prohibitions (perhaps of crack cocaine?) are so important that we need the laws, regardless of the risks associated with the attendant enforcement regime running amok.

And indeed, in your last post, you are quite right that it’s a “have cake and eat it too” situation for conservatives to pretend that more morality-based laws can coexist with small government. As the ability to enforce such laws improves, the temptation to dedicate resources to that task is inevitable. Are we really supposed to believe that conservatives advocate passing laws that they have no intention of enforcing? If only it were true!

Sure, some morals-based laws don’t get much shrift because the masses view those laws as public jokes, but this notion that such laws can’t or won’t incur huge costs is just silly in light of Prohibition, the drug war, gambling, and other examples. I find it rather funny to hear those who favor such laws suddenly arguing that the main effect of the laws is to be “aspirational,” and not enforced. Please. Enforcement costs will duly increase with the ability of the goverment to convince the people that more enforcement is warranted, and with conservatives (who wanted the laws on the books in the first place) decrying the effect of benign neglect on our country’s “moral fabric,” there will always be a push to increase the amount of resources expended on these things. The reason that suicide isn’t charged very often isn’t because the law is merely meant to be “aspirational,” it’s because prosecutors and legislators know that they will lose credibility if they put as much effort into enforcing that law as they do marijuana possession. Which should be leading people to wondering why the heck we waste ink on these laws at all.

Also, the fact that the welfare/regulatory state sucks up more money does not mean that morals-based legislation can’t become “big government.” The main price paid by enforcement of those laws is in violations of the 4th, 5th, and 6th amendments, not to mention other constitutional concerns (such as the drug war’s breach of the commerce clause). Wiretaps, pen registers, surveillance cameras, secret subpoenas, and other tools may be fairly cheap on the whole, but they come with a heavy price.

Now, admittedly none of this addresses the question whether aspirational “morals legislation” is desirable, but it does demonstrate that such legislation can in fact exist in the absence of big government.

In America, enforcing laws against murder isn’t terribly expensive or destructive because almost everyone already considers murder morally wrong. Despite the ubiquitousness of gory TV shows and movies, people who seriously want to murder or rape anyone else constitute an infinitesimal percentage of the population.

Alternatively, many millions of Americans DON’T consider abortion morally wrong (at least in early pregnancy). Therefore, simply outlawing abortion would mean thousands of women each year having illegal abortions. Enforcing laws that criminalized abortion entirely would require massive government spending and routine Bill of Rights violations. Even then, it would probably be as successful as drug prohibition is today.

Conservatives who think you can have small government AND moral laws (in the religious sense) want to eat their cake and have it, too. It can’t be done.

Leif: Yes, conservatism is inherently reactionary, which is why it’s been the libertarian side of the GOP that has been coming up with new ways of looking at things, giving the party as a whole a heft of intellectual vigor that the Democrats don’t have. If you’ve noticed, the Democrats have turned wholly reactionary as well, scrabbling to protect what they can of the New Deal. That has made them less intellectually compelling. And it gets even worse for that (growing) part of the party that seems to only care about bashing the GOP rather than daring believe in anything but simpleminded tropes.

Roach: Sure, moral legislation only requires ink and a statute book…as does any other law. You seem to think that it’s typical for government to pass a law and then not bother to expend the necessary resources to enforce it. That is wishful thinking, but the drug war alone proves it wrong. The government tends to believe that failure to enforce a law implies to the general population that laws aren’t really that big a deal. And there will always be moral crusaders who believe that allowing any drug use (or alcohol use, or abortion, or gay marriage), even through benign neglect, is absolutely intolerable. These are elements that “corrupt the moral fabric of society,” don’t you remember? What’s a few-score billion and less individual freedom compared to protecting that?

In short, your notion that morals legislation doesn’t necessarily lead to enforcement of that legislation is, kindly, laughable.

The drug thing too is a question of priorities. Drugs can be illegal, and we can also spend less to enforce those laws than we do now. Two separate policies are at work in (1) making them illegal and (2) allocating law enforcement funding to the effort. Whether or not this effort inherently leads to a “war on drugs” and big spending is still a separate issue from the fact that 19th Century era legislation on “blue laws,” abortion, gambling, etc. did not require a megastate to be enacted or to enforce.

I’m not sure I get that. Is it libertarian ideology that has motivated Republican politicians to propose, and achieve, a massive expansion in the Department of Education? Or a huge increase in Medicare? Or the Patriot Act and other civil liberties abuses? Or more foreign aid? Etc., etc.

The one area with a serious libertarian imprint is Social Security reform. But, of course, many Republicans in Congress still don’t support that either.

Otherwise, I don’t see much “intellectual vigor” amongst Republican leaders. I do see a lot of pandering, rationalizing, and powerlusting though.