It Bears Repeating: Vices Are NOT Crimes

One of the most important timeless lessons learned, then forgotten, then learned again, then forgotten again, and so on, is Lysander Spooner's famous maxim that "vices are not crimes".  And to forget this crucial distinction, is to ultimately lead to numerous evils, from 1) amoralism and nihilism on the one hand, and 2) the most egregiously tyrannical abuses and overreach of government power (from things like Prohibition, the War on (people who use a few particular) Drugs, the 21 drinking age, tobacco bans, media censorship, restrictions on sexual activities between consenting adults, etc. all the way to slavery, eugenics, and sometimes even full-blown genocide) on the other, typically disguised as either protecting the nation's "moral fiber", and/or "progressive" social engineering for the "greater good".  In truth, it is anything but moral or progressive.  Thus, individual rights must be inalienable, and the government should never stray from its original mission of protecting life, liberty, and property.  Once the natural right to self-ownership becomes usurped by the state, the very foundation for individual rights ceases to exist, and of course that invites all kinds of trouble, as history has so painfully shown time and again.

To quote Spooner, from his Vices Are Not Crimes; A Vindication of Moral Liberty (1875):

"Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another…In vices, the very essence of crime—that is, the design to injure the person or property of another—is wanting." 

"Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be…no such thing as individual right, liberty, or property; no such things as the right of one man to the control of his own person and property." 

"If these questions…are not to be left free and open for experiment by all, each person is deprived of the highest of all his rights as a human being, to wit: his right to…ascertain for himself, what is, to him, virtue, and what is, to him, vice…If this great right is not to be left free and open to all, then each man’s whole right, as a reasoning human being, to 'liberty and the pursuit of happiness,' is denied him." 

"What man, or what body of men, has the right to say, in regard to any particular action, or course of action, 'We have tried this experiment, and determined every question involved in it…not only for ourselves, but for all…And, as to all those who are weaker than we, we will coerce them to act in obedience to our conclusion?'" 

"[A] government, formed by voluntary association, would never have been thought of, if the object proposed had been the punishment of all vices…nobody…would voluntarily submit to it. But a government, formed by voluntary association, for the punishment of all crimes is a reasonable matter; because everybody wants protection for himself against all crimes by others." 

"It is a natural impossibility that a government should have a right to punish men for their vices; because it is impossible that a government should have any rights, except such as the individuals composing it had previously had, as individuals. They could not delegate to a government any rights which they did not themselves possess." 

"Nobody but a fool or an impostor pretends that he, as an individual, has a right to punish other men for their vices. But…everybody has a natural right…to defend his own person and property against aggressors…And government has no rightful existence, except in so far as it embodies, and is limited by, this natural right of individuals...It is only those who claim that government has some rightful power, which no individual or individuals ever did, or could, delegate to it, that claim that government has any rightful power to punish vices." 

"To punish men for their vices…is a sheer and utter absurdity for any government claiming to derive its power wholly from the grant of the governed…because it would be granting away their own right to seek their own happiness." 

"Everybody wishes to be protected, in his person and property, against the aggressions of other men. But nobody wishes to be protected… against himself…He only wishes to promote his own happiness, and to be his own judge as to what will promote, and does promote, his own happiness." 

"The object aimed at in the punishment of crimes is to secure, to each and every man alike, the fullest liberty he possibly can have—consistently with the equal rights of others—to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property…the object aimed at in the punishment of vices is to deprive every man of his natural right and liberty to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property."

"[People]…must be permitted to control themselves and their property… each man’s life is his own."

We ignore such sound advice at our own peril.

And we know that the late Peter McWilliams, author of Ain't Nobody's Business if You Do:  The Absurdity of Consensual Crimes in Our Free Society (1996), would certainly agree with Spooner 100%.

And to avoid any weaseling, dilution, or vitiation, via subjectivism, relativism, and/or denial of agency, of Spooner's (and McWilliams') basic maxim, we should clarify that only acts that objectively harm the person or property of nonconsenting others should be considered crimes in a free society. 

UPDATE:  People will undoubtedly ask, so what about children, or young persons below the legal age of majority?  Well, as John Stuart Mill had famously noted, such a maxim would not apply directly to them, at least insofar as consent is concerned.  But even then, to impose criminal penalties on the children or young people themselves (as opposed to the adults involved) for acts that are otherwise legal for adults while simultaneously denying them any agency to consent to such acts is the very height of hypocrisy.  And regardless, whatever age we set as the age of majority, for anyone above that age the maxim would apply completely, full stop.  In other words, in a free society, once you are an adult, you are an adult.  That is something most of the world understands.

Also, as Emile Durkheim famously said, "When mores are sufficient, laws are unnecessary. When mores are insufficient, laws are unenforceable".  From another angle, that is a good argument against the other side's specious claim that our society is currently somehow too immoral, weak, fractured, spoiled, undisciplined, individualistic, heterogeneous, or whatever to trust people with personal liberty and bodily autonomy.

And finally, there is that classic Pigouvian argument from externalities.  The best response to that is that it is literally impossible for humans to exist at all without imposing both positive and negative externalities on others to one degree or another.  So arbitrarily designating select vices as crimes is both over- and under-inclusive.  And externalities are generally better dealt with via education, persuasion, and mutual consent, or failing that, via targeted taxes and subsidies.  Prohibition is far too blunt an instrument to deal with most externalities, and typically does far more harm than good in practice. 

More Evidence That Targeting Actual Problem Drinkers Works

As South Dakota's 24/7 Sobriety Program has been studied and exported to more and more places, both in the USA and abroad, its success is becoming increasingly evident.  A recent study further confirms the program's effectiveness very well indeed.

This program, where people convicted of (and/or out on bond for) alcohol-related offenses such as DUI, drunk violence/assault, and stuff like that are required to be tested twice daily or continuously for alcohol for a period of time, usually 120 days, is essentially a way to coerce abstinence among known problem drinkers by revoking their "license to drink".  Those who fail a test or fail to show up for the test are swiftly, certainly, and yet modestly penalized, typically with a day or two in jail and perhaps a small fine.  The results have been impressive, with significantly reduced death rates among participants.  Previous studies have also found reductions in recidivism as well as reductions in all-cause death rates among the general population and reductions in domestic violence and related deaths.  In other words, it's cheap, well-targeted to actual problem drinkers, and highly effective and beneficial in many ways.

Twenty-One Debunked supports this idea, and has for a while now.  Another promising idea, would be similar to what parts of the Northern Territory of Australia, as well as parts of Western Australia, currently have:  something called the Banned Drinker Register (BDR).  It is exactly what it sounds like, and targets actual problem drinkers individually only, with no collateral damage to non-problem drinkers.  This can also be paired with the 24/7 Sobriety Program for those convicted of drunk driving, drunk violence, drunk vandalism, or repeated disorderly conduct violations.  In addition, problem drinkers can also have themselves voluntarily added to the blacklist for a fixed period of time, much like problem gamblers are currently allowed to do. (Call it "86 Me" or something like that.)  The late Mark Kleiman would certainly have approved of that as well.  And aside from the downside of ID checking of all buyers that would be required to enforce the BDR (not radically different from the status quo), it is actually the most libertarian policy that there is.  Libertarian purists, of course, would probably only support the South Dakota style 24/7 program and the voluntary blacklist, and that would be fine with Twenty-One Debunked either way.  It's certainly more libertarian than Choose Responsibility's highly quixotic proposal.

In other words, there is no need to punish the many for the excesses of the few.  And swift and certain justice need not be excessively severe, thus resulting in less crime AND less punishment at the same time.

Additionally, we know now that, while all policy measures have their hard limits, the most time-tested, efficient, effective, and cost-effective one of all is to simply raise the price of alcohol, generally via taxation.  Wayland Ellis has pointed that out several times, and it is the one thing that he and the polar-opposite Philip N. Cook can agree upon.  The late Mark Kleiman also made a similar argument years ago.  Alcohol taxes and prices have been lagging behind inflation for decades in the USA, so therefore the lowest-hanging fruit to make headway against America's growing drinking problem is to raise such taxes.  In fact, if set high enough, practically no other alcohol regulations or restrictions are needed at all. And dovetailing with the aforementioned ideas, even this one's burden falls primarily on the heaviest drinkers, as simple math would have it.  So as long as it is not ridiculously high, it is also well-targeted.

And of course, let America be America again, and lower the drinking age to 18.  If you're old enough to go to war, you're old enough to go to the bar.  'Nuff said.

A Cautionary Tale

The modern day Prohibitionists, and even tobacco control advocates more generally, used to frequently laud the example of Bhutan back in 2004 and for many years after.  And yet now?  Almost nobody talks about them anymore.  So why is that?

Bhutan, the only country in the 21st century that had completely banned tobacco across the board, has failed so miserably in doing so (thanks to the black market and international smuggling, and despite very stiff penalties too) that they ended up reversing their ban in 2021, largely out of fear that rampant cross-border smuggling would.... increase the spread of Covid.  Seriously, you cannot make this stuff up!  This should really be a cautionary tale for anyone contemplating any new (old) forms of Prohibition, whether for tobacco or otherwise. 

And it's not like Bhutan is a historical anomaly either, as outright bans on tobacco products have been tried (and failed) before repeatedly for centuries in various countries, including right here in the USA at the state and local level from the late 19th century to 1927.

So much for the illusion of control. 

Twenty-One Debunked has repeatedly discussed in depth the quasi-special case of tobacco/nicotine and how highly nuanced it is.  And yes, it is far more nuanced than either side of the debate likes to admit.  Tobacco/nicotine straddles the fine line between soft and hard drugs, is both subtle and dangerous at the same time, and thus ultimately defies and transcends any simplistic solutions like "just ban it already!"

If alcohol, tobacco, and cannabis were all legal, and you had to pick ONE of those to ban, tobacco would logically have to be it, hands down.  It is, by far, the least useful and most harmful (and deadly) overall of the three.  It is the ONLY currently legal product that, when used as directed, will kill half of those who buy it.  It's thus not even a contest.  Additionally, it is NOT a truly recreational drug, and its inherent addictiveness actually tends to subtract from one's overall freedom and autonomy rather than enhance it.  And the majority of those who use it ultimately regret doing so.  That said, it still doesn't follow that a complete ban is a wise idea, in theory OR in practice. 

It is worth noting that even those who were serious about phasing out tobacco in the West have been, until very recently, gradual and gingerly about it.

Not only is this a cautionary tale regarding tobacco, but also by extension other substances and vices as well.  It is a historical truism that punishing the many for the excesses of the few has NEVER ended well at all, and ultimately does far more harm than good.  Those folks advocating new (old) forms of Prohibition need to be VERY careful what they wish for! 

It bears repeating:  vices are NOT crimes.  Any confusion of the two invites trouble. The late, great Lysander Spooner was a wise man indeed, and we ignore his timeless advice at our peril.

As President Ronald Reagan famously said, "Freedom is never more than one generation away from extinction".  And in light of the past few years alone, that quote doesn't really seem to be an exaggeration. 

UPDATE:  Apparently according to Wikipedia, Turkmenistan (since 2016) and Taliban-ruled Afghanistan (since 2022) have also banned tobacco.  Though the former has not fully gone into effect yet, and the latter is not exactly a good role model.

Failing The Martian Test

The famous "Martian Test" is really quite simple:  that is, can you hypothetically explain your position to a Martian without sounding like a complete idiot?  The 21 drinking age (and smoking age, toking age, etc.) clearly fails that test, big time.

If a given substance (regardless of what it is) is allegedly so apocalyptically dangerous that legal adults age 18-20 must be categorically banned from using it, thus arbitrarily carving out a three year exception to the age of majority, because reasons, backed by the full force of the law, why the hell is it even on the market at all in the first place?  

Any answer justifying this bizarre state of affairs would thus fail the Martian Test:

If you have to literally invent new laws of nature in an attempt to explain why, that fails the Martian Test (and also fails Occam's Razor as well).

If you have to appeal to either tradition OR novelty, or indulge any other logical fallacies whatsoever to support your thesis, that fails the Martian Test.

If you speciously claim that 18-20 year olds are too fragile and/or immature to be trusted with full adult rights and bodily autonomy, but have no problem with sending them to war, executing them, trying them as adults, etc., that fails the Martian Test. 

If you have to selectively (ab)use the precautionary principle, ad hoc, that fails the Martian Test. 

If you have to cherry-pick the puny molehill of mainstream OR fringe "evidence" in favor of such restrictions while ignoring the massive mountain of evidence against such, that fails the Martian Test.

If you have to be disingenuous or intellectually dishonest in any way, including citing long-debunked fatally flawed "evidence", you fail the Martian Test. 

If you have to resort to trolling or temper tantrums when you clearly lost the argument, you fail the Martian Test.  And you are a sore loser as well.

If you have to resort to some flavor of "do as I say, not as I do", you utterly fail the Martian Test.  And you prove yourself a flaming hypocrite on top of that.

(Ditto if you point out the mote in your opponent's eye while missing the log in your own.)

If you resort to the "weaker brother principle", which easily devolves into the "tyranny of the weaker brother", especially if you do so selectively, guess what?  You still fail the Martian Test, big time.

And finally, if you appeal to "pragmatism" to justify it, you may very technically pass the Martian Test by the very skin of your teeth, but at the cost of utterly compromising one's moral principles.  Either way, it's not very flattering at all, buddy.  Checkmate.

Now get down off of your high horse, admit you were simply a bigot all along, apologize, and make amends.

QED

UPDATE:   One should note that arguments which favor some version of "punishing the many for the excesses of the few" technically do not always fail the Martian Test, but are still highly unethical regardless. 

A Better Way To Phase Out Tobacco

California is now seeking to emulate New Zealand, Norway, Singapore, and the Philippines in phasing out tobacco products with a permanent generational ban on the sale of such to anyone born on after January 1, 2007.  Twenty-One Debunked has generally opposed such an idea on principle, as we had discussed previously.   Not only is it inherently ageist, and further promotes black markets, but it will drag it out and take decades to have the desired endgame effect.

Here's a better idea, that the FDA is already currently considering:  Reduce the maximum allowable nicotine levels in commercial cigarettes, and perhaps other combustible tobacco products, to a non-addictive or sub-addictive level.  This idea, or at least some flavor of it, has long been endorsed by many stakeholders and pundits the world over, from the American Medical Association to Robert N. Proctor to Malcolm Gladwell.  And Twenty-One Debunked has endorsed it since 2013, ideally keeping the legal age limit at 18 (which Congress and Trump unfortunately raised to 21 in late 2019, much to our chagrin).

By that, it means reducing nicotine levels by 95% or so from current levels, down to no more than 0.5 mg/g (0.05%) of tobacco.  Crucially, this would apply to nicotine content, not "delivery," as the latter can be gamed and manipulated too easily.

If done smoothly and gradually enough, and leaving noncombustible tobacco and nicotine products untouched, this will dramatically reduce smoking rates for all ages, and thus save thousands if not millions of lives without creating any more of a black market than already exists from high cigarette taxes alone.  Pairing it with a tax hike (within reason) would also increase its effectiveness as well.

Even if the new nicotine limits applied only to the sale of pre-rolled cigarettes and quasi-cigarettes like little cigars, and nothing else, it would likely still have the desired effect.  That is because those are the products that really drive the deadly tobacco epidemic.

It could be done in either one step with some lead time, or a few steps over a period of months to a year or two, for all cigarette manufacturing and importation going forward, plus an additional year to clear out excess inventory.  Doing it in a few steps would probably be better overall we think.  Either way would probably be fine though. 

Banning the use of additives, which are largely all about increasing the addictiveness of the products, would also make sense as well.  Michigan already has an excellent law on the books, that bans any "deleterious" ingredient or anything "foreign to tobacco" being added to cigarettes.  It needs enforcing.

Redesigning the cigarette to have a more alkaline smoke pH of 8 or higher, as it typically was prior to the 20th century, would make it less appealing and harder to inhale at least for new smokers.  Most cigars and pipe tobacco are already like that currently. 

And for the love of all that is good, ban the use of radioactive phosphate fertilizers yesterday!

Another good idea would be to only allow tobacco products to be sold in designated or dedicated tobacco-related stores (i.e. smoke and vape shops) and/or places that one needs to be 18+ to enter.

As for nicotine vapes, capping the maximum nicotine content at current European or Israeli levels (lower than USA levels but still generous) would reduce overall nicotine addiction rates without driving vapers back to smoking cigarettes.

Do these things and the desired endgame can be achieved in a matter of months to years, not decades.  But that would make too much sense, right?

FUN FACT:  Hemp-based, tobacco-free "blunt wraps" are now commercially available, so even the classic use of hollowed-out cheap tobacco cigars for rolling cannabis blunts is now thoroughly obsolete as well. 

UPDATE:  Apparently New Zealand will, starting in 2025, mandate that only very low nicotine cigarettes (VLNC) be sold, similar to what we advocate above.  Also, in 2024 they will sharply reduce the number of tobacco retail outlets by 90-95%, and ban the sale of cigarettes at kiosks, gas stations, or supermarkets.  This will be in addition to their generational ban for anyone born after January 1, 2009.  Thus, the generational ban is completely redundant and unnecessary, given the other two components.  And also the price of a pack of smokes there, $36 NZD, is the equivalent of over $20 USD (that is, more than a dollar per cigarette!) thanks to their already high taxes, making it a very expensive habit as it is.

And vape products would remain unaffected. 

Twenty-One Debunked's preferred plan, in a nutshell, is basically the New Zealand plan MINUS the generational ban and keeping the age limit at 18, plus a few other things above listed above.

UPDATE 2:  Bhutan, the only country in the 21st century that had completely banned tobacco across the board, has failed so miserably in doing so (thanks to the black market and international smuggling, and despite very stiff penalties too) that they ended up reversing their ban in 2021, largely out of fear that rampant cross-border smuggling would.... increase the spread of Covid.  Seriously, you cannot make this stuff up!  This should really be a cautionary tale.