A Query for Libertarians on Moral Legislation

Here's a puzzle for libertarians (or anyone else who wants to chime in): Assuming one takes a position against “moral” legislation against marijuana (i.e., that marijuana should not be unlawful merely on the grounds that it is “bad”), would it be much less wrong to legalize it while taxing the snot out of it?

For my part, I don’t tend to mind much that cigarettes are taxed to the hilt. But on the other hand, I wouldn’t have much problem with criminalizing cigarettes altogether. I don't think I'd vote for an initiative to do so, but it is a perfectly acceptable thing for us to vote about, at least from a constitutional point of view.

However, if you’re one to take the view that we may not, through criminalization, impose personal preferences on choices that are basically private and personal, then, to be consistent, mustn’t you also take the view that we may not do it through punitive taxation, either? The spectre of normative legislation is still present, only instead of prohibiting certain behavior, the state engages in something like selling indulgences, requiring outliers of the public sentiment to make penance for their willful deviations. Is this really any better?

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Why Libertarianism and Democracy Kind of Hate Each Other

Does morality have a place in law?

In a sense, we are all libertarians by default. As to issues that are morally neutral to us but repugnant to others, our response is to respect their right to feel righteous indignation, but to go work it out someplace else and leave me alone. The good Kantians among us have the wherewithal to apply that same response when the tables are turned. That is, to be a libertarian is not to be amoral, it is simply to be a restrained moralist, to work out morality in private relationships or institutions, anywhere but through law and politics.

But I would say two things about that. First, that libertarians are not as value-neutral as they would have us believe. And second, that there is no good reason that the majority should not be entitled to impose their moral views.

At some point, we arrive at the question of whether libertarianism and democracy can coexist. Under a pure libertarian theory, democracy would ultimately be replaced by an over-inflated substantive due process doctrine, a sort of hyper-pragmatic political empiricism. Law & economics, except law having been eaten by a carbo-loading economics who’s busier than a one legged man in an ass kicking contest scratching away at the blackboard to see if yours and my rights are borne out in the math. In the absence of evidence, no legislation is permissible. You and your scruples don’t have to go home, but they can’t stay here.

Libertarianism is to political theory as prog rock is to music. If you’ve got the flare for it, it can be fun to decipher how some atonal piece in 9/4 time that's too busy cramming in more and more notes to bother with things like “choruses” or “lyrics,” can still be recognizable to human beings as music. But the reality is that, by and large, people will always prefer a straightforward verse-chorus-verse-chorus that fades out in three minutes. Similarly, Americans will never give up their beloved and intuitive right to self government in favor of a convoluted system that only permits laws supported by pointyheaded rights theories or complex social utility balancing acts. Godspeed You Black Emperor! will never be ready for prime time, and neither will libertarianism.

This is the idea at stake in the gay marriage fight. The outcome--whether gays get the right to marry--is truly secondary. What is imperative is that we protect and respect the democratic process. And that is true even if the democratic process doesn't get us to a desired result as quickly as a theory like libertarianism. After all, there is no well-defined principle that would compel the legal endorsement of gay marriage (even as people find it more and more culturally acceptable) that would not at the same time also compel the legal endorsement of polygamy or incestuous marriage (which people still find culturally repugnant). (See here and here.) Thus, libertarian theory will not actually yield us a very desirable solution; the only theory that permits the coexistence of lawful gay marriage and unlawful polygamy and incestuous marriage is the democratic theory. Democracy is inelegant, but then again, so is human nature.

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