Ain't Nobody's Business If You Do

PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES ARE NOT A GOOD IDEA

LAWS AGAINST CONSENSUAL ACTIVITIES ARE OPPOSED TO THE PRINCIPLES OF PRIVATE PROPERTY, FREE ENTERPRISE, CAPITALISM, AND THE OPEN MARKET


Don't I have the right
to do what I want
with my own money?
MATTHEW 20:15

THERE ARE FEW CERTAINTIES in American history—even recent American history. Did FDR know about Pearl Harbor in advance? Who killed JFK? Whither Whitewater?

Often, what we firmly believe is true later turns out to be false. In the war against Iraq, we prided ourselves on the precision of the missiles and the "pinpoint" bombing. Later, we found out that more than half the missiles and bombs did not hit their targets. (All, however, did hit something.)

Things change, or, as Arthur Miller put it, time bends.

There is one fact of American history, however, that no one doubts: our founding fathers believed deeply in the principle of private property. As Adam Smith (the original) wrote in his Wealth of Nations, published in 1776,

Every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man or order of men.

Among a wealth of other qualities, the founding fathers were rich.


The United States is
a great country and rich in itself—
capable and promising to be
as prosperous and as happy as any.
GEORGE WASHINGTON

One of the signers of the Declaration of Independence, Robert Morris, was rich enough to become the treasury during the revolutionary war: his personal credit line saved the United States from bankruptcy. Benjamin Franklin made a fortune from his inventions and publications. Thomas Jefferson was born well-off and later assumed control of his wife's even more considerable land and fortune. And, at the time of the Constitutional Convention, George Washington was the richest man in America. (John Hancock ran a close second.)

It wasn't that poor people were excluded from the Continental Congress, where the Declaration of Independence was drafted, or from the Constitutional Convention, where the Articles of Confederation became United States Constitution; it was just that who but an independently wealthy person could volunteer to go to Philadelphia, unpaid, at the height of the growing season, for an indefinite period of time?

Not that they all came for purely selfless, patriotic reasons—each had his own agenda; many of which were financial. Most of the complaints against the British crown that caused the Revolution concerned monetary policies: taxes on tea, import duties, interference of trade, and so on. The British soldiers were not raping the women, selling the men into slavery, or randomly plundering the countryside. No. The colonists were furious when, for example, a law was passed saying that, if no other accommodations were available, British soldiers were allowed to be temporarily quartered in the colonists' barns. In the history of occupation and imperial domination, the North American colonies received benign, almost deferential treatment from the British crown.


To determineth the amounteth that
thou canst claimeth for depreciation
to thine cow, deducteth the amount
showneth on Line XVLIICX-A of
Schedule XVVII . . . No, waiteth, we
meaneth Line XCII of Schedule CXVI
ILMM . . . No, holdeth it,
we meaneth . . .
DAVE BARRY
on colonial tax forms

This is because America, for the British, was an economic enterprise. It was a market for British goods; a supplier of its needs; and a good place to send its religious fanatics, political dissidents, and criminals. This kept England both thriving and tidy. England liked the fact that the British Americas were flourishing and only wanted to "wet its beak."

Britain wanted its beak a little too wet, thought the founding fathers. Even though the taxes England levied on the English were fifty times greater than the taxes it levied on the colonists, the colonists protested. It was an economic hardship up with which they would not put. The taxes were not so much levied against the consumers as against the merchants—the importers and exporters. The taxes cut into their profits and they didn't like it.

But it was more than just the taxes; it was the way in which England was meddling with the commerce of the country in general. Any sort of change required endless dealings with the bureaucracy that was England and the American entrepreneurs were tired of it. The freedom they wanted was freedom to develop the country's resources without the meddling, red tape, commissions, and second-guessing of British bureaucrats.


Next to the right of liberty,
the right of property
is the most important individual right
guaranteed by the Constitution
 and the one which,
united with that of personal liberty,
has contributed more to
the growth of civilization
than any other institution
established by the human race.
PRESIDENT WILLIAM H. TAFT

And so the colonists had a revolution, and, by making economic alliances with France and Spain—the second and third greatest military powers of the day—the colonists won.

Although victorious in war, by 1786 the United States was an economic mess. Its primary trading partner, Britain, wanted nothing to do with the rebellious upstarts; France and Spain were helping themselves to the portions of North America they wanted; and the war had plunged the country $60 million into debt—an amount, relatively speaking, larger and more burdensome than our current national deficit.

The gathering in Philadelphia in the summer of 1787 was more an economic conference than a political one—although the two, then as now, were intimately connected. Politically, various founding fathers wanted forms of government from a monarchy to a strong federal government; from no state government to all-powerful state government. Economically, however, no one even thought of proposing a system other than individual ownership of private property. The only questions were (a) how do I most effectively trade my private property with others? and (b) how do I get more of it? Harking back to John Locke, "Government has no other end than the preservation of property." (Please see the chapter, "The Enlightenment.")

What the founding fathers wanted—and what they wrote into the Constitution was for Congress to provide an environment in which commerce could thrive. Every one of the seventeen enumerated powers given to Congress by the Constitution provided for a level field with fertile soil on which to do business: secure borders by developing and regulating armed forces (six of the powers relate to this), borrow money, regulate commerce, control immigration and establish uniform laws for bankruptcy, establish a common legal tender and coin money, punish counterfeiters, establish post offices and build post (toll) roads, issue patents and copyrights, settle disputes, and keep the sea lanes free of pirates. Powers 1 and 17—to collect taxes and to govern the nation's capital—gave the federal government the means to carry out powers 2–16. In addition, the Constitution prohibited the individual states from doing most of these things so that the United States would have one single, strong, central, uniform economic system.


Private property was
the original source of freedom.
It still is its main bulwark.
WALTER LIPPMANN

All of the individual rights in the Constitution and the Bill of Rights were added not just because they were the "sacred rights of man" and made for good government; they also made for good business. To have the government involved in regulating religion, morality, and personal behavior was not only costly, it would distract the government from its primary task: keeping the world safe for American commerce.

The essence of private property is that what's yours is yours, and it remains yours until you give it, trade it, or sell it. While it is yours, the government will protect—by force if necessary—your right to keep and use ("enjoy") it. Once you give it, trade it, or sell it, however, you have lost all title to it, and the government will now protect whomever you gave, traded, or sold it to.

What you do with property while it is yours is entirely your business. If you abuse it, misuse it, or even destroy it, the government cannot step in and stop you. If you have a table and put it under a leak in the roof, the government cannot step in and insist that you either move the table or fix the roof. It's your table, your roof, your leak, and your life.


Freedom
and the power to choose
should not be the privilege
of wealth.
They are the birthright
of every American.
PRESIDENT GEORGE BUSH

The limit of doing what you want with your property, of course, is when you begin to interfere with the property of others. Just because you own a hammer doesn't mean you get to hit anything you want with it—just the things you own or have the owner's consent to hit.

You have the freedom to give, trade, or sell your private property. You can either make or lose money on a transaction and it's not the government's business—except where taxation comes in. As long as the government gets its due, however, you can do what you want. The government will not prevent you from being a foolish businessperson and it will not reward you for being a great one. As long as there is a free-will exchange without undue coercion or fraud, all interactions and exchanges of private property are the nongovernmental concerns of the people involved.

This right of private property certainly extends to our bodies. Whether we choose to be fit or fat, have a Cover Girl complexion or put tattoos on every inch of our body, shave our head or let our hair grow long, work for $1 a year or $100,000 a year, is simply not the government's business.


Pope offers qualified praise of capitalism
CHICAGO TRIBUNE, May 3

Pope assails capitalist evils
CHICAGO SUN-TIMES, May 3

Free market gets Pope's blessing
WASHINGTON TIMES, May 3

Pope warns against godlesscapitalism
THE WASHINGTON POST, May 3

I'm not going to argue the pros and cons of private ownership, free enterprise, capitalism, and the free market system. That's another discussion. It is, however, indisputably true that this is the economic system we have; it is the economic system we have had since the ratification of the Constitution in 1788. It is precisely the system that the anti-Communists have worked so hard for so long to keep firmly in place. They have succeeded. Firmly in place it is.

And, our economic system is one of the best arguments against criminalizing consensual activities.

Laws against consensual activities are a restriction of trade. If I want to buy a farm, grow grapes, and make wine—as long as I meet all permit and licensing requirements—I am free to decide whom to hire to help me make the wine, how much to charge per bottle, and whether to use plastic corks or cork corks. If the enterprise is successful, I become an honored taxpayer, employer, wine maker, and citizen.

If, on the other hand, I choose to buy a farm and grow marijuana with the intent of selling it for profit, I would be a felon, a criminal, a drug lord, and a disgrace. Under current federal law, I could be put to death.

Going through a list of consensual crimes, it's easy to see that our right to give, trade, rent, or sell our person or property to another is severely hampered.

Of course, people are making money—and lots of it—from the false scarcity created by making consensual activities crimes. To coin a bumper sticker: WHEN DOING BUSINESS IS A CRIME, ONLY CRIMINALS ARE IN BUSINESS. Organized crime in this country is directly traceable to Prohibition. (Please see the chapter, "Prohibition.") When Prohibition went away, organized crime did not—it switched products and kept selling. That's because the government kept prohibiting things people wanted to buy.


Cherish the system
of Free Enterprise
which made America great.
PHILIP D. REED

When the government pretends that certain businesses are not going on, all the government regulations, inspections, and licensing that keep products uniform and relatively safe are impossible. When we drink a beer or a glass of wine, we know the approximate alcohol content and can regulate our intake and activities accordingly. We know the alcohol content because it is established and regulated by law. When we take an illegal drug, we have no idea of its strength, and consequently are unable to regulate either dosage or behavior.

From healthcare workers to restaurant employees, there are certain required procedures and practices to further their own and their clients' health and safety. No such restrictions apply to consensual crimes—and the lack of same is killing people.

When business is open and aboveboard, both businesses and consumers can be protected against real crime such as fraud, violence, and theft. As it is now, when indulging in any of the consensual crimes it's the law of the Old West—and often the law of the jungle.

Another legitimate aspect of regulation—impossible as long as the government holds certain transactions illegal—is discouraging minors from patronizing certain businesses. No liquor store owner in his or her right mind would knowingly sell to a minor. Do you think the same is true of drug dealers? The artificially high prices created by the criminalization of certain activities make opening new territories—such as schoolyards—profitable. One hears about drug dealers giving out samples of certain substances to school children. Have you ever heard of a liquor retailer handing out samples of alcohol on the playground? ("Hey, kid! Over here. Just got a new shipment of Stoli. One hundred proof. Check it out.") If drugs were available at a fair market price (plus, of course, an exorbitant tax) and sold in licensed and regulated retail outlets, the "marketing" to minors would dramatically decrease. This is true for all consensual crimes in which minors are currently encouraged to take part.


Money, which represents
the prose of life,
and which is hardly spoken of
in parlors without an apology,
is, in its effects and laws,
as beautiful as roses.
RALPH WALDO EMERSON

Which brings us to another far-from-insignificant point: taxation. Yes, taxes; everyone's favorite five-letter four-letter word. All those billions and billions and billions of dollars that change hands annually through the businesses created by consensual crimes are completely untaxed. No income tax. No sales tax. No capital gains. Nothing. We'll explore the financial ramifications of that in the next chapter. In this chapter, however, I'll only note that having massive industries—the consensual crimes—completely untaxed puts the businesses that are taxed under an enormous burden. All the tax money that goes toward maintaining a healthy business environment, enjoyed by both licit and illicit businesses, is paid entirely by the legitimate business world.

Aboveground businesspersons must abide by certain rules, restrictions, and professional standards designed to create fairness in the marketplace. Illicit business people have no such rules, regulations, or standards for professional conduct. They do whatever they can get away with—which, obviously, is quite a lot.

The artificially inflated prices caused by criminalizing certain acts of commerce take a large amount of money out of the legitimate loop of business and place it in the underworld. Protection money, pay-offs, kickbacks, bribes, legal fees, and all the other expensive but necessary costs of doing business in the consensual crime trade consume huge amounts of money that might otherwise go to aboveground businesses.


The instinct of ownership
is fundamental in man's nature.
William James
The Variety of Religious Experience
1902

Let's say an honest, hard-working citizen has $50 set aside each week under the general category of "recreation." Let's say that $40 of this goes for recreational chemicals that, were they not against the law, would cost, even with an exorbitant tax, $4. This extra $36 per week—72% of this person's total recreational budget—goes directly into the hands of the economic underworld. With this $36, our citizen might have chosen to go out and do something else, thus spreading money into the general aboveground economy, rather than stay home and watch television. When reading about the billions of dollars spent each year by consumers taking part in consensual crimes, please keep in mind that (a) those dollar amounts are outrageously inflated only because these activities have been deemed illegal, and (b) all that money is being taken directly from the general aboveground economy and put in an underground economy where it is neither regulated, controlled, nor taxed. (And a good deal of it ends up abroad.) Imagine what an incredible boost to the U.S. economy the reintroduction of these lost billions would be.

As Jeff Riggenbach wrote in U.S.A. Today,

As long as no children are involved, these "crimes" are merely what Harvard philosopher Robert Nozick calls "capitalist acts between consenting adults." In a free society, capitalist acts between consenting adults are not illegal, regardless of how many bluenoses might disapprove of them.


Agriculture, manufacturers,
commerce, and navigation,
the four pillars of our prosperity,
are then most thriving when
left most free to individual enterprise.
THOMAS JEFFERSON
in his first annual message to Congress
December 8, 1801

Setting aside all thoughts of commerce, business, and exchange, however, there still is the question of personal property. Are we allowed to own whatever we want, providing it does not physically harm the person or property of another? The Constitution both implies and clearly states, yes. So, what are all these laws about possession? If you are caught possessing (not using, not selling) a certain amount of drugs, you could spend the rest of your life in prison, or—with the enactment of the 1995 Omnibus Crime Bill—be put to death. This is the extreme, but lesser penalties apply for possessing the products or paraphernalia associated with certain consensual crimes.

How the mere possession of something—be it drugs, equipment, or gambling paraphernalia—harms anyone, anywhere, any time, including the person possessing it, is completely beyond me. Criminalizing possession is an example of how far from the Constitution—and all logic and reason—the matter of consensual crimes has gone. You can be arrested for possessing something that, even if you used it, would not physically harm the person or property of a nonconsenting other.

The Nobel Prize–winning economist Milton Friedman is the ultimate guru of the free-market system. As Professor Friedman wrote in his 1962 book, Capitalism and Freedom,

Freedom in economic arrangements is itself a component of freedom broadly understood, so economic freedom is an end in itself . . . . Economic freedom is also an indispensable means toward the achievement of political freedom.


Government is not
the solution
to our problem.
Government is
the problem.
RONALD REAGAN
First Inaugural Address
January 20, 1981

In 1986, as rhetoric was fanning the fires of the war on drugs into an inferno, Professor Friedman (then one of Reagan's economic advisors) calmly stated his views:

I'm in favor of legalizing drugs. According to my value system, if people want to kill themselves, they have every right to do so. Most of the harm that comes from drugs is because they are illegal.

If only Reagan had listened to his learned advisor.

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