Ain't Nobody's Business If You Do: The Absurdity of Consensual Crimes in a Free Society
The State Should Keep Out of Our Personal Affairs
JANUARY 01, 1995 by DOUG BANDOW
Peter McWilliams is serious about individual liberty. In the introduction to Ain’t Nobody’s Business If You Do he declares simply: “This is a book about freedom.” More specifically, it is about the right of people to run their lives without the interference of government so long as they do not violate the rights of others. While this thesis might seem unexceptional to readers of the Freeman, McWilliams has produced a unique and enjoyable, if at times uneven, text for keeping the state out of our personal affairs.
Still, to some people the issues he writes of might seem to pale in importance compared to, say, health care, until you realize the human cost of the government’s attempt to stamp out what McWilliams calls “consensual crimes.” President Clinton wants to arrest you if you seek care outside of his government-controlled medical system. But the state is already daily filling the jails with people who have engaged in some act that others found to be unsafe, offensive, immoral, or something else. Writes McWilliams:
More than 350,000 people are in jail right now because of something they did, something that did not physically harm the person or property of another. In addition, more than 1,500,000 people are on parole or probation for consensual crimes. Further, more than 4,000,000 people are arrested each year for doing something that hurts no one but, potentially, themselves.
Looked at from this perspective, there are few more important issues than eliminating criminal sanctions against acts which only harm consenting parties, if anyone. As McWilliams points out, tolerance, just like responsibility, “is the price of freedom.” The ultimate issue is not what we would prefer our neighbors not to do, but our justification in locking them up for doing it.
McWilliams begins sensibly enough by discussing the characteristics of consensual crimes. He rightly prefers the term consensual to victimless because he does not claim that such activities never cause harm. Moreover, he deftly distinguishes consensual crimes from real crimes that perpetrators attempt to portray as victimless: nonviolent theft, for instance, as well as drunk drivers “who recklessly endanger innocent (nonconsenting) others,” in McWilliams’ words. He also points out the absurdity of the state attempting to protect people “from being emotionally hurt by the self-destructive behavior” of others, insisting instead on physical harm to turn an activity into a crime. In the end, he argues, the law has a pretty important job—protecting “innocent people from likely harm to their person or property.” And doing that right will keep officials busy enough.
Still, consent obviously does not affect the issue of morality. And it is the traditional tenets of the Jewish and Christian faiths that have done so much to shape government policies on consensual crimes. McWilliams gives no indication of sharing these moral visions, but he recognizes their potency: “To the people who find [consensual crimes] immoral, they are and may always be immoral.” Rather than arguing over what is moral, McWilliams nicely distinguishes different forms of morality.
One type, he argues, is “personal morality,” what we believe to be right. This can be conceived of as intra-personal morality, since it concerns the making of a good and virtuous person. The other category is what McWilliams calls “social morality,” which means “not physically harming the person or property of another.” This may be best understood as inter-personal morality, governing a person’s relationship with others. Thus, the key to preserving freedom is not to eschew legislating morality—the only firm basis for law is morality. What is critical is to enforce only social morality, in order to mitigate the impact of a person’s sin on others. The state should not attempt to legislate personal morality, engaging in soulcraft rather than statecraft.
McWilliams, obviously a free spirit when it comes to organizing books, goes on to add sundry observations on, among other things, the Age of Enlightenment, failures of alcohol Prohibition, and hypocrisy of today’s would-be prohibitionists of just about everything. Regarding the latter, he finds an obvious target: Cigarettes cause enormous carnage yet are not only legal but subsidized. Lest his sustained attack on tobacco—“cigarettes are our country’s most serious drug problem,” he argues—confuse one, he opposes tobacco prohibition.
There is much, much more in Ain’t Nobody’s Business If You Do. McWilliams devotes one long section to the many arguments against criminalizing consensual conduct. Indeed, at times one feels that one is getting the “kitchen sink” treatment, with no conceivable claim left out. For instance, he leads off contending that such laws are “un-American.” Now, they may be stupid, dumb, immoral, and a host of other things, but there is a long prohibitionist streak in U.S. history. And if the Founding Fathers had voted on the legitimacy of, say, an anti-sodomy law, McWilliams would probably have been disappointed by the outcome.
Similar is the author’s contention that the prohibition of consensual crimes is unconstitutional. It would be nice if they were, but that isn’t the document given us by the Constitutional Convention in 1787. Still, McWilliams’ chapter on this issue is entertaining, and will certainly expand the reader’s understanding of what might be possible with a judiciary more sympathetic to a Constitution that was intended to create a limited government of strictly enumerated powers.
McWilliams’ other claims are generally more persuasive. He titles one chapter: “Laws against Consensual Activities Are Opposed to the Principles of Private Property, Free Enterprise, Capitalism, and the Open Market.” It shouldn’t be necessary to defend such a proposition, but McWilliams does so with verve. He also makes many more traditional arguments against consensual crimes: the cost of arresting, convicting, and imprisoning people for possibly hurting themselves; the catastrophic impact on those prosecuted; and the encouragement of “real,” or victimful, crimes. Reading these chapters alone should be enough to convince the hardened prohibitionist that he is doing more harm than good.
Alas, the author’s desire to toss in the kitchen sink really shows with his section on “Consensual Crimes and the Bible.” McWilliams’ biblical interpretation is more convenient than convincing, and is reminiscent of deist Thomas Paine’s reliance on Christianity to bolster his arguments in Common Sense. Suffice it to say that the Bible establishes scores of principles governing an individual’s relationship with God and his neighbors, but virtually none about when he should jail other people for failing to fulfill their duties to God. Moreover, Christianity’s unique emphasis on soulcraft suggests this to be an area beyond the state’s purview. Where McWilliams does have something serious to say to believers is in his argument that separation of church and state is for their benefit—after all, as he points out, we are all “part of a religious minority,” and if we allow government to meddle in religion “we have not invited God, but the devil, to be the leader of the nation.”
Generally more convincing are the other parts of Ain’t Nobody’s Business If You Do, covering how consensual crimes became crimes, the specifics of the most common consensual crimes, and answers to oft-asked questions (e.g., “what about the children?”). He even offers some truly clever ideas that deserve further discussion. What is the proper age of consent for kids, he wonders? Let parents and child attempt to come to a mutual agreement: with rights would then come responsibility. As McWilliams observes, “If the would-be new adults mess up, however, they do not get to hide behind their youth, inexperience, or innocence. They got the name (adult) and now they can play the game (adult court).”
What does McWilliams believe should be done about consensual crimes? Repeal the laws, of course, though he recognizes the very real political obstacles to doing so. In a short but helpful practical section, he reviews state laws regarding consensual crimes and gives some advice on how to take political action.
The most important step, however, is to simultaneously educate the public and reawaken people’s commitment to liberty. Ain’t Nobody’s Business If You Do certainly should help do so. Peter McWilliams has entertainingly demonstrated that we need a second American revolution not only to reign in government spending and taxing; we also need one to stop the state from persecuting people who have harmed no one other than themselves. For helping to spread this message McWilliams deserves our thanks.
Doug Bandow is a Senior Fellow at the Cato Institute and former Special Assistant to President Reagan. He is also a Contributing Editor to The Freeman and the author of The Politics of Envy: Statism as Theology, recently released by Transaction Publishers.