It Is Dangerous to Be Right When the Government Is Wrong (41 page)

Let us return to Feinberg's bus and its unsavory passengers. While the passengers' conduct is, at times, highly offensive and extremely unpleasant, their conduct is ultimately harmless, or in other words, it falls short of violating any natural right. Although their actions may be quite reprehensible, the characters on that bus are no more deserving of criminal punishment than putting one's elbows on the table during dinner.

According to Professor Feinberg in his magnum opus
The Moral Limits of the Criminal Law
, the unpunishable offenses perpetrated on the bus can be categorized in six ways. The malodorous, strobe light–carrying, stereo-blasting man is an affront to the senses. This infliction to the senses may be annoying and perturbing, but you can plug your nose, close your eyes, and cover your ears—or more simply, catch the next bus.

The second category compels feelings of disgust and revulsion in the spectator and includes the drooling, burping picnicker of cockroaches and rotten eggs. These unfortunate reactions are not affronts to the senses, but rather affronts to subjective sensibilities. You may be sickened or nauseated, but the behavior does not, however, add up to harm. While disgust and revulsion are disagreeable emotional effects, again, one can look away from the woman so as to avoid a sour stomach or catch the next bus. Moreover, such subjective sensibilities are often the product of one's local culture and familial upbringing. It is no more logical to criminalize the picnicker's conduct than to criminalize the selling of foie gras (as Chicago did in 2006),
⁶
fried frog legs, or bull testicles (euphemistically known as rocky mountain oysters), as repulsive as they may seem to some of us. Not surprisingly, the criminalization of offenses can be used to discriminate against cultures which cannot command a political majority, such as when Parliament banned the playing of Scottish bagpipes in 1747 after the final suppression of the Jacobite risings one year earlier.

245

While the second category could be called affronts to “lower order sensibilities,” the third category involves shock to moral, religious, and patriotic sensibilities, or “higher order sensibilities.” These are higher emotional responses digging deeper than mere gut reactions such as disgust and revulsion. This type of offense is a gross violation of some kind of neighborhood principle, including the bus's pallbearer who wears offensive religious clothing or who desecrates the country's treasured symbol. As a religious individual, you may be deeply offended by the religiously offensive T-shirt worn by the youth; however, his behavior in no way harms you personally. Moreover, since desecration of the American flag is purely symbolic, criminalizing it is really just another way of punishing a thought and the expression of an idea. It is a flag burner's distaste for the United States, and not the actual destruction of a material thing, which people find so repulsive. And if the government has the ability to regulate our thoughts—the innermost realm of the individual—then we truly have no freedom whatsoever.

Extreme deviations from prevailing standards of “normalcy” induce feelings of shame, embarrassment, and anxiety, which are encompassed in the fourth category of un-punishable offense. The overly affectionate and sexually inappropriate couple on the bus is a prime example. Their actions constitute ordinary and acceptable ways of deriving sexual pleasure when done in private; however, in public, a viewer may feel temptations of voyeurism, which trigger feelings of shame, embarrassment, anxiety, and envy. Your body, your rights, your property, however, are not violated as a witness.

246

Next among un-punishable offenses is the category of annoyance, boredom, and frustration. To be fair, the mental states provoked by loud, boisterous, and incessantly talking seatmates or the two women with high-pitched, nasally voices can be almost as painful and difficult to tolerate as the examples from other categories. But nonetheless, there is no natural right to be free from screeching voices.

And finally, fear, resentment, humiliation, and anger can be the reasonable reaction to the hand grenade–waving, rubber knife–brandishing, swastika–wearing teenagers who deliberately seek to cause these unwanted emotions. In a way, these behaviors are the most offensive and disturbing of the categories. This type of conduct induces sentiments that are sometimes the most difficult to handle and control, particularly to those who are part of the targeted group—on Feinberg's bus in particular, Catholics, blacks, Jews, and Hispanics. Yet again, it is clear that these thoughts cannot be criminalized, so why could simply making others aware that they possess those thoughts be any different, and more deserving of punishment? No thoughts can morally be criminalized. After all, a member of any ethnic or religious group certainly knows that there are those out there who harbor ill will toward him. Why is it any more “harmful” to know that one of those individuals happens to be riding the same bus as he is? Moreover, once again, this offense can be avoided. The offended individual may look away, or take a deep breath, signal the bus driver to stop, and get off the bus.

But Is Refraining from Punishing Offense Really Worth It?

At the age of twenty, Osvaldo Hernandez was arrested and prosecuted for possession of a small pistol, a felony under New York state law. Hernandez, who grew up in a dangerous neighborhood in Queens, New York, claimed the handgun was for self-defense. Yet, despite his plea, the court convicted and sentenced him to a year in jail on Rikers Island. After eight months, the government released Hernandez on good behavior, after which he enlisted in the United States Army.

247

After three years with the 82nd Airborne Division, Hernandez was deployed to Afghanistan, as a member of an elite paratrooper group, and served a fifteen-month tour overseas. Upon completion of his deployment to Afghanistan, Hernandez sought to become a member of the New York City Police Department (NYPD). However, his previous felony conviction prohibited him from joining the NYPD because of the department's blanket prohibition against hiring individuals with prior felony convictions. Fortunately, on December 29th 2009, New York Governor David Paterson pardoned Hernandez's felony conviction in order for him to achieve his lifelong dream of becoming a police officer. What was Hernandez's response to the pardon? He thanked the governor for “giving [him] back his life.”
⁷
In what kind of world can a man serve his country abroad as a soldier but domestically be unable to defend its citizens as a police officer without a court battle? Could there possibly be a legitimate justification for taking Osvaldo Hernandez's lifelong dream away from him on the grounds that he possessed a dangerous weapon for self-defense in a dangerous neighborhood? Stated differently, did his mere possession of the pistol harm anyone? No.

Let us return to Professor Feinberg's bus again. Note that you, the passenger, have several options for avoiding the offensive behavior: You could look away, get off the bus, or lobby your local government to ban or to criminalize those particular types of conduct. Indeed, one might sensibly wonder why it is that passengers should have to get another bus in order to avoid such repulsive actions. After all, is not freedom about the ability to choose one's profession, start a family, and worship the God of one's choosing, and not eating live cockroaches and rotten eggs on a public bus? In other words, aren't there certain types of offenses which don't deserve protection as fundamental liberties, at least when compared with the inconvenience required to avoid them? Are you justified in demanding legal protection at the cost of the mourners', the teenagers', and the picnicker's liberty?

Most fundamentally, the criminalization of victimless offenses rests upon the doctrine of legal paternalism. Under the legal paternalism concept, the government views itself, and not us, as in the best position to regulate our daily conduct. Thus, where this concept prevails, like in New York City, for example, we have the Nanny State (too much salt in your food, too much trans fat in your diet, wasteful light bulbs in your lamps, etc.). However, this directly violates the Natural Law principle that no government can be above the individual, since a government is a human creation, and the creature is always subservient to its creator. Additionally, the content of those laws themselves will be the product of the moral tides of the day, and not immutable Natural Law principles which inhere in the order of things.

Moreover, to illustrate the practical impropriety of legal paternalism, consider criminal prohibitions on various forms of gambling, for example. At what point in time did the government decide that it is in the best position to tell you how to handle your finances and restrict your ability to gamble? Was it in September of 2007, when our nation's national debt began to rise on an average of $4.13 billion per day?
⁸
If you were to mimic the government's handling of its finances, how balanced would your budget be?

The central evils of criminalizing offensive behavior, however, are the exaltation of the state over the individual and the use of this exaltation as the primary mechanism to assert control over persons. By limiting what you can or cannot do, the government's criminalization of harmless conduct restricts liberty and freedom on a daily and constant basis. At any point in time, it is astonishing how many criminal codes we are subject to. You want to jaywalk to make your dentist appointment on time? You can't. You want to sit on a park bench and eat your dinner after sunset? You can't. You want to ride your bike to the grocery store without lugging along a helmet? You can't. You want to skateboard in front of the courthouse? You can't. You want to bet money with your favorite bookie on your favorite baseball team? You can't. You want to buy a drug not approved by the FDA? You can't. You want to cool off with a beer on the beach? You can't. You want to talk on your cell phone while driving safely? You can't. You want to paint the fire hydrant (on your property) in front of your house green to match the grass? You can't. You are on an empty subway car, and you want to put your packages on the seat next to you. You can't. You want to collect rainwater on your own property for your own consumption? You can't. The bottom line is every law, regulation, rule, and ordinance made by the state affects your behavior in some way, and the government has more control over you than you could ever imagine. And there can be no more effective way of controlling your moral and behavioral standards than by threatening to brand you with society's most powerful stigma, as a criminal, thus destroying life projects, careers, and family ties. Everything that the government does either compels or restrains, under the threat of force. Government is the negation of liberty.

249

Moreover, the aggregation of control may seem like a small issue today, but could end up being a larger and more invasive issue tomorrow. With the lengthening and growing complexity of the criminal code, the criminalization of the subjective whims and sensibilities of the Congress may become status quo. And then we will never know what it feels like to truly be free. In this way, the government is also able to aggrandize power in itself by increasingly controlling the lives of its citizens.

Finally, the simplicity and ease of avoiding the problem without criminalizing conduct cannot be overstated. Justice John Marshall Harlan, writing for the Supreme Court in
Cohen v. California
(1971), discussed just such a solution.
⁹
In that case, the defendant wore a jacket bearing the words “F—the Draft” inside a Los Angeles courthouse. While the police and the prosecutors were clearly offended by the display, the Supreme Court found in favor of a Vietnam War protester's First Amendment right to express disfavor of the draft. Justice Harlan's response to the offended individuals? He suggested the observers “effectively avoid further bombardment of their sensibilities simply by averting their eyes.” Or, as discussed before, they could simply catch the next bus.

Understood in this light, the push to criminalize a certain activity can be understood as an application of a recurrent theme in this book: Individuals so often prefer to have the state, and not themselves, solve their problems for them because doing so is much more “convenient,” even if it comes at the expense of liberty. Further compounding this problem is the fact that those from whom they demand legal protection are often the least respected, most misunderstood, and hated members of society. Moreover, today's controversy is often tomorrow's mainstream culture. How soon we forget the initial public backlash to the music of the Beatles, or even contemporary pushes to ban
Harry Potter
(for teaching children about witchcraft). In sum, certainly it is inconvenient to carry around earplugs or catch the next bus, but we simply cannot sacrifice liberty for the sake of convenience. Or even worse, sacrifice another's liberty for the sake of our own convenience.

250

What Did the Founders Have to Say?

Given these dangers of profligate criminalization, it should come as no surprise that the Founders enshrined an extraordinarily limited ability for the federal government to make crimes. Article I, Section 8 provides that Congress can only punish treason, “counterfeiting the Securities and current Coin of the United States,” “Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Moreover, Thomas Jefferson famously wrote that all “acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution are altogether void and of no force.”
¹⁰
In clear contravention of these principles, the federal government is currently able to criminalize whatever it wishes.