Smith continues his discussion of Lysander Spooner’s objections to confusing vices with crimes.
In Vices Are Not Crimes, Lysander Spooner clearly delineated the bright line that separates vices from crimes.
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. On the other hand, 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.
In the liberal version of the consent theory of government, individuals cannot delegate rights (or the power to enforce them) to a government unless they possess those rights in the first place. This simple insight provided an unmistakable standard to judge when a government has overstepped its legitimate boundaries. If a government claims rights and powers that no individual could possibly possess, then that government claims those rights and powers illegitimately, since they could not possibly have been based on the consent of the governed. It is impossible for a person to transfer or delegate to government a rightful moral claim that he never possessed, and never could possess. Here is how Spooner put the matter in regard to vices.
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. They could not contribute to the government any rights, except such as they themselves possessed as individuals.
In contrast to the individual right to punish men for their crimes, when they aggress against others, there is no such thing as an individual right to punish men for their vices.
Now, nobody but a fool or an impostor pretends that he, as an individual, has a right to punish other men for their vices. But anybody and everybody have a natural right, as individuals, to punish other men for their crimes; for everybody has a natural right, not only to defend his own person and property against aggressors, but also to go to the assistance and defence of everybody else, whose person or property is invaded. The natural right of each individual to defend his own person and property against an aggressor, and to go to the assistance and defence of every one else whose person or property is invaded, is a right without which men could not exist on the earth. And government has no rightful existence, except in so far as it embodies, and is limited by, this natural right of individuals. But the idea that each man has a natural right to sit in judgment on all his neighbor’s actions, and decide what are virtues, and what are vices,—that is, what contribute to that neighbor’s happiness, and what do not,—and to punish him for all that do not contribute to it, is what no one ever had the impudence or folly to assert. It is only those who claim that government has some rightful power, which no individual or individuals ever did, or ever could, delegate to it, that claim that government has any rightful power to punish vices.
Spooner greatly admired the Declaration of Independence, especially its affirmation of our inalienable right to pursue happiness. This led Spooner to frame the injustice of punishing vices in a particularly effective manner. To use force against a person because we disapprove of the way in which he pursues happiness is to deny his right to pursue happiness altogether. To achieve happiness requires knowledge, and such knowledge can only be acquired on a personal level through trial and error. We cannot tell others how to be happy; this is something we must learn for ourselves. But if others deny us the opportunity to act according to our own judgments, they reduce us to a servile status and erect a tyrannical power over us. They presume to know what will make us happy and what will not, regardless of what we believe, and they are willing to enforce their opinion through force.
Of course, as Spooner pointed out, every person has vices, so no moral policeman would ever advocate the punishment of all vices. His vices should be exempt from the law; only the vices of others should be prohibited and punished. Spooner wrote:
Every human being has his or her vices. Nearly all men have a great many. And they are of all kinds; physiological, mental, emotional; religious, social, commercial, industrial, economical, &c., &c. If government is to take cognizance of any of these vices, and punish them as crimes, then, to be consistent, it must take cognizance of all, and punish all impartially. The consequence would be, that everybody would be in prison for his or her vices. There would be no one left outside to lock the doors upon those within. In fact, courts enough could not be found to try the offenders, nor prisons enough built to hold them. All human industry in the acquisition of knowledge, and even in acquiring the means of subsistence, would be arrested; for we should all be under constant trial or imprisonment for our vices. But even if it were possible to imprison all the vicious, our knowledge of human nature tells us that, as a general rule, they would be far more vicious in prison than they ever have been out of it.
Nobody but “knaves or blockheads” would seriously propose the following argument:
“The vices of other men we will punish; but our own vices nobody shall punish? We will restrain other men from seeking their own happiness, according to their own notions of it; but nobody shall restrain us from seeking our own happiness, according to our own notions of it? We will restrain other men from acquiring any experimental knowledge of what is conducive or necessary to their own happiness; but nobody shall restrain us from acquiring an experimental knowledge of what is conducive or necessary to our own happiness?”
According to Gerrit Smith and some other temperance reformers with libertarian sympathies, the purpose of prohibition is not to protect the drinker from his own self‐destructive behavior; rather, drinking is the major source of crime, so prohibitory laws are meant to protect innocent victims from the potential violence of the drunkard. Spooner had no patience with this argument. Prohibitionists who use it “talk blindly and foolishly.” The argument is “utterly preposterous.” Most great crimes are motivated by “avarice and ambition.” Indeed, “The greatest of all crimes are the wars that are carried on by governments, to plunder, enslave, and destroy mankind.”
Second only to the crimes generated by war are the crimes committed by men who are perfectly sober and who commit their crimes, not spontaneously under the influence of intoxicants, but after cool and clear deliberation. These are the crimes committed by legislators.
They are committed, not so much by men who violate the laws, as by men who, either by themselves or by their instruments, make the laws; by men who have combined to usurp arbitrary power, and to maintain it by force and fraud, and whose purpose in usurping and maintaining it is, by unjust and unequal legislation, to secure to themselves such advantages and monopolies as will enable them to control and extort the labor and properties of other men, and thus impoverish them, in order to minister to their own wealth and aggrandizement. The robberies and wrongs thus committed by these men, in conformity with the laws,—that is, their own laws,—are as mountains to molehills, compared with the crimes committed by all other criminals, in violation of the laws.
In addition, the vast number of frauds committed in commercial transactions are perpetrated by sober people. Most drunkards lack the clear‐headedness and sense of caution needed to plan and execute elaborate frauds. The same may be said of most “burglars, robbers, thieves, forgers, counterfeiters, and swindlers, who prey upon society.” These crimes are so dangerous that few perpetrators would risk undertaking them while drunk.
But what of those drunkards who actually do commit crimes? Spooner had some interesting things to say about this matter, which I shall consider in my next essay. For now suffice it to say that these criminals constitute a minority of drinkers, and that it is a gross injustice to punish the innocent majority because of fear of what a minority might do. When innocent drinkers are imprisoned the true criminals are the judges and law enforcement officials who imprisoned them. The fact that these officials act under cover of law does not render their actions any less unjust and condemnable. This conclusion was a logical implication of the natural‐law theory of justice that Lysander Spooner defended so passionately.