Readers of this blog may recall that months ago, Thomas Krannawitter said that he would soon give us a logical explanation of why homosexuality ought to be illegalized. I applauded him for it, and eagerly awaited his explanation. Since then, none has been forthcoming.
Nevertheless, Krannawitter has posted a letter to the Wall Street Journal responding to Richard Epstein’s argument that homosexual marriage ought to be allowed. His letter is full of studied inaccuracies and large logical gaps which he attempts to cover with rhetoric invoking the Lincoln-Douglas debates. But he can’t be allowed to get away with that.
Krannawitter writes that “In [Epstein’s] libertarian view, liberty has no connection to morality, public or private.” This is simply not true. Epstein has written frequently and at length on the importance of morality to maintaining a free society, most recently in his book Skepticism And Freedom. Even in the article under discussion, Epstein explains that “Constitutional libertarians hold that the state must always put forward some strong justification to limit the freedom of association of ordinary individuals.” Why do libertarians make this argument? Because we believe that it is immoral for the government to deprive you of your freedoms without giving a strong justification. We believe in the moral precept that if someone is doing something of which you disapprove, but which doesn’t harm you, you have no moral right to stop him; instead, your “remedy is to refrain from participation in the practices [you] dislike, not to stop others from doing as they please.” We believe that it is immoral for “a majority of the public to impose its will on a minority within its midst in the absence of any need for a collective decision.”
Now, of course, we recognize a distinction when the issue is something that affects another person’s rights. It is both immoral and a violation of someone else’s rights to steal, or rape, or murder, and we may legitimately stop these things—it’s immoral to interfere with someone else’s life, because that person owns his own life. But it is only immoral, and not a violation of someone else’s rights to drink to excess, or to be lazy, or to be thoughtless. And that means that for you to interfere with someone’s drinking to excess, or someone’s laziness, would also be immoral, since that would be interfering with someone else’s life, and we’ve already said that this is immoral.
This is why Krannawitter’s example of “chattel slavery” is so intellectually dishonest. Slavery is not just immoral, it also violates someone else’s rights. Illegalizing slavery is a libertarian enterprise because the purpose of the state is to protect individual liberty. The slave owns his life and it is immoral to interfere with that ownership. It is true, of course, that Stephen Douglas pushed moral relativism, and argued that there was no moral difference between the state adopting slavery and the state not adopting slavery. Lincoln correctly explained that this conclusion only followed if you assume that blacks have no rights. But once you assume that blacks do have rights, then it is not true that these things are equal—for the state to reduce black people to slavery was immoral and an injustice, because it violated the right of those black people to own themselves, and run their own lives. For example, Lincoln said
My faith in the proposition that each man should do precisely as he pleases with all which is exclusively his own, lies at the foundation of the sense of justice there is in me..... Here, or at Washington, I would not trouble myself with the oyster laws of Virginia, or the cranberry laws of Indiana. The doctrine of self government is right—absolutely and eternally right—but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a Negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the Negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself, and also governs another man, that is more than self-government—that is despotism. If the Negro is a man, why then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man's making a slave of another.
Lincoln’s reference to the cranberry laws and oyster laws is important because his point is that while there are some things which are legitimately open to decision by the majority, there are other things that are not. That is a moral determination: and it is simply rephrased by Epstein when he asks “how much further we are prepared to take the principle of democratic domination.”
Now, we’ve seen that for Lincoln, the point was not simply whether slavery did or did not accord with his own views of right and wrong, but that it also violated the rights of individuals, namely, the slaves. The cranberry laws were matters for the former; slavery was an issue of the latter. Krannawitter, however, has a different view. He believes that “liberty must be understood within the framework of morality, that there is no right to do wrong.” But Krannawitter doesn’t explain just what the limits on this principle are. There are people, for instance, who believe that it is wrong to drink coffee, or to travel on the Sabbath, or to allow women to go about without a veil. Krannawitter wouldn’t, I’m sure, say that the state should illegalize these things—but why not? He has given us no limiting principle. For him, anything that is immoral may be illegalized, end of story. Now, suppose someone were to say that blacks ought morally to be reduced to slavery. He believes that blacks are an inferior race and ought to be governed by the majority for moral reasons. Can Krannawitter give us any explanation of why this man’s predilections should not be written into the law?
Krannawitter accuses Epstein of belonging on the Douglas side of things, but in fact, it is Krannawitter who stands on that side. Lincoln understood that collective decision making was limited by morality—that is to say, that the government could not interfere in private lives beyond a certain point. That point was, a person’s right to live his own life and make his own decisions; as Lincoln put it, “each man should do precisely as he pleases with all which is exclusively his own.” Krannawitter, however, does not believe that your marriage is your own—he believes that your marriage belongs to him, to be ruled democratically. And that was Douglas’ view: that if “the people” should choose to deprive blacks of their rights, then “the people” may do so. For Krannawitter, homosexuals are substituted for blacks, but the principle is the same: Lincoln and Epstein argue for moral limits on democratic action—these limits go by the name “rights.” Douglas believed that if the populace decides to deprive a minority of their rights, it may do so. Krannawitter, by saying that you have no right to do what he considers immoral, falls into the latter category.
Now, perhaps Krannawitter will object that Douglas appealed to moral subjectivism by saying that the collective had the right to determine for itself what is right and wrong, but he believes unequivocally that “homosexuality is a moral wrong.” Fair enough—but where is the case for this? He simply ends his letter here, without any explanation of why. Nor does he bother to explain how there can be any liberty if everything that Krannawitter declares a moral wrong is to be illegalized, regardless of the question of violating other people’s rights. Would Krannawitter allow the state to regulate our religious beliefs? Surely nothing is more obviously immoral than to believe in the wrong religion. Therefore, following his logic, there is no right to profess the wrong religion, and therefore there is no reason that the state cannot prohibit you from doing so.
But the fact is that the American founders—like Lincoln and Epstein afterwards—understood that mere immorality is not sufficient grounds for illegalizing something. Instead, something may be illegalized only when it violates someone else’s rights. Indeed, even rightful behavior—such as, converting a person to the True Church, or doing any other sort of favor for a person—can be illegalized if it violates someone else’s rights. As Jefferson explained, “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”