"...if some large critical mass of Americans is really passionate about doing something, the government cannot effectively ban it, and if it tries to, any reduction in the activity will be accompanied massive disobedience of the law, organized criminal activity, and sharp reductions in civil liberties."
I agree with this, broadly speaking. But I have a follow-up.
We prohibit child pornography. Obviously, (outside of truly brain-melted Rothbardians and actual pedos) everyone thinks that this prohibition is good, and that our aggressive enforcement of the prohibition is better.
Nevertheless, we also know that there is a sufficiently large mass of Americans that is really eager for child porn, such that child porn has never been effectively stamped out, and likely never will be. We know that our prohibition on it has been fuel for organized criminal activity, and that enforcement of it has, at times, led to curtailments (or attempted curtailments) of civil liberties (e.g. the Child Pornography Prevention Act of 1996, struck down in part by SCOTUS in 2002). However, I do not interpret this piece as you advocating for the repeal of child porn bans.
So what's the difference between the prohibitions you oppose and the prohibitions you (presumably) support? Is it because the gravity of the evil to be prevented is so severe that it justifies the collateral damage of prohibition? (If so, you will likely have to persuade abortion opponents and gun opponents that the gravity of the evils they oppose is much less than they currently think!) Or is it because the mass of Americans interested in it (though sufficient to sustain the evil) is smaller than the mass of Americans who demand guns and abortions? (If so, what is the "critical mass" threshold?) Or is it for some other reason? Or have I misread you, and you really are absolutely opposed to less-than-fully effective prohibitions of all kinds?
Basically, I want to know how you tell a "good prohibition" apart from a "bad prohibition," and I haven't seen that explanation elsewhere if you've written it. Cheers.
Thanks for the comment. Accepting your premises, the obvious answer to your argument is that child pornography is so directly harmful to children that we prohibit it anyway. And the "to children" does a lot of work in that argument- i.e., this isn't a group that could organize and convince people to take the issue more seriously, as could someday happen with Prohibition (and which certainly did happen on drunk driving).
But I'm also not sure your premise is right. I.e., let's imagine a society full of pedophiles. That would be an awful society. But really, in such a society, could you actually prohibit child abuse, much as i think we would both agree that child abuse should be prohibited and stopped?
And in fact, I have a version of this that is (thankfully) less extreme than child sexual abuse but might still demonstrate the point- do you think any state could successfully ban spanking or hitting children to discipline them? There are strong arguments that this is child abuse, does a lot of lasting harm to children, etc., but at the end of the day, the popularity of it prevents us from making it illegal.
So honestly, even in the most extreme case (child pornography), if we really did live in a society where a large minority or majority of people thought that material was OK and should be traded and viewed, there would probably be very little we could do about it.
"Accepting your premises, the obvious answer to your argument is that child pornography is so directly harmful to children that we prohibit it anyway. And the "to children" does a lot of work in that argument- i.e., this isn't a group that could organize and convince people to take the issue more seriously, as could someday happen with Prohibition (and which certainly did happen on drunk driving)."
Quite so -- but surely this will apply with equal force for the opponents of abortion, at least insofar as they sincerely believe that each abortion kills a child. (I don't think this works quite so well with guns, although perhaps if I had a bit more imagination.) Of course, this only matters if you buy my premises in the first place, and, of course, as you go on to explain, you do not.
"Do you think any state could successfully ban spanking or hitting children to discipline them?"
Accepting arguendo that spanking is indeed something we should wish to prohibit, this is indeed a pretty good example, because prohibiting it would indeed be a monumental task. I am, however, more optimistic about that monumental task than you are.
I would expect spanking bans to begin in states that are already more hostile to it already. There, on "home turf," the kinks in the laws and enforcement mechanisms and compromises over especially sympathetic cases can be sorted out. The matter can settle, showing the rest of the country how a society that bans spanking gets on. (Answer: probably just fine?) The ground would then be prepared for a national spanking ban (leaving aside whether that's within Congress's power). If some bare majority managed to pass that ban, and then, incredibly, keep it alive against the battery of repeal attempts over the following ten years or so (c.f. Obamacare), it would become part of the landscape -- not necessarily popular, but not going anywhere.
During the first generation of the law's operation, I expect it would do a great deal to reduce spanking. Marginal spankers, who believe in it but not strongly enough to risk prison over it, would desist. There would still be widespread resistance, including organized criminal activity. Actual enforcement against so great a number would be limited, at best. Unfortunately for them, they'd be all but forced to adopt a fairly tolerant view of child abuse, because people who are already defined today as abusers would be a key part of their political coalition; this would give opponents more room to paint the spankers in a bad light.
Going into the second generation, that would start to have an effect. Spankers would have a difficult time passing on their values to their children, because society would be blaring a loud message that spanking is unacceptable -- and there would be criminal penalties attached to behaving otherwise. Anti-spankers, meanwhile, would be supported by media, the news, Respectable Science, the works. The anti-spankers will win more converts in the long run, because their position is legally privileged. The law is a teacher.
Still, resistance will likely continue, until finally, perhaps in the third generation, the majority -- strengthened by decades of experience and confidence in the anti-spanking law, and alarmed by all the spanking still going on -- cracks down on spanking, smashes the infrastructure that supports it, and gets serious about enforcement everywhere. The original half-victory eventually blossoms into a full victory.
This seems not so different from the way we ended slavery and (began to) establish civil rights in this country. At first, the idea of banning slavery must have been simply risible, enjoying no more public support than a proposal to ban spanking would today. Then, it was established in a number of states, and took deep root there. Then, it was established nationally. Alas, despite considerable improvement in the quality of life for Black Americans during Reconstruction, there was massive resistance to their liberation for generations. This lasted until, finally, equality was so deeply baked into the American genome that we developed the political will (aided by MLK and the movement, of course) to finish what we'd started.
A spanking ban -- or an effective abortion ban, or an effective gun ban, or a fully effective child porn ban -- seems as hopeless today as the end of racism seemed in 1820. Yet I think they could succeed... and, if the evils of spanking, abortion, guns, and/or child porn are as bad as their fiercest opponents say, then it seems to me that we have no choice but to try our hardest.
That's how I view it, anyway. You can't slay giant monsters in one fell blow, but you can cut them down one slow, bloody inch at a time -- and having a Prohibition on your side is a big help with that.
1. The definition of whether the fetus has the same rights as an already-born child is not a question that can be skipped in this argument. It's precisely one of the reasons society rejects abortion prohibitions. So you can't go right past public opinion by saying "well fetuses are children"- your fellow voters don't agree with that!
And there's a really fundamental point behind that- the pro-life movement, unlike the abolitionist movement, has been an utter failure at convincing people. It has been highly active for 50 years in America and has totally failed to move the needle. Not only does that make it nothing like abolitionism, it puts it even behind Prohibition! Prohibitionists convinced lots of people and moved public opinion substantially in the direction of Prohibition to the point where they could pass a constitutional amendment banning alcohol. In contrast, the American pro-life movement is so pathetically weak and unconvincing that they can't even persuade THEIR OWN VOTERS to ban abortions in Kansas and South Dakota, and have had to resort to dishonestly trying to keep initiatives off the ballot in Michigan!
Given that, you can't say "well, it's protecting children". Convince the American public that it's actually protecting children, and then we can come back with a child pornography analogy.
2. You are just incorrect about spanking. No state is anywhere near banning it,, and any attempt to would be met with fierce backlash and civil disobedience.
3. Finally, while as I point out, the slavery analogy fails on the basic issue that abolitionists actually made arguments that convinced people and abortion opponents do not, you also don't account for the fact that slavery literally required a civil war to ban. Abolitionism made progress and persuaded people (especially up north), but it didn't actually come anywhere close to actually imposing a national slavery ban. Even in 1861, had the South not thrown a temper tantrum and had stayed in the Union, slavery would have continued for a long time to come, despite abolitionist progress. We would have gradually moved towards a ban as the expansion and admission of free territories diluted the Slave Power in Congress. But it would have taken a long time and there may have been additional Southern victories that rolled back progress.
Instead, there was a civil war, and hundreds of thousands of Americans died as the country was torn apart. It was worth it because slavery was uniquely evil, but emphasis on "uniquely". You want to avoid civil wars whenever possible, and certainly trying to end abortion, or gun rights, in the way that slavery was ended would be an absolutely horrible outcome for the country.
In the end, what I would say to both abortion opponents and gun controllers is there is no substitute for the long hard slog of convincing your fellow human beings. And you may also lose because your fellow human beings may reject your arguments despite all your attempts at convincing. But you don't get to shortcut that with a law that will lead to civil disobedience.
I've avoided discussing underlying issues because the thing I was interested in was the principle you use to discern between good prohibitions and bad prohibitions, not in the particulars of, say, 1840s Gallup data on whether Illinois voters thought slavery should be "legal in all cases / legal in most cases / illegal in most cases / illegal in all cases." (Man, I'd love to know how a Kansas-style referendum on slavery would have played out! Oh, wait, Kansas tried that... )
I understood your previous reply to argue that a prohibition is bad if it is met by resistance of a sufficiently large minority, because the resistance will render the prohibition ineffective, but with large collateral costs. Thus, in a polity with a large minority of pedophiles, a prohibition on sex abuse would be a bad prohibition; in a polity with a large minority of gun lovers, a prohibition on guns would be a bad idea; and, in a policy with a large minority of drinkers, a prohibition on drinking would be a bad idea. You then raised the example of spanking.
To be clear, since apparently this didn't come through: I don't actually think spanking is anywhere close to being legislatively banned any time soon. You offered a hypothetical, and I rolled with it. (I didn't want Justice Gorsuch to jump up in the combox and scream "DON'T FIGHT THE HYPOTHETICAL! YOU'RE FIGHTING THE HYPOTHETICAL!" at me.) I took your question to be: in the hypothetical world where a narrow majority (or even a sufficiently determined minority) were able to get a spanking ban through multiple legislatures, could this ban ever become effective? Could it become worth it, in the eyes of its advocates? Would the fact of the ban itself help the ban to become more popular over time?
My answer to all three is "yes, given enough time," even though I don't think your hypothetical is likely to come to pass.
Your answer seems more nuanced: you seem to be saying that it is not a good idea to ban something -- even if you think it is very bad, even if you have the votes to outlaw it democratically -- if there is substantial resistance to banning it. You think, instead, that a society should wait until some supermajority threshold (unspecified but presumably you'll know it when you see it) has been passed, at which time resistance will be low enough that a ban can overcome the holdouts. Your principle does not apply to certain other situations where the law jumped out ahead of public opinion / the democratic process (such as, say, Obergefell, or indeed Roe itself) because those cases didn't involve a *prohibition*, and so resistance to them was not destructive in the same way.
Assuming I got that right: fair enough. That was really all I wanted to know.
"...if some large critical mass of Americans is really passionate about doing something, the government cannot effectively ban it, and if it tries to, any reduction in the activity will be accompanied massive disobedience of the law, organized criminal activity, and sharp reductions in civil liberties."
I agree with this, broadly speaking. But I have a follow-up.
We prohibit child pornography. Obviously, (outside of truly brain-melted Rothbardians and actual pedos) everyone thinks that this prohibition is good, and that our aggressive enforcement of the prohibition is better.
Nevertheless, we also know that there is a sufficiently large mass of Americans that is really eager for child porn, such that child porn has never been effectively stamped out, and likely never will be. We know that our prohibition on it has been fuel for organized criminal activity, and that enforcement of it has, at times, led to curtailments (or attempted curtailments) of civil liberties (e.g. the Child Pornography Prevention Act of 1996, struck down in part by SCOTUS in 2002). However, I do not interpret this piece as you advocating for the repeal of child porn bans.
So what's the difference between the prohibitions you oppose and the prohibitions you (presumably) support? Is it because the gravity of the evil to be prevented is so severe that it justifies the collateral damage of prohibition? (If so, you will likely have to persuade abortion opponents and gun opponents that the gravity of the evils they oppose is much less than they currently think!) Or is it because the mass of Americans interested in it (though sufficient to sustain the evil) is smaller than the mass of Americans who demand guns and abortions? (If so, what is the "critical mass" threshold?) Or is it for some other reason? Or have I misread you, and you really are absolutely opposed to less-than-fully effective prohibitions of all kinds?
Basically, I want to know how you tell a "good prohibition" apart from a "bad prohibition," and I haven't seen that explanation elsewhere if you've written it. Cheers.
Thanks for the comment. Accepting your premises, the obvious answer to your argument is that child pornography is so directly harmful to children that we prohibit it anyway. And the "to children" does a lot of work in that argument- i.e., this isn't a group that could organize and convince people to take the issue more seriously, as could someday happen with Prohibition (and which certainly did happen on drunk driving).
But I'm also not sure your premise is right. I.e., let's imagine a society full of pedophiles. That would be an awful society. But really, in such a society, could you actually prohibit child abuse, much as i think we would both agree that child abuse should be prohibited and stopped?
And in fact, I have a version of this that is (thankfully) less extreme than child sexual abuse but might still demonstrate the point- do you think any state could successfully ban spanking or hitting children to discipline them? There are strong arguments that this is child abuse, does a lot of lasting harm to children, etc., but at the end of the day, the popularity of it prevents us from making it illegal.
So honestly, even in the most extreme case (child pornography), if we really did live in a society where a large minority or majority of people thought that material was OK and should be traded and viewed, there would probably be very little we could do about it.
"Accepting your premises, the obvious answer to your argument is that child pornography is so directly harmful to children that we prohibit it anyway. And the "to children" does a lot of work in that argument- i.e., this isn't a group that could organize and convince people to take the issue more seriously, as could someday happen with Prohibition (and which certainly did happen on drunk driving)."
Quite so -- but surely this will apply with equal force for the opponents of abortion, at least insofar as they sincerely believe that each abortion kills a child. (I don't think this works quite so well with guns, although perhaps if I had a bit more imagination.) Of course, this only matters if you buy my premises in the first place, and, of course, as you go on to explain, you do not.
"Do you think any state could successfully ban spanking or hitting children to discipline them?"
Accepting arguendo that spanking is indeed something we should wish to prohibit, this is indeed a pretty good example, because prohibiting it would indeed be a monumental task. I am, however, more optimistic about that monumental task than you are.
I would expect spanking bans to begin in states that are already more hostile to it already. There, on "home turf," the kinks in the laws and enforcement mechanisms and compromises over especially sympathetic cases can be sorted out. The matter can settle, showing the rest of the country how a society that bans spanking gets on. (Answer: probably just fine?) The ground would then be prepared for a national spanking ban (leaving aside whether that's within Congress's power). If some bare majority managed to pass that ban, and then, incredibly, keep it alive against the battery of repeal attempts over the following ten years or so (c.f. Obamacare), it would become part of the landscape -- not necessarily popular, but not going anywhere.
During the first generation of the law's operation, I expect it would do a great deal to reduce spanking. Marginal spankers, who believe in it but not strongly enough to risk prison over it, would desist. There would still be widespread resistance, including organized criminal activity. Actual enforcement against so great a number would be limited, at best. Unfortunately for them, they'd be all but forced to adopt a fairly tolerant view of child abuse, because people who are already defined today as abusers would be a key part of their political coalition; this would give opponents more room to paint the spankers in a bad light.
Going into the second generation, that would start to have an effect. Spankers would have a difficult time passing on their values to their children, because society would be blaring a loud message that spanking is unacceptable -- and there would be criminal penalties attached to behaving otherwise. Anti-spankers, meanwhile, would be supported by media, the news, Respectable Science, the works. The anti-spankers will win more converts in the long run, because their position is legally privileged. The law is a teacher.
Still, resistance will likely continue, until finally, perhaps in the third generation, the majority -- strengthened by decades of experience and confidence in the anti-spanking law, and alarmed by all the spanking still going on -- cracks down on spanking, smashes the infrastructure that supports it, and gets serious about enforcement everywhere. The original half-victory eventually blossoms into a full victory.
This seems not so different from the way we ended slavery and (began to) establish civil rights in this country. At first, the idea of banning slavery must have been simply risible, enjoying no more public support than a proposal to ban spanking would today. Then, it was established in a number of states, and took deep root there. Then, it was established nationally. Alas, despite considerable improvement in the quality of life for Black Americans during Reconstruction, there was massive resistance to their liberation for generations. This lasted until, finally, equality was so deeply baked into the American genome that we developed the political will (aided by MLK and the movement, of course) to finish what we'd started.
A spanking ban -- or an effective abortion ban, or an effective gun ban, or a fully effective child porn ban -- seems as hopeless today as the end of racism seemed in 1820. Yet I think they could succeed... and, if the evils of spanking, abortion, guns, and/or child porn are as bad as their fiercest opponents say, then it seems to me that we have no choice but to try our hardest.
That's how I view it, anyway. You can't slay giant monsters in one fell blow, but you can cut them down one slow, bloody inch at a time -- and having a Prohibition on your side is a big help with that.
Thanks for the reply.
I just disagree in a number of respects:
1. The definition of whether the fetus has the same rights as an already-born child is not a question that can be skipped in this argument. It's precisely one of the reasons society rejects abortion prohibitions. So you can't go right past public opinion by saying "well fetuses are children"- your fellow voters don't agree with that!
And there's a really fundamental point behind that- the pro-life movement, unlike the abolitionist movement, has been an utter failure at convincing people. It has been highly active for 50 years in America and has totally failed to move the needle. Not only does that make it nothing like abolitionism, it puts it even behind Prohibition! Prohibitionists convinced lots of people and moved public opinion substantially in the direction of Prohibition to the point where they could pass a constitutional amendment banning alcohol. In contrast, the American pro-life movement is so pathetically weak and unconvincing that they can't even persuade THEIR OWN VOTERS to ban abortions in Kansas and South Dakota, and have had to resort to dishonestly trying to keep initiatives off the ballot in Michigan!
Given that, you can't say "well, it's protecting children". Convince the American public that it's actually protecting children, and then we can come back with a child pornography analogy.
2. You are just incorrect about spanking. No state is anywhere near banning it,, and any attempt to would be met with fierce backlash and civil disobedience.
3. Finally, while as I point out, the slavery analogy fails on the basic issue that abolitionists actually made arguments that convinced people and abortion opponents do not, you also don't account for the fact that slavery literally required a civil war to ban. Abolitionism made progress and persuaded people (especially up north), but it didn't actually come anywhere close to actually imposing a national slavery ban. Even in 1861, had the South not thrown a temper tantrum and had stayed in the Union, slavery would have continued for a long time to come, despite abolitionist progress. We would have gradually moved towards a ban as the expansion and admission of free territories diluted the Slave Power in Congress. But it would have taken a long time and there may have been additional Southern victories that rolled back progress.
Instead, there was a civil war, and hundreds of thousands of Americans died as the country was torn apart. It was worth it because slavery was uniquely evil, but emphasis on "uniquely". You want to avoid civil wars whenever possible, and certainly trying to end abortion, or gun rights, in the way that slavery was ended would be an absolutely horrible outcome for the country.
In the end, what I would say to both abortion opponents and gun controllers is there is no substitute for the long hard slog of convincing your fellow human beings. And you may also lose because your fellow human beings may reject your arguments despite all your attempts at convincing. But you don't get to shortcut that with a law that will lead to civil disobedience.
I've avoided discussing underlying issues because the thing I was interested in was the principle you use to discern between good prohibitions and bad prohibitions, not in the particulars of, say, 1840s Gallup data on whether Illinois voters thought slavery should be "legal in all cases / legal in most cases / illegal in most cases / illegal in all cases." (Man, I'd love to know how a Kansas-style referendum on slavery would have played out! Oh, wait, Kansas tried that... )
I understood your previous reply to argue that a prohibition is bad if it is met by resistance of a sufficiently large minority, because the resistance will render the prohibition ineffective, but with large collateral costs. Thus, in a polity with a large minority of pedophiles, a prohibition on sex abuse would be a bad prohibition; in a polity with a large minority of gun lovers, a prohibition on guns would be a bad idea; and, in a policy with a large minority of drinkers, a prohibition on drinking would be a bad idea. You then raised the example of spanking.
To be clear, since apparently this didn't come through: I don't actually think spanking is anywhere close to being legislatively banned any time soon. You offered a hypothetical, and I rolled with it. (I didn't want Justice Gorsuch to jump up in the combox and scream "DON'T FIGHT THE HYPOTHETICAL! YOU'RE FIGHTING THE HYPOTHETICAL!" at me.) I took your question to be: in the hypothetical world where a narrow majority (or even a sufficiently determined minority) were able to get a spanking ban through multiple legislatures, could this ban ever become effective? Could it become worth it, in the eyes of its advocates? Would the fact of the ban itself help the ban to become more popular over time?
My answer to all three is "yes, given enough time," even though I don't think your hypothetical is likely to come to pass.
Your answer seems more nuanced: you seem to be saying that it is not a good idea to ban something -- even if you think it is very bad, even if you have the votes to outlaw it democratically -- if there is substantial resistance to banning it. You think, instead, that a society should wait until some supermajority threshold (unspecified but presumably you'll know it when you see it) has been passed, at which time resistance will be low enough that a ban can overcome the holdouts. Your principle does not apply to certain other situations where the law jumped out ahead of public opinion / the democratic process (such as, say, Obergefell, or indeed Roe itself) because those cases didn't involve a *prohibition*, and so resistance to them was not destructive in the same way.
Assuming I got that right: fair enough. That was really all I wanted to know.