Jacob Weisberg, in Slate, says that the spirit of Prohibition is dead, and those laws which still maintain elements of that spirit–stopping gay people from marrying, stopping sick people from buying marijuana, stopping businesses from building resorts in Cuba–are on their way to becoming laughingstocks:
The chief reason these prohibitions are falling away is the evolving definition of the pursuit of happiness. What’s driving the legalization of gay marriage is not so much the moral argument but the pressures from couples who want to sanctify their relationships, obtain legal benefits, and raise children in a stable environment. What’s advancing the decriminalization of marijuana is not just the demand for pot as medicine but the number of adults—more than 23 million in the past year, according to the most recent government survey—who use it and don’t believe they should face legal jeopardy. What’s bringing the change on Cuba is not just the epic failure of the 48-year-old U.S. embargo, but the demand on the part of Americans who want to go there—whether to visit their relatives, prospect for post-Castro business opportunities, or sip rum drinks at the beach. For similar reasons, there is not likely to be any retreat on the basic legal status—as opposed to tinkering around the margins—of the right to have an abortion or own a gun. Conservatives would be wise to give up on the one, liberals on the other. In each of these cases, popular demand for an individual right is simply too powerful to overcome.
Weisberg makes a decent case, but I think he goes too far: I think the ability of local (and perhaps occasionally state, or rarely even national) communities to democratically speak to what they like and what they don’t is an important principle, one to be defended against the “evolving definition of the pursuit of happiness”:
[T]he “popular demand for an individual right” isn’t necessarily the death-knell for the prohibitionary or sumptuary mindset. [Weisberg] calls prohibition today more about “omission than commission”–meaning, I suppose, that he sees certain policies today (regarding gay marriage, or marijuana, or Cuba) as showing a misguided reluctance to admit the inevitable. But to call the failure of any individual prohibition inevitable is to assume that the individual is the only and the sovereign actor in each and every case, and that’s not true. Individuals are in part made from their environments, and collective environments can be controlled. Any such control will be, of course, either welcomed or resisted by particular individuals, and off we go to the complicated realities of political life. But those complications won’t ever wither away, I think. There’s a tension between the individual and the community, between choice and culture, that’s as old as modernity, if not much older. Weisberg’s “big idea,” by contrast, is just a quick and superficial political judgment about the current state of play in the United States about something much bigger than the country itself.
Anyway, as we used to say on the internets, read the whole thing, if you’re so inclined.