Since Caleb wants to argue about it, I will comply. This is a post that I wrote back in November; nice to see it get some attention now…
Jacob Weisberg has taken on a difficult target in an essay in Slate: the Prohibition. “When the 18th Amendment went into effect in 1920, it was a radical social experiment challenging a custom as old as civilization….Today prohibition is a byword for futile attempts to legislate morality and remake human nature.” Pretty bravely contrarian there, Jacob! So the Prohibition was a “gross insult to individual rights” and a “predictable failure,” huh? Well, that’s too big a target for a communitarian like myself to pass up.
Of course, Weisberg isn’t really attacking the Prohibition, and I’m not really going to defend it. (Though–as one who thought highly of the years we lived in a dry county in Arkansas–I would argue that he passes over the actual historical record of the Prohibition much too casually; see here for some links to discussions over the larger and multifaceted questions of to what degree and in what way Prohibition really did “work.”) What he’s attacking is the notion of prohibition–technically, I suppose, the idea of prohibiting anything, really, when said prohibitions “fail to keep pace with a liberalizing society”–and what I’m defending is the opposite. Or, at least, I would claim that certain kinds of prohibitions–including but not limited to sumptuary laws of various kinds–are a lot less easy to discredit than Weisberg apparently believes.
His chosen targets are “laws that prevent gay marriage, restrict cannabis as a Schedule I Controlled Substance, and ban travel to Cuba.” But he doesn’t actually attack the substance of any of those laws; rather, he sees them all as fading into irrelevance in the face of “the evolving definition of the pursuit of happiness.” In issue after issue, Weisberg claims, “popular demand for an individual right”–to marry whomever you love, regardless of gender; to smoke a mostly harmless and sometimes medically beneficial recreational drug; to travel and do business in an island 90 miles from Florida–“is simply too powerful to overcome.” He does allow that there may likely be some qualifications and variability in marginal cases, but overall is message is that prohibition, as an idea, is over, and that Democrats and Republicans alike (with their concerns about guns and abortion, for example) need to get out of the way.
Since he’s not attacking these laws, I don’t see a need to defend them. (For the record, though: marijuana doesn’t strike me as any more dangerously addictive and potentially harmful than such legal-yet-restricted products as, say, alcohol and tobacco; the embargo on Cuba has been pretty pointless from the start; and my complicated feelings about same-sex marriage are something I’ve talked about more than enough already.) But his overall argument against prohibition in general has a couple of huge holes in it, and I might as well point them out.
Towards the end of his piece, Weisberg confidently places technology on the side of the liberationists: “In a world where everyone has his own printing press, restrictions on private behavior become increasingly untenable.” But that is simply false–or at least, simplistic to the point of meaninglessness. One can just as easily argue the reverse: that in the age of the internet, we have become increasing obsessed with what our neighbors are doing, with who is moving in next door to us, with who said what about who; cyberbullying, Megan’s Law, hate crime’s legislation and more are all expressions of at least partially internet-empowered popular demands for our individual “private behavior” to be subject to public scrutiny and possible sanction. Apples and oranges, you say? Perhaps. Weisberg’s examples of information running free and, by being so available, consequently affecting how people judge what is “normal,” what they can co-exist alongside with without finding their own choices and ways of life threatened, make sense. But they aren’t the whole story, of course; as my above examples suggest, the proliferation of information can just as easily generate paranoia, suspicion, and overreactions in the form of laws which erect prohibitions, rather than tear them down. All of which leads to a deeper point which Weisberg doesn’t reckon with (but should).
Exactly how does our “definition of the pursuit of happiness” evolve, anyhow? It doesn’t happen on one’s own. It happens through time and space, through communities and history, through one’s awareness of and involvement with others, past and present and future. Weisberg would obviously agree with this; otherwise, his claim that the internet alone–the raw force of all these options and lifestyles and possibilities, displayed at the touch of a button–contributes to making prohibitions laughable wouldn’t make sense. But if so, doesn’t it make just as much sense that communities can take control of their own development, emphasize certain portions of the past and project intentions into the future, and by so doing contribute to how the members of said communities define the pursuit of happiness? Of course it does–that’s called “culture” (or “popular sovereignty,” or “participatory democracy”; take your pick), and I find it hard to believe that Weisberg would dispute that either. Which means that the “popular demand for an individual right” isn’t necessarily the death-knell for the prohibitionary or sumptuary mindset. He 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.
Of course, Weisberg may well be right about the three specific prohibitions he mentions. As I said above, I won’t waste any pixels defending any of them in particular. But I do defend prohibition. Not all or any prohibitions, but some. America’s experiment with a federal prohibition on alcohol–expressed through various laws and, ultimately, the 18th amendment–was ultimately flawed, I suspect, because it was too big: it allowed the passions of some parts of the population (including such strange bedfellows as Methodists, Southern Baptists, Progressives, feminists, and radicals from the South and Great Plains) to claim a moral consensus over everyone else (Roman Catholics, German Lutherans, immigrants from all parts of Southern and Eastern Europe, ordinary folk from big cities across the nation), and enforce that consensus accordingly. The harms that came from such a huge operation, whatever its arguable benefits, were many. By contrast, as I mentioned above, our old residence of Craighead County, Arkansas, had its own alcohol prohibition in place, and while the controversies continue–and why wouldn’t they? it’s a free country, after all–it seems that the community has survived it’s collective decision to ban alcohol relatively well. At least, the folks who live there continue to value that kind of popular sovereignty, and it hasn’t exactly led to a rush of political unrest, violence, and organized crime. So maybe it just depends on how any given prohibition is set up, and how many people, with all personal desires as well as their identification with and their aspirations for the community in which they live, can be fairly said such a prohibition might include.
Which is all just a long-winded way of saying that any democratic decisions, whether prohibitionary or otherwise, really must begin with figuring out what the borders of the relevant community are, so as to enable the people–the demos–so included to speak. Figuring out which prohibitions and which rights really are the business of the national government (and, despite my occasional localist sympathies, I acknowledge that many are), and which are best handled by the states, or counties, or cities, all the way down, is complex matter, for which there probably can never be any simple solution. But knocking aside the whole matter of prohibition as something on its way out, Weisberg does, because “the pursuit of happiness” has spoken, doesn’t respect that complexity at all.