It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [139]
Let us return to Feinberg’s bus and its unsavory passengers. While the passengers’ conduct is, at times, highly offensive and extremely unpleasant, their conduct is ultimately harmless, or in other words, it falls short of violating any natural right. Although their actions may be quite reprehensible, the characters on that bus are no more deserving of criminal punishment than putting one’s elbows on the table during dinner.
According to Professor Feinberg in his magnum opus The Moral Limits of the Criminal Law, the unpunishable offenses perpetrated on the bus can be categorized in six ways. The malodorous, strobe light–carrying, stereo-blasting man is an affront to the senses. This infliction to the senses may be annoying and perturbing, but you can plug your nose, close your eyes, and cover your ears—or more simply, catch the next bus.
The second category compels feelings of disgust and revulsion in the spectator and includes the drooling, burping picnicker of cockroaches and rotten eggs. These unfortunate reactions are not affronts to the senses, but rather affronts to subjective sensibilities. You may be sickened or nauseated, but the behavior does not, however, add up to harm. While disgust and revulsion are disagreeable emotional effects, again, one can look away from the woman so as to avoid a sour stomach or catch the next bus. Moreover, such subjective sensibilities are often the product of one’s local culture and familial upbringing. It is no more logical to criminalize the picnicker’s conduct than to criminalize the selling of foie gras (as Chicago did in 2006),6 fried frog legs, or bull testicles (euphemistically known as rocky mountain oysters), as repulsive as they may seem to some of us. Not surprisingly, the criminalization of offenses can be used to discriminate against cultures which cannot command a political majority, such as when Parliament banned the playing of Scottish bagpipes in 1747 after the final suppression of the Jacobite risings one year earlier.
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While the second category could be called affronts to “lower order sensibilities,” the third category involves shock to moral, religious, and patriotic sensibilities, or “higher order sensibilities.” These are higher emotional responses digging deeper than mere gut reactions such as disgust and revulsion. This type of offense is a gross violation of some kind of neighborhood principle, including the bus’s pallbearer who wears offensive religious clothing or who desecrates the country’s treasured symbol. As a religious individual, you may be deeply offended by the religiously offensive T-shirt worn by the youth; however, his behavior in no way harms you personally. Moreover, since desecration of the American flag is purely symbolic, criminalizing it is really just another way of punishing a thought and the expression of an idea. It is a flag burner’s distaste for the United States, and not the actual destruction of a material thing, which people find so repulsive. And if the government has the ability to regulate our thoughts—the innermost realm of the individual—then we truly have no freedom whatsoever.
Extreme deviations from prevailing standards of “normalcy” induce feelings of shame, embarrassment, and anxiety, which are encompassed in the fourth category of un-punishable offense. The overly affectionate and sexually inappropriate couple on the bus is a prime example. Their actions constitute ordinary and acceptable ways of deriving sexual pleasure when done