It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [141]
Most fundamentally, the criminalization of victimless offenses rests upon the doctrine of legal paternalism. Under the legal paternalism concept, the government views itself, and not us, as in the best position to regulate our daily conduct. Thus, where this concept prevails, like in New York City, for example, we have the Nanny State (too much salt in your food, too much trans fat in your diet, wasteful light bulbs in your lamps, etc.). However, this directly violates the Natural Law principle that no government can be above the individual, since a government is a human creation, and the creature is always subservient to its creator. Additionally, the content of those laws themselves will be the product of the moral tides of the day, and not immutable Natural Law principles which inhere in the order of things.
Moreover, to illustrate the practical impropriety of legal paternalism, consider criminal prohibitions on various forms of gambling, for example. At what point in time did the government decide that it is in the best position to tell you how to handle your finances and restrict your ability to gamble? Was it in September of 2007, when our nation’s national debt began to rise on an average of $4.13 billion per day?8 If you were to mimic the government’s handling of its finances, how balanced would your budget be?
The central evils of criminalizing offensive behavior, however, are the exaltation of the state over the individual and the use of this exaltation as the primary mechanism to assert control over persons. By limiting what you can or cannot do, the government’s criminalization of harmless conduct restricts liberty and freedom on a daily and constant basis. At any point in time, it is astonishing how many criminal codes we are subject to. You want to jaywalk to make your dentist appointment on time? You can’t. You want to sit on a park bench and eat your dinner after sunset? You can’t. You want to ride your bike to the grocery store without lugging along a helmet? You can’t. You want to skateboard in front of the courthouse? You can’t. You want to bet money with your favorite bookie on your favorite baseball team? You can’t. You want to buy a drug not approved by the FDA? You can’t. You want to cool off with a beer on the beach? You can’t. You want to talk on your cell phone while driving safely? You can’t. You want to paint the fire hydrant (on your property) in front of your house green to match the grass? You can’t. You are on an empty subway car, and you want to put your packages on the seat next to you. You can’t. You want to collect rainwater on your own property for your own consumption? You can’t. The bottom line is every law, regulation, rule, and ordinance made by the state affects your behavior in some way, and the government has more control over you than you could ever imagine. And there can be no more effective way of controlling your moral and behavioral standards than by threatening to brand you with society’s most powerful stigma, as a criminal, thus destroying life projects, careers, and family ties. Everything that the government does either compels or restrains, under the threat of force. Government is the negation of liberty.
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Moreover, the aggregation of control may seem like a small issue today, but could end up being a larger and more invasive issue tomorrow. With the lengthening and growing complexity of the criminal code, the criminalization of the subjective whims and sensibilities of the Congress may become status quo. And then we will never know what it feels like to truly be free. In this way, the government is also able to aggrandize power in itself by increasingly controlling the lives of its citizens.
Finally,