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By Root 669 0

the simplicity and ease of avoiding the problem without criminalizing conduct cannot be overstated. Justice John Marshall Harlan, writing for the Supreme Court in Cohen v. California (1971), discussed just such a solution.9 In that case, the defendant wore a jacket bearing the words “F—the Draft” inside a Los Angeles courthouse. While the police and the prosecutors were clearly offended by the display, the Supreme Court found in favor of a Vietnam War protester’s First Amendment right to express disfavor of the draft. Justice Harlan’s response to the offended individuals? He suggested the observers “effectively avoid further bombardment of their sensibilities simply by averting their eyes.” Or, as discussed before, they could simply catch the next bus.

Understood in this light, the push to criminalize a certain activity can be understood as an application of a recurrent theme in this book: Individuals so often prefer to have the state, and not themselves, solve their problems for them because doing so is much more “convenient,” even if it comes at the expense of liberty. Further compounding this problem is the fact that those from whom they demand legal protection are often the least respected, most misunderstood, and hated members of society. Moreover, today’s controversy is often tomorrow’s mainstream culture. How soon we forget the initial public backlash to the music of the Beatles, or even contemporary pushes to ban Harry Potter (for teaching children about witchcraft). In sum, certainly it is inconvenient to carry around earplugs or catch the next bus, but we simply cannot sacrifice liberty for the sake of convenience. Or even worse, sacrifice another’s liberty for the sake of our own convenience.

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What Did the Founders Have to Say?

Given these dangers of profligate criminalization, it should come as no surprise that the Founders enshrined an extraordinarily limited ability for the federal government to make crimes. Article I, Section 8 provides that Congress can only punish treason, “counterfeiting the Securities and current Coin of the United States,” “Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Moreover, Thomas Jefferson famously wrote that all “acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution are altogether void and of no force.”10 In clear contravention of these principles, the federal government is currently able to criminalize whatever it wishes.

As an example, the Supreme Court held in Gonzales v. Raich (2005) that Congress’s constitutional authorization to regulate interstate commerce also grants it the power to criminalize homegrown medicinal marijuana; that is, marijuana not procured through any commercial transaction. In her dissent, Justice O’Connor noted the impropriety of such a law:

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently.11

Thus, ultimately the government’s criminalization of harmless or merely offensive conduct not only deprives individuals of their natural right to choose private behavior; it also allows the government to acquire more power than was granted to it by the Constitution.

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In sum, the answer to the question posed earlier about NYPD Officer Osvaldo Hernandez is: No. There cannot be a legitimate justification for cases such as Osvaldo Hernandez’s. In fact, his story precisely illustrates the evil and tyranny of criminalizing harmless, victimless behavior! We must demand that governments abide by the Natural Law if we are to prevent the government from controlling our lives, aggrandizing power to itself, and at the end of the day, ourselves from sacrificing liberty for convenience.

Private Harm versus Public Harm

We have discussed up to this point the difference between offense and