Sigh

It was Glenn who brought up smoking, and so Jonah is merely replying to his argument rather than postulating that gay marriage has second-hand effects. For all I know Jonah doesn’t even believe that smoking has second-hand effects.

How can I support anti-smoking legislation while still supporting gay marriage? Well, for starters, I can go into a room full of gay married couples and not come out with my hair and clothes REEKING (unless, of course, they are gay married smokers).

Gaah, Jonah Goldberg gives “mouth-breathingly stupid” a whole new meaning.

More Dogs is correct – Goldberg responds to Kerr and his argument is not as absurd as Holbo suggests. The smoking “analogy” is not uninstructive. Goldberg is right that while smoking isn’t banned per se, it is heavily regulated. Likewise, while consensual sex isn’t banned per se (not any more, since 2003), it too is heavily regulated – can’t do it on the beach etc. So the conclusion seems to be that the state may regulate certain behaviors – presumably on rational grounds – even if banning them altogether would be regarded as an unacceptable infringement on basic individual rights. So the real analogy seems to be this: if even smokers have the right to marry, why shouldn’t gays?

5: Goldberg responds to Greenwald, of course.

As much as its writing has improved over the last three or four years, it’s probably worse on the balance that Pfork has achieved hegemony in “received wisdom” about contemporary pop music. They have too much of a house-taste for that role—and there seem be to be no viable alternatives in terms of the amount of coverage (especially considering most of the comparable indie blogs suffer from the influence of the numerical scale and Best New Music badges).

He’s lying

Technically, no: if the *government* had public service announcements against being gay, that would mean the government would have to pay for it, which would mean taxes, and he wouldn’t like that. He would agree with the content of the ads, of course.

Or, to give him more credit than he probably deserves, he might agree with the message while still feeling the government shouldn’t push it on anyone who doesn’t agree.

I believe there are jurisdictions in which you aren’t even allowed to smoke in the privacy of your own home without children around

“Madam neighbor, I’m having a tremendous nicotine craving–may I borrow one of your children?”

Look, gotta go with the meta-comment: you should seriously consider not posting about Jonah Goldberg. Ask yourself this: when was the last time he made an interesting point? And, when was the last time you ever learned something by reading the stuff he writes? I hate to say it – but you’re posting about garbage.

Yes, but IF it were the case that gay marriage caused cancer – and especially if it might do so in other people who lived in the neighborhood – there would be no problem establishing a legitimate state interest in banning it. Goldberg is, allegedly, a classical liberal who has no concept of the ‘harm principle’, apparently.

But although it obviously doesn’t cause cancer, there are still very real psychic costs associated with gay marriage – that much, at least, should be clear from the amount of effort expended on attempts to ban it. So if you’re of the opinion that the state has a compelling interest (or even only a prima facie compelling interest) in intervening in any scenario which looks remotely like it might impose externalities, it seems to me that you’re out of luck when it comes to defending gay marriage on these grounds. I think that what Goldberg is objecting to is the way in which some costs (i.e. cancer) are considered fair game for state intervention, while others (i.e. the subjective harm felt by opponents of gay marriage when faced with gay marriage) are dismissed, and (insofar as I’m reading him right), I think he has a point.

“Psychic cost” in #19 is a magical new concept that permits a quasi-economic analysis of the value of prejudice. Consider the “psychic cost” of being forced to share public facilities with dark-skinned people, or the “psychic cost” of hearing bad pop music. The “psychic cost” of accepting the concept of psychic cost may leave us all intellectually bankrupt.

I don’t know which is going to be more depressing. The fact that the GOP is about to nominate Sarah Palin as their 2012 Presidential Nominee or the fact that Johnah Goldberg appears to be in front spot for running mate or the fact that a Palin/Goldberg ticket will attract a stupefyingly large percentage of the vote.

Even banning smoking in your own home, where it is no danger to anyone else, is not a plausible violation of the 14th amendment because the state can, at the very least, make a compelling case that it isn’t just expressing pure moral disapproval. It’s trying to prevent cancer, which everyone agrees is a bad thing. (And it’s trying to keep health costs down. There might be an externality there.)

Get back to me when they ban alcohol – the externalities (e.g domestic violence, rape, assault, mental and developmental disorders, lost productivity, ruined lives) are a gazillion times greater.

Get back to me when they ban alcohol – the externalities (e.g domestic violence, rape, assault, mental and developmental disorders, lost productivity, ruined lives) are a gazillion times greater.

(0) I believe that’s been tried already in the US, and failed. Alcohol is far easier to make than tobacco is to grow.

(1) Tobacco — in cigarettes, at least —has been specifically designed to be addictive, and, it seems to me, is therefore more reasonably regulated.

(2) The ‘externalities’ you mention are due to the abuse of alcohol, which can be addressed through other means. Tobacco, on the other hand, endangers others and adversely affects their environment through its normal, prescribed use. Banning it is on par with banning the use of lead in petrol.

It depends on your definition of ‘failed’.

Increase in organised crime, at last 10,000 deaths due to poisoning by drinking denatured alcohol (because of government-mandated poisoning of industrial alcohol), loss of tax revenues, increase in extent of police powers and concomitant rise in expense, no significant reduction — and perhaps an increase — in consumption of alcohol, and increased contempt for the law — I should think that’d do for starters.

And, due to the devastation of the extent brewing industry, the rise of American lager beer, which is surely horrific enough a result to put anyone off the idea of repeating The Noble Experiment.

And what if you can get homosexuality second-hand? The problem with smoking is not that you can get it second hand but that it ultimately kills you, isn’t it.

Alcohol is already regulated by age and it is, in fact, banned from sale in some counties and cities in the Lower 48 and in parts of Alaska, some native villages, it’s illegal to even have it on site. Furthermore, even if it weren’t regulated that isn’t an argument for not regulating ciggies, is it? It might be an argument for tighter regulation of alcohol, short of prohibition, but failure by the state to regulate something as much as someone thinks necessary doesn’t really touch the justification for the regulation of some other dangerous substance.

Interestingly, the argument John H. is trying to make here is precisely the one developed by Amartya Sen in “The Impossibility of a Paretian Liberal,” the essay John so catastrophically misunderstood in this space a while back.

Liberalism is never pure consequentialism, it never defines the good as maximum utility. It always explicitly defines only certain preferences as eligible for public consideration. This, in a sense, is simply what the word freedom means in a liberal context. The happiness you get from saying something unpopular may be less than the unhappiness it causes those whose prejudices it offends, but in a liberal order my preferences over the content of your speech get no weight. Similarly, you can’t sell your vote, even if that would be Pareto-improving, because the onlly preferences that count for purposes of your voting are your own. These rules can’t be deduced from first principles; one of the key characteristics of liberal politics is that it explicitly defines particular spheres as private.

So here, the difference between the non-smoker with stinky clothes and a risk of second-hand cancer, and the heterosexual with the unpleasant (to them) awareness of gay people and the greater risk of their son coming out (like Jim’s nephew at 28), isn’t that one is “real” and the other isn’t. From the subjective standpoint of the person experiencing them they are equally real. It’s that the liberal political order in its current American form says that preferences over your own clothes and body are eligible for public consideration and preferences over other people’s sex lives are not.

There was a constitutional amendment for national prohibition, but many states had gone “dry” beforehand. So, at least back then, state alcohol bans were not considered inconsistent with the 14th amendment. It’s a pity there’s this all-or-nothing dichotomy, because Mark Kleiman argues that a tax on alcohol could deter the most problematic drinkers while having little effect on those who enjoy a more moderate consumption of booze.

Maybe the Proposition 8 proponents could have Jonathan Katz (I hear he’s not busy with the gulf oil spill anymore) testify in favor of the smoking analogy, although the logic of his argument would argue in favor of marriage.

Lemuel Pitkin @37 – Thanks for that. It articulates something I have been trying to explain clearly (in various discussions) for a long time. Do I have to cite you every time I use it in conversation? ;)

@37 “It’s that the liberal political order in its current American form says that preferences over your own clothes and body are eligible for public consideration and preferences over other people’s sex lives are not.”

This is a demonstrably false equivalence, since the former preference concerns the avoidance of a probability of demonstrable physical harm (second-hand smoke) and the latter concerns a notional “psychic” harm (possible future embarrassment over overtly gay family members).

An analogous false automotive equivalence would be arguing that automobile owners should be legally required to have working pollution control equipment (avoid physical harm) and should also be compelled to remove offensive bumper stickers (avoid psychic cost).

JanieM-

Thanks! Cite Sen, not me — I’m just paraphrasing his argument. (Which admittedly he presents less clearly than he might have.)

Liberalism is never pure consequentialism, it never defines the good as maximum utility.

Debatable. As far as it is purely democratic, it is consequentialist–what is a vote but applied consequentialism? It’s the non-liberal aspects (ie laws decided by judges appointed to office via non-democratic means) that restrain the potential mob power of democratic consequentialism. Which is to say Madison may have been “more progressive” than Jefferson because he did not want to subject all decisions to a popular vote.

Traditional liberalism–like that of Locke in Two Treatises oCG– was purely democratic, and in theory opposed to the monarchy and magistrates for that matter. Jefferson thought in those terms as well, as did the anti-federalists (–not to say Jacobins). These days US liberals tend to view the judiciary as a bastion for liberalism, but that is a recent development and historically incorrect (or..perhaps most US liberals are merely crypto-Tories).

Per Lockean tradition, standing courts were considered monarchistic (deuxieme état). While the Federalists were hardly perfect they did fear the mob power of democracy unleashed–that was the classical view (ie Plato’s Republic…where the Lockes of the time are considered rebels). Fairly obvious but the elitist sorts of Dems have more or less deconstructed political discussion

Lemuel: “Ah, but the whole question is exactly what constitutes infringement on other people’s rights.”

I don’t think that is “the whole question”. I haven’t heard anybody make the argument that, say, owning a half ounce of mushrooms somehow infringes on other people’s rights and that is why that person has to go to prison. Maybe that kind of argument is somewhere but I have never heard it. Likewise I have never heard somebody argue that my getting drunk alone in my home bothers anybody else. There are to be sure all kinds of issues around drunk driving, public drunkenness and protection of children. But they are separate from saying that merely consuming a substance that some part of society disapproves of can be made a criminal offense.

Your examples don’t help much. Childraising by definition implicates another person whose rights deserve protection. And health? There is an argument that unhealthy behaviors should be subject to regulation because they may cause costs to society at large. But we don’t really go there, at least not yet. Anti-tobacco laws are predicated on protecting non-smokers, not on forcing smokers to give up their habit. Taxes on sugar and the like have been discussed but that is a far way from criminalizing people for liking sugar, and the ban on trans fat doesn’t burden consumers, only producers. As far as I can see, drug prohibition is the only instance that we actually put people in prison to “protect them from themselves”, rather than to protect others.

(By the way, I absolutely agree with you about the barbarity of our drug laws. In fact, I spent several months working on the campaign of David Soares for Albany District attorney, one of the very few prosecutors in the country — certainly the first in New York — to have won election on an explicit platform of reducing drug sentences. But we are not doing our side any favors by deluding ourselves that our position is the only rational one or that it can be deduced seamlessly from first principles. Rights are complicated things, and inevitably historically contingent.)

Lemuel 52, I would contend that almost all existing tobacco restrictions can be justified by the interest in preventing harm to others. It is true that there is a tendency to go further, into a paternalistic approach, which I find worrying (even as a nonsmoker).

Concerning drug policy, I think we should use all the arguments at our disposal. The war on drug isn’t working, and it’s also wrong on principle to let the government decide what drugs grownups can consume. (Plus, George Washington was a hemp farmer and we should defer to the judgment of the founders.) Drug prohibition IS a civil rights issue and there is no reason to not make that argument forcefully. We should not hesitate to hold conservative self-described “small government” propagandists accountable for their support of Big Government drug policies (almost all of them do).

“Rights are complicated things, and inevitably historically contingent.”
Just because legal arguments can be twisted doesn’t mean we have to subscribe to anything goes. The principle that the state shouldn’t tell me what to do in private as long as it doesn’t harm anybody else is understood by everybody – liberal, libertarian and most conservatives would agree when asked.

LF C 46. Yup – I think the latest statistics show that the true figure is closer to a squillion.