Let’s say you — or someone you care about — had a few drinks one night and, knowing it would not be a good idea to drive, decided to let a sober person take the wheel.

Did you realize you can still be charged with a criminal offense? It’s true. The Indiana Supreme Court just affirmed this in Moore v. State.

. . .

Indiana’s public intoxication law is horrendously vague and depends upon the arbitrary discretion of law enforcement, which means it is open to possible abuse.

Worst of all, this law makes criminals of peaceful people who are not harming others. Lysander Spooner made an excellent case way back in the 1870s when he said “vices are not crimes.” He writes, “Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another.”

When a law exists that can rightly be interpreted to say that one can commit a criminal offense even while sleeping in the passenger seat of a car, clearly we have a problem.

Harbeson blames the law rather than the Indiana Supreme Court for this ridiculous result, but her assumption that Indiana’s public intoxication law “can rightly be interpreted” to say what the Indiana Supreme Court in Moore said it says is misguided. In fact, in this post I quoted something else Lysander Spooner wrote to explain why the Indiana Supreme Court’s decision in Moore is as wrong as it smells.

***

In other Spooner-related news, Randy Barnett, the proprietor of lysanderspooner.org, further shores up his mainstream conservative Republican bona fides in a post at the Volokh Conspiracy expressing gratitude for “capitalism” and “the rich.” The attitudes of Spooner himself were very different.

But hey, I still have to give Randy props for lysanderspooner.org, where you can read Vices Are Not Crimes.

Has Barnett read the recent USA Today retrospective which “lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes” during his 20 years on the SCOTUS?

I can only assume that he has, and that the former prosecutor shares Thomas’ disdain, as it would be consistent with Barnett’s apparent disdain for the innocent victims of War.

For my part, I prefer to highlight as edifying stories like this one about the Wisconsin Supreme Court, this one about the Michigan Supreme Court, this one about the Indiana Supreme Court, and yes, the USA Today story about Justice Thomas referenced above as well as this recent NYT story, which Barnett characterizes as “advancing another empty charge against Justice Thomas.”

Lysander Spooner would be so very proud.

Tolstoy said it better:

All men are brought up to the habit of obeying the laws of the state before everything. The whole existence of modern times is defined by laws. A man marries and is divorced, educates his children, and even (in many countries) professes his religious faith in accordance with the law. What about the law then which defines our whose existence? Do men believe in it? Do they regard it as good? Not at all. In the majority of cases people of the present time do not believe in the justice of the law, they despise it, but still they obey it. It was very well for the men of the ancient world to observe their laws. They firmly believed that their law (it was generally of a religious character) was the only just law, which everyone ought to obey. But is it so with us? we know and cannot help knowing that the law of our country is not the one eternal law; that it is only one of the many laws of different countries, which are equally imperfect, often obviously wrong and unjust, and are criticised from every point of view in the newspapers. The Jew might well obey his laws, since he had not the slightest doubt that God had written them with his finger; the Roman too might well obey the laws which he thought had been dictated by the nymph Egeria. Men might well observe the laws if they believed the Tzars who made them were God’s anointed, or even if they thought they were the work of assemblies of lawgivers who had the power and the desire to make them as good as possible. But we all know how our laws are made. We have all been behind the scenes, we know that they are the product of covetousness, trickery, and party struggles; that there is not and cannot be any real justice in them. And so modern men cannot believe that obedience to civic or political laws can satisfy the demands of the reason or of human nature. Men have long ago recognized that it is irrational to obey a law the justice of which is very doubtful, and so they cannot but suffer in obeying a law which they do not accept as judicious and binding.

(Scalia has said as much too, taking it to an absurd and self-contradictory conclusion.)

But such an understanding, although necessary, is not sufficient for a real anarchist. After all, a relatively enlightened man might recognize that the modern State is of no authority and yet still support its dominance and power as a “necessary evil.”

Anarchy, etymologically, means leaderlessness. [Thomas Knapp notes here that he understands anarchy to entail “rulerlessness,” not “leaderlessness,” and that there’s a difference. My clarification is here.] Anarchism supposes that such “leaderlessness” rather than the Hobbesian dominance of a leading power is the fundamental condition of peace and justice. It therefore entails in the political context the distribution and balance of power, as well as the rejection of authority. An “ideal” world of individuals in which power was completely distributed and balanced equally among them (i.e., a world approximating albeit more ideal than the “state of nature”) would be a world in which rights were absolutely secure, since no individual would have the power to overcome the rights of any other. But in the real world one man will have more power than another and enough to overcome his rights, or may conspire with other men to do so. To guard against this threat men may associate or contract with others to balance the threat. But if their true purpose in doing so is only to secure their own rights, and not to conspire to violate rights themselves, their associations will tend to maintain (both internally and externally) as much of the state of nature’s indigenous “leaderlessness” and equilibrium as possible. Randy Barnett has suggested one way in which this tendency might work out in the real world:

Some libertarians prefer a different legal structure, one that promises to work better than the structure provided by the Constitution. Such a structure would take the principles or strategies embodied in the Constitution farther than did the Framers. These principles are (1) reciprocity of power between the ruler and the ruled that is supposed to be accomplished by voting, (2) checks and balances on power that are supposed to result from federalism and separation of powers, and (3) the power of exit that is provided by free emigration and, formerly, the power of secession. These libertarians merely propose two itsy-bitsy, teeny-weenie changes to the status quo: First, end the government’s power to put its competitors out of business by force (which violates the freedom to contract of those who wish to provide and obtain such services); second, end the government’s power to confiscate its income by force (which violates the freedom from contract of those whose property is taken without their consent). Not much really.

What these libertarians hope and expect would result from these two changes is the evolution of a polycentric constitutional order in which one would subscribe to a legal system of one’s choice as today one subscribes to cell phone service, health and auto insurance, or private security providers. The ability of buyers to withhold their patronage and payments from sellers is the most powerful form of reciprocity. Having competing separate legal systems would provide far more effective checks and balances. And simply by switching justice and law enforcement providers, individuals would be able to assert the power of exit without leaving home. Of course, there is much more to be said about all this, which I explain in far greater detail in my book, The Structure of Liberty: Justice and the Rule of Law (Oxford, 1998).

(John Hasnas has suggested another way.)

But how might we ever get to a point where the United States government could be taken down to a size reflecting its true nature as a merely human organization like other human organizations, and its power balanced by other powers in society, to the end that our rights might be better secured? First and foremost, by speaking, or at least not denying, the truth. To that end, there’s a lot of speech we could do without:

Flags

The Pledge of Allegiance

The National Anthem

Oaths to support the Constitution

Parades for police officers or soldiers killed in the line of duty (since we don’t have parades for private security guards killed in the line of duty)

Voting

Addressing judges as “Your Honor”

Etc.