Equal Protection Under the Laws: The Libertarian Ideal

Thanks to John, I am pointed to these two rather strange arguments in favor of the Drug War and against libertarian use of statistics on race against the Drug War from Jonah Goldberg.  John does a pretty good job explaining why Goldberg’s arguments are so strange.  The only thing I’d really add is that the notion that libertarians don’t normally give a crap about race and poverty is a notion that is borne out of the coalition of libertarians with conservatives – libertarian and classical liberal philosophy, when divorced from coalition politics, actually have quite a bit to say about the problems of poverty and laws that disproportionately single out politically less powerful groups. 

Goldberg also makes this odd statement:

A justly convicted murderer should be punished regardless of his race. A justly convicted drug dealer should be punished, regardless of his race as well. If we’re punishing a disproportionately high number of blacks, that’s a sign we should crack down on more guilty whites, not give up on punishing crimes.

This is particularly puzzling because Goldberg has argued that anti-statism is at the core of conservatism and is also why libertarians should continue to coalition with conservatives.  Obviously, increasing drug prosecutions is not only inconsistent with any conception of limited government, it’s also an expansion of the size of government.  And not an insignicant expansion either, given that this can definitionally only be achieved by pursuing people with enough resources to put up a tough fight against drug prosecutions (a fact that at least partly explains the socioeconomic discrepancies in such prosecutions in the first place). 

Goldberg’s statement does indirectly suggest one point worth exploring, though – that human liberty is increased when laws are enforced more uniformly; unfortunately, he takes this point to be a justification for the expansion of drug prosecutions. 

Much has been written of late about the difference between small and limited government – specifically, small government refers only to the fiscal “size” of the government, whereas limited government refers to the government’s actual powers.  If you accept that the State must exist, as even most libertarians do, then one must have a desire that the Stated do well that which it is authorized to do.  If the State does its job poorly, then it will actually have a more negative impact on individual liberty than if it does its job well, because at that point enforcement of the laws becomes arbitrary and based on one’s ability to curry favor with the State in some other non-germane arena. 

If, on the other hand, the State does its job well, then people may act in reliance upon the law being enforced equally without regards to other issues.  So there may be a marginal decrease in liberty due to the existence of the law in the first place, but this is mitigated by the fact that uniform enforcement ensures that people may act in reliance upon the law and without having to curry favor with the State in some other arena.  This means less State corruption, less connection between wealth and power, and less fear of interference from the State more generally. 

The trouble is that very often uniform enforcement is simply not possible due to the State’s limited resources.  Put another way, in the words of the inestimable Wirkman Virkkala, “regulation is not scalable.” 

In the case of the War on Drugs, this problem is particularly apparent.  For any given drug, there are going to be potentially millions of users spread out over a vast country.  The only way to have uniform enforcement of the drug laws in such a situation is to have an incomprehensibly large budget far bigger than the already-incomprehensibly large Drug War budget we have.  Other programs, some of which may or may not be enforced in a relatively uniform fashion will need to be  scaled back (and thus enforced more arbitrarily).  Short of that, given the nature of prohibitions on the possession of banned personal items, the only way to truly enforce the law uniformly would be to turn our neighbors and friends into de facto secret police.

Still, under some circumstances, I suppose it’s possible to enforce such prohibitions in a more or less uniform fashion without creating a de facto secret police force – whatever Singapore’s flaws (and it has many), drug use is not something that flourishes there.  Part of that, though, is that Singapore is a tiny nation geographically, and another part of it is that it spends very little on many other types of restrictions, such as economic regulation. 

Which brings me to my final point – even regulations that are not outright prohibitions can be uniformly enforced only if they govern a sufficiently small number of actors or if the enforcing agency has the very substantial amount of resources necessary to enforce the regulations uniformly over a large number of actors.  Again, they are not scalable.  If the regulations are to apply to more actors than the agency has the resources to oversee, then the only solution an agency may follow will be to make the regulations so restrictive as to ensure the reduction of the number of actors over whom they have jurisdiction.  In other words, regulatory capture doesn’t just benefit the capturing business – it also benefits the captured regulator.

There is, I think, a solution to this problem: terminate any set of laws or regulations that cannot be uniformly enforced without an unrealistic budgetary expansion, and fully fund those laws or regulations that can be enforced in a relatively uniform fashion.   Unfortunately, this is impossible in a two-party system where the Executive is increasingly viewed by both supporters and detractors as omnipotent and where few are willing to admit the unrealistic nature of their pet programs.

Cross-posted at Donklephant.