But it makes sense from a legal standpoint. If the law gets too far ahead of what people are willing to obey, they won’t obey, and that’s no way to create a law-abiding society. Prohibition failed in large part because millions of people who had been perfectly ordinary citizens became lawbreakers overnight. And if the speed limit on a stretch of highway is 55 mph, and everybody using it drives 70, perhaps the drivers know something the regulators don’t. Call it crowd-sourcing the law.
And heaven knows it’s hard to argue that we don’t have enough laws. Even conservative observers like the Heritage Foundation have lamented the over-criminalization of America that makes every typical American vulnerable to being caught up in “a criminal investigation and prosecution ... for something he did not even suspect was illegal.” And National Review approvingly quotes a civil liberties expert who has said the average American commits three felonies a day.
And, yet, and yet, and yet, warn my conservative instincts. It could be defended if all the state did was recognize our bad habits and tax them, as it does, for example, with cigarettes. The state profits from our vices rather than our virtues and, faced with ever higher costs, some sinners will even tire of behaving stupidly.
The state seldom stops there, however. As it grows dependent on its sin taxes, it must find ways to encourage the sin. In times of declining revenue, the State Lottery does not increase its advertising budget because it wants Hoosiers to wisely invest their money. The General Assembly does not relax the rules for casinos to lure more gamblers from Kentucky and Ohio. It does it to keep Hoosier gamblers from going to Kentucky and Ohio.
That makes the state our exploiter rather than our protector, no better than the drug pusher who gives away free samples to create more addicts. Is preying on our weaknesses what we should tolerate from government? Surely there are vices we don’t want government to profit from by encouraging — how would a government-sanctioned child prostitution operation grab you?
Before anybody points it out, yes, I can applaud the Supreme Court’s decision that opened the way for states to consider legalizing sports gambling. By striking down a federal law banning the betting in most states, declaring it none of Washington’s business, the court rightly affirmed the principles of federalism.