May
9, 2003, 10:10 a.m.
Do Unto Others
The vices of
Bill Bennett.
By Randy E.
Barnett
ardon
me if I don't feel sorry for Bill Bennett for the negative reaction to
his recent confessions to being a gambler. David
Frum began his NRO column on Monday, "Who knew that praising
good could generate such ill will? Who imagined that when it came to judge
a man it would matter so little who he really was and what he'd really
done?" Frum has it backwards. The antipathy for Bennett in many quarters
stems not from his "praising good" but in his role as "drug
czar" in which he repeatedly advocated imprisoning drug users to
save them from themselves.
Now comes Stanley
Kurtz arguing that it is perfectly all right for Bennett to take a different
stance on the social harm of gambling than he does on drugs. "When
he treats gambling and drug use differently, William Bennett is simply articulating
America's existing policy distinctions on these two issues. You have to
want to destroy William Bennett pretty badly not to realize that it's alright
for an American to take different moral views on gambling and drugs, and
not be run out of town for it. I'd like to see Michael Kinsley and William
Saletan address this point, but I'm not holding my breath."
I cannot speak for Kinsley or Saletan who are not, of course, libertarians,
but I can explain how many libertarians are likely to react to this latest
display of hypocrisy by Bennett. You see, Bill Bennett is more than a moralizer
— a role to which I, for one, do not object. We need moralizers and
if that role is left solely to he who is without sin, then no one gets to
say anything about anyone's bad behavior. That's the trap laid by the moralists
on the Left, as Frum correctly notes.
But Bennett is more than a moralist; he is a prohibitionist. And
he is more than a prohibition advocate, he was the drug-czar almighty. For
years he defended the current policy of ruining the lives of drug users
— regardless of whether their actions were harming others. Many of
us still recall his condescending reply to Milton Friedman's open letter
to him in the pages of the Wall Street Journal where he chided the
Nobel Prize winner to be serious. From editorial page to podium, Bennett
loudly and righteously defended the policy of wrecking havoc on his fellow
citizens who indulged in different vices than he did — whether or not
their vices happened to interfere with their abilities to perform their
jobs or be good parents. It did not matter whether or not they had "spent
the milk money." All that mattered was whether they were caught by
the cops. Then off to the clink with them.
Kurtz says that Bennett is entitled to run a different cost-benefit calculation
for gambling than for drugs. Then why has he now said he is setting a bad
example to others and quitting? Either he has just changed his cost-benefit
analysis this week, or he was a hypocrite last week. Kurtz and Bennett cannot
have it both ways. Frankly, I do not care much for charges of hypocrisy
which seem to be easy attempts to hoist one's opponents by their own petard
without taking a stand oneself. Bennett's problem is not so much hypocrisy,
as it is refusing to do unto others as he would do unto itself. His own
personal vicious behavior — and vicious he has now admitted it to be
— undercuts his claim to righteously persecute by law the vices
of others. And do not forget that gambling is quite illegal in many places.
Bennett's behavior also reveals something more insidious than hypocrisy,
though it is a very old tale. Those who argue most loudly that, were it
not for state coercion, people would go to hell in a hand basket have long
been suspected of speaking knowingly from introspection. Think Jimmy Swaggart.
Bennett provides an even better example. Bennett has had three consumptive
vices of which we know: cigarettes (which he had to give up to take the
drug-czar position), gambling (which he now has to give up to preserve his
viability on the lecture circuit as virtue authority) and, obviously, food.
In his latest admissions he stresses that he broke no laws, which is also
true of his consumption of nicotine and calories. Lucky him.
This only means that his vices do not carry the additional legal baggage
that he would willingly impose on others with different vices. So suppose,
instead of merely issuing a statement that he was through with gambling,
he had to hire a big-time lawyer (other than his brother), and go to court
in handcuffs like Robert Downey Jr. has had to do. Downey is a sad character,
but why does he deserve the orange jumpsuit and jail-time for his admittedly
self-destructive behavior and Bennett only our compassion and goodwill?
Perhaps Bennett (or Kurtz) would respond that, were Bennett's chosen vices
illegal, the laws would have saved him from himself. But this incident proves
only that, unless one prohibits all vices, which the virtue proponents like
Bennett deny they favor, poor weak souls like Bennett will find some other
legal pleasure to abuse. The only question is what happens to them when
they are caught. For the average citizen smoking marijuana, they get the
tender mercies of such places as the Circuit Court of Cook County where
I used to prosecute real criminals. In California and elsewhere, they get
both the Clinton and Bush justice departments prosecuting as felons sick
people acting legally under state law.
Naturally, Bennett opposes medical-cannabis initiatives. In a
2001 Wall Street Journal essay he dismissed them "as little
more than thinly veiled legalization efforts." So much for his compassion
for the suffering of others, not to mention his ability to make morally
relevant distinctions. Here is where Kurtz's defense of Bennett based on
positive law unravels completely. In what universe does opposition to medical
cannabis under sanction of state law and subject to state regulation create
even close to the social harms caused by legal gambling? But Bennett is
not interested in such nuances. He disregards the judgment of the electorate
of at least eight states who voted to allow this practice. He knows better
than the voters. Just ask him. He advocates punishing sick people and denying
them access to physician-recommended medical cannabis just so other people
do not get high.
Frankly, I just do not see the virtue in this position, much less the compassion
Kurtz and Frum show Bennett, who has only to withstand a bit of the verbal
abuse he dishes so well. All this is why some libertarians think this latest
admission of Bennett's vices significant and worthy of criticism, not whitewash.
Oh, Bennett gets to stay in town as long as he likes. He'll be back on the
lecture circuit soon enough. Let's hope, though, that he refrains from writing
a new book about his terrible experiences at the blackjack tables. How long
do you think it will take for him to join the new crusade (already in progress)
to prohibit gambling and to throw people in jail in the future for what
he did in his immediate past? Anyone taking bets?
— Randy Barnett
is the Austin B. Fletcher Professor at the Boston University School of Law
and a senior fellow of the Cato
Institute. He is the author of The
Structure of Liberty: Justice and the Rule of Law. His new book,
Restoring the Lost Constitution: The Presumption of Liberty, will
be published this fall by Princeton University Press.
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ardon
me if I don't feel sorry for Bill Bennett for the negative reaction to
his recent confessions to being a gambler. 
