What if you could outlaw immoral behavior? Not just condemn it as evil, but actually make it illegal?
The United States embarked on a fascinating experiment to do just this when it passed Prohibition—a ban on alcohol—as a Constitutional amendment in 1920. (Not that drinking alcohol itself is immoral—Jesus drank his share of wine—but inebriation was the target, and a total ban seemed like a way to stop it.) Slate recently ran a review of what sounds like an engrossing new book on the Prohibition era (by the excellent essayist Daniel Okrent, who says in an interview that a Ken Burns documentary series on Prohibition is on the way). The review frames the story as a cautionary tale:
When you ban a popular drug that millions of people want, it doesn't disappear. Instead, it is transferred from the legal economy into the hands of armed criminal gangs. Across America, gangsters rejoiced that they had just been handed one of the biggest markets in the country, and unleashed an armada of freighters, steamers, and even submarines to bring booze back. Nobody who wanted a drink went without.
This, says Slate (apparently the book itself is more subtle), is the story of our current "war on drugs" and its inevitable futility.
I don't doubt the drug war is a losing effort, and I do think that in many cases treatment would do more good for drug users and for society than prison does. But I do worry about the pragmatic argument being made: if you can't effectively enforce a law, the thing the law bans should be legal. You hear this some time about policing a more benign crime: speeding. If everyone's driving 10 miles over the speed limit anyway, what's the point of having a supposed limit—and why not raise it by 5 or 10 to make more people law-abiding? (Though wouldn't everyone just drive even faster then?) On a more serious subject, you also encounter this reasoning in the abortion debate: outlawing abortion wouldn't get rid of abortion, it would just transfer it to back alleys where health and safety would be worse.
That's true, but it doesn't help us talk about the moral and ethical dimensions of abortion. And while we shouldn't ignore the practicalities of our laws, we can't ignore ethics and reduce law-making to mere pragmatism.
I'm not calling for a return to Prohibition, though sometimes drunk-driving fatalities make me wonder if it's not as quaint an idea as we might think—and whether alcohol is really that much less destructive to society than drugs and marijuana. But I can't simply scoff at the futility of Prohibition and vow to never try anything like that again.