Ain't Nobody's Business If You Do
PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES
ARE NOT A GOOD IDEA
LAWS AGAINST CONSENSUAL ACTIVITIES CREATE A SOCIETY
OF FEAR, HATRED, BIGOTRY, OPPRESSION, AND CONFORMITY; A CULTURE OPPOSED
TO PERSONAL EXPRESSION, DIVERSITY, FREEDOM, CHOICE, AND GROWTH
Idiot, n. A member of a large
and powerful tribe
whose influence in human affairs
has always been
dominant and controlling.
HUMAN BEINGS TEND to fear change. For most people, dislike of the new,
the different, the out-of-the-ordinary seems to be instinctual. This makes
sense: prehistoric humans found that a new animal might try to eat them,
a strange vegetable might poison them, or a differently dressed human might
try to kill them. Survival lay in sameness, predictability, the status
This view led to demand for conformity within the group. It started
with children who—for their own survival—were taught to eat certain foods
and to avoid others, play with certain animals but stay away from others,
walk in certain areas but avoid others. As children grew, they learned
more cultural taboos: what to wear and what not to wear, what to say and
what not to say, what to do and what not to do.
A watering hole may have been off limits simply because an elder saw
a wild beast there generations before and declared it taboo. This taboo
continued even though the wild beast hadn't been there in decades. An important
source of water was lost to the entire tribe just because a wise elder
suggested one day, long ago, Stay away from that watering hole.
The soft-minded man
always fears change.
He feels security in the status quo,
and he has an almost morbid
fear of the new.
For him, the greatest pain
is the pain of a new idea.
|MARTIN LUTHER KING, JR.
Enter the nonconform-ists. There has always been a small percentage
of humans who found sameness, predictability, and the status quo dull.
They balked at conformity. They wanted newness, information, risk. What
most of the tribe called danger, they called adventure. What most found
fearful, they found exciting. They were the explorers, the experimenters,
These nonconformists had a mixed reputation in the tribe. Some discovered
new territories, techniques, and modes of behavior beneficial to the entire
tribe. Others put the tribe in danger by their stubborn refusal to cooperate.
The former became heroes; the latter became villains. Before the heroes
became heroes, however, they went through a phase of seeming to be villains:
they took part in—and later advocated—change, and (as the majority would
say) we all know instinctively that change is not a good thing.
The minority favoring change has led the majority, kicking and screaming,
into the future.
And this is as it should be. Society needs the majority of people to
maintain the status quo; consistency is necessary to grow things, build
things, and raise children. An adventurer might plow a field and plant
a seed, then become hopelessly restless a week later. So the adventurer
is off to a new field, planting a new seed. The conformist who stays by
the planted seed for a season has the benefit of the harvest.
Will and Ariel Durant, in their History of Civilization, compare history
to a fast-moving river, ever changing, bringing along the new, moment by
moment. Civilization, however, happens on the banks of the river where
the vast majority of humanity lives, watching the river go by, building
their houses, planting their crops, raising their children.
We are all full of weakness
let us mutually pardon
each other our follies
it is the first law of nature.
A healthy society needs a balance between the new and the old, between
change and the status quo, between trying something different and maintaining
tradition. If change happens too quickly, there's no time to see if the
previous change is working. If change doesn't happen quickly enough, a
society stagnates and begins persecuting the very adventurers who could
have led it to a new and better place.
A perfect example of too much change too soon was the aftermath of
the French Revolution. From 1793 until 1800, France was ruled by government
du jour. As Peter Weiss described it, Years of peace, years of war, each
one different than the year before. That was the trouble: before a new
form of government had a chance to work, it was toppled, its leaders beheaded,
and a whole new government put in its place. After a dozen or so attempts
at democracy, the French welcomed the dictator Napoleon with open arms.
Although a despot, he brought with him what France desperately needed:
law, order, and a sense of continuity.
How can we tell, as a society, which side of the balance point we are
on—whether we're permitting too much or persecuting too much, whether we've
gone too far in the direction of change or gone too far in the direction
An excellent indicator is a society's attitude toward consensual crimes.
Let's take a look at two proposals, both considered different based on
our current cultural norms. One is The best way to receive is to take—by
force if necessary; the other, The best way to receive is to give—even
if it means giving everything you own. Neither of these positions will
have the majority of our society flocking to them. And yet, in a healthy
society, the practice of one of these philosophies should be illegal and
the practice of the other should not.
|Now the 21st century approaches and with
it the inevitability of change. We must wonder if the American people will
find renewal and rejuvenation within themselves, will discover again their
capacity for innovation and adaptation. If not, alas, the nation's future
will be shaped by sightless forces of history over which Americans will
have no control.
Let's say that each philosophy has a particularly charismatic leader.
Two new groups find their way onto the American scene: the Takers and the
Givers. The adherents of each group believe what they believe with fanatical
devotion. Newsweek and Time do cover stories. 60 Minutes does a special
two-hour episode (120 Minutes).
The leader of the Takers says that Americans have gotten too soft,
that the basic natural principle of survival of the fittest has been eliminated.
Our gene pool is polluted. We will die as a society if we don't do something
soon. We must put survival of the fittest back into our daily lives. The
solution? If you want something, take it. If the people who own it can
successfully defend it, they get to keep it. If the people taking it successfully
take it, it's theirs—until they are defeated by another Taker. This would
take the fat off of humanity fast. We would become strong, lean, and powerful
The leader of the Givers maintains that energy is a flow, and the more
you give, the more will flow back to you. If you feel you don't have enough,
it's not because you need to take; it's because you need to give. Humanity
is in trouble because we have not accepted the natural principle of giving
practiced by the sun which gives us light, the trees which give us fruit,
and all plant life which gives us oxygen. We have taken too much; it's
time to give. And the more we want, the more we should give. If we want
it all, we should give all that we have away.
As an example, the leader of the Takers takes a car, takes a house
(If you can't defend your house, you don't deserve to live there), and
takes—against their will—two or three attractive women as his own. (If
their husbands want them, they can come and get them.)
Arnold Schwarzenegger was
paid $15 million for his role in
Terminator 2, and spoke 700 words.
That's $21,429 per word. Such classic
lines and their monetary value:
Hasta la vista, baby, $85,716;
I insist, $42,858; and
Stay here, I'll be back, $107,145.
The leader of the Givers, by way of example, gives away everything
he owns and, whenever he is given something, immediately gives that away,
too. Even when given food, he eats only a few bites and gives the rest
From the point of view of the government, who should be put in jail?
One? Both? Neither?
The actions of the Givers' leader are potentially only harming himself
and those who choose to follow his example. He may give everything away,
his philosophy may be flawed, and he may get little or nothing in return.
His followers who likewise give everything away are also potentially hurting
no one but themselves. If the philosophy fails, there will be sufficient
examples of failure, and the vast majority of society will not follow suit.
The Takers, however, can do a great deal of harm to nonconsenting others
before their philosophy is proven unworkable. Long before people learn
it's inconvenient and expensive to go to the grocery store in a tank (and
to make sure your tank is bigger than everyone else's tank), society has
a right to defend itself from a minority of people involved in an experiment
that hurts unwilling others.
Two radical points of view, and yet it's appropriate for the government
to move in and stop—by force—one, and to practice tolerance with the other.
We have the right to defend ourselves from theft, rape, and violence; we
do not have the right to defend ourselves—by force of criminal law—from
mental or emotional discomfort.
Further, from an enforcement point of view, it's easy to tell when
the Takers have crossed the line: when they take something without the
owner's permission. But how does one set laws against the Givers? Pass
a law saying that no one is allowed to give anything away? That you cannot
give away more than 25 percent of your net worth? That before you give
something away you must prove to an official of the state that giving it
away will not negatively affect your well-being? (These suggestions may
sound absurd, but take a look at the wording of some of the consensual-crime
When we got into office,
the thing that surprised me most
was to find that things
were just as bad
as we'd been saying they were.
|JOHN F. KENNEDY
Further still, who's going to complain? She gave me five dollars, officer!
Put her in jail! Without a victim, it's highly unlikely that most of the
crimes committed by Givers would ever be brought to justice. In order to
catch them, the police would have to go undercover, pretending to be people
in need, waiting for some gullible Giver to give them something. Then the
whole question of entrapment arises. Is a Giver guilty of a crime only
when the Giver gives unsolicited, or is the Giver also guilty when the
receiver has asked? And are those who receive from a known Giver guilty
as well? These are fine legal points—precisely the ones that come up every
day in apprehending consensual criminals.
Meanwhile, all those Takers out there are taking, and the police are
so busy entrapping the Givers that there is no time to arrest many Takers.
The police are so busy protecting the Givers from themselves that the genuine
victims of the Takers get taken.
When a country protects itself from change too enthusiastically, it
robs itself of the new information, ideas, and behaviors that might make
for a better country. When most people's natural fear of the new is supported
by law, the law justifies the fear, thus institutionalizing prejudice against
anything new and different. (It's against the law; it must be wrong; my
fear is right.) When religious leaders rummage about the Bible for scriptural
proof that the prejudice is justified (and you can prove anything by selectively
quoting the Bible), then the prejudice is enshrined. The law says it's
bad; God says it's bad; I feel it's bad; therefore, it's bad.
Let us forget such words,
and all they mean,
as Hatred, Bitterness and Rancor,
Greed, Intolerance, Bigotry.
Let us renew our faith
and pledge to Man,
his right to be Himself,
|EDNA ST. VINCENT MILLAY
An attitude such as this demands conformity. How dare you go against
what the government, God, and I know to be true? In our country, we've
been asked to walk an increasingly narrow line which shows us what we can
and cannot put in our bodies, whom we can and cannot love, what kind of
sex we can and cannot have, how we can and cannot heal ourselves, the recreational
activities we can and cannot take part in, and how we can and cannot worship.
The message clearly is Morality—our way, or else!
We create a culture in which people are incapable of free choice because
the culture doesn't allow an individual to gather enough information to
make a choice. Experiments in and discovery of viable lifestyle alternatives
are replaced by a list of should's, must's, have-to's, you'd-better's,
and don't-you-dare's. Some people have the feeling their choices in life
are as limited as that of a child being asked, Do you want to go to bed
now, or five minutes from now? Sure, there's a choice, but it's a narrow
We are not permitted to grow up. America has become a Never-Never Land
in which the citizens are promising to be good little boys and girls in
exchange for the government, like good parents, protecting them from every
evil and fulfilling every need. And the government-authorized religious
beliefs (authorized by the laws the government chooses to enact or refuses
to enact) tell us what to do while we're here and how to insure a happy
|The voice of protest, of warning, of appeal
is never more needed than when the clamor of fife and drum, echoed by the
press and too often by the pulpit, is bidding all men fall in and keep
step and obey in silence the tyrannous word of command. Then, more than
ever, it is the duty of the good citizen not to be silent.
|CHARLES ELIOT NORTON
The repression created by suppressing consensual activities has a trickle-down
effect: If these activities can get us put in jail, what about this much
longer list of behaviors that are also disapproved of by the people who
hold the jail keys?
We have become a nation of individuals afraid to explore, afraid to
try new things, afraid to be different. Consequently, we never fully discover—much
less fulfill—our individual dreams, our heart's desires. Our individual
strengths, talents, and abilities are never developed; we sacrifice the
better part of ourselves in order to be the way we should be. We and the
country as a whole suffer.
We deprive ourselves of the best political leaders because we maintain
the pretense that our leaders should be perfect—perfect as defined by the
keepers of conformity. Thank heavens this narrow-mindedness is loosening
up. Kennedy was a Catholic; Carter had lust in his heart; Reagan was divorced;
and Clinton smoked pot. Yes, the times, they are a-changing. If it had
been Kennedy who admitted to smoking pot—even being in the same room as
pot—in 1960, Nixon would have been the one to have had the affair with
Alas, the times (that is, we) are not changing quickly enough. The
fishbowl world in which everything a candidate ever did is fully exposed
has run ahead of our acceptance for things people do that do not physically
harm the person or property of another. The press's ability to tell us
what's so has outstripped the American public's ability to say, So what?
James Bryce wrote his classic study
of the United States,
The American Commonwealth,
in the 1880s.
One of the chapters is titled,
The Best Men Do Not
Go Into Politics.
Gary Hart had a tryst on a boat called Monkey Business, apparently
with his wife's permission. So what? Jimmy Swaggart enjoys entertaining
prostitutes (or vice versa) in cheap motel rooms. So what? Jerry Brown
practices eastern religions and is rumored to practice bisexuality as well.
So what? Hugh Grant hires a hooker on the eve of the opening of his first
Walt Disney movie. That's not a scandal. That's funny.
We have, then, people who are afraid to take leadership positions because
some incidents from their pasts are sure to be judged by the moralists.
Or we get leaders who are so dull—or so good at covering their tracks—that
no taint of nonconformity is possible; example: George Bush. We may be
getting the leaders we deserve, but not the best available.
Ironically, our insistence on conformity hurts the very institutions
it is designed to protect. When we attempt to force everyone into a certain
set of behaviors, beliefs, or activities, those very behaviors, beliefs,
and activities become eroded and diluted by the people who don't truly
want to behave, believe, or act in that way—they are merely doing so out
of fear that doing otherwise would cost them.
If people do not freely choose to take part in something based on an
inner need, desire, or, at the very least, curiosity, the power of the
institution is diluted, its purpose diffused, and its future in question.
For the good of the institutions we want to preserve, we must stop coercing
people into them by force of law.
rarely survives experience.
The Washington Post
A country that punishes people simply for being different, for exploring
the rich diversity of human experience, or for experimenting with alternate
lifestyles is a country condemned to pettiness, vindictiveness, crushing
conformity, oppression, decay, and ultimately death. A nation that tolerates
or, preferably, celebrates diversity, exploration, and experimentation—is
strong, dynamic, creative, alive; its citizenry mature, responsible, and
able to make rational choices.
Copyright © 1996 Peter
McWilliams & Prelude Press
Last Revision: December 2, 1996