A certain kind of conservative

There is—and if there isn't, we can imagine her—a certain kind of conservative who both likes to have laws prohibiting various kinds of behavior that she takes to be immoral and in the name of freedom believes in a small government and is opposed to much government regulation in business (e.g., minimum wage laws) and other areas of life. The position seems inconsistent or at least ad hoc: she opposes certain kinds of regulation but not others. (It is sometimes said that people like want to have the freedom to do the things they like, but not to give others the freedom to do the things they like, but that is an unkind jibe, for instance because such a person might well want, for the good of her own soul, that the state prohibit immoral behaviors that she herself is tempted towards.)

I will argue that, whatever the substantive merits of positions like that, the position can be quite consistent, and indeed the restriction of immoral activity is quite consistent with setting a high value on civil freedom.

For it may well be that the activities that our conservative wishes to prohibit are ones that she takes to be absolutely wrong in all cases. Now it is possible to value civil freedom, without valuing the civil freedom to do what is wrong. Rather, one might value the civil freedom to choose between multiple morally permissible options. One might hold that no civil freedom worth having is lost to one through a prohibition on what would anyway be wrong to do.

However, the regulations that this conservative opposes on the grounds of the value of liberty are ones that prohibit, or at least penalize, activities some instances of which would be morally permissible but for the law. Consider, for instance, a minimum wage law. While there is a moral duty to pay a just wage, it is false that absent such a law it is always wrong to pay less than $5.85 per hour to an American worker in our day. It is not wrong, for instance, to pay $4 per hour to a kid who has no need for the money, who wants to work to get some experience, and whose productivity is significantly below that of an older worker. It is not wrong to pay workers $4 per hour if the owner is only making $4 per hour herself and the only available alternative for the business is to go broke and leave the workers destitute. The latter case is pretty rare but physically possible, but the former is less rare. In any case, it is clear that the minimum wage law prohibits some activities that are reasonably taken by our conservative not to be independently immoral, and indeed I suspect that even the proponents of such a law (I have no principled problem with minimum wage laws) are going to agree.

Our conservative takes the regulations she opposes to make illegal, or at least penalize, some actions that otherwise would have been morally unexceptionable. Moreover the proponents of the legislation are going to agree about this fact. They will, however, insist either that in most cases the activities prohibited or penalized would be wrong, or that some of the evils prohibited or prevented by the legislation are so great that it is worth prohibiting some otherwise permissible activities to prohibit these evils, or that great social goods are promoted by the legislation. The conservative lover of civil freedom will not be impressed, but may insist that we should leave unprohibited ten wrong actions rather than prohibit one permissible action just as we should leave unpunished ten guilty people rather than punish one innocent one.

Observe, too, the following. Legislation that prohibits something that is already immoral (e.g., fornication or unjustified breach of contract) does not decrease the number of actions that are morally open to one. But legislation that prohibits some actions that are not already immoral does decrease the number of actions that are morally open to one—for while the action wasn't immoral before the legislation was put in place, it becomes immoral afterwards to do it, since we are morally bound to obey the state (within certain limits). So it is quite consistent to believe in civil freedom, and to attack all kinds of otherwise reasonable laws on the grounds that they limit civil freedom, while yet wanting to prohibit fornication, unjustified breach of contract, suicide, medically unnecessary amputations, etc., as long as one believes the latter actions to be always wrong.

I am not saying that the position I described is above criticism. I think in any well-run state, we will need a lot of legislation that prohibits antecedently morally permissible activities (such as driving on the left side of the road). But at least it should be clear that one can consistently call for legal prohibitions on some activities one takes to be immoral while setting a very high value (perhaps too high a value) on civil freedom.