Making Men Immoral

Why governments make moral laws.

Some notable recent writing: me in the City Journal print magazine on James Q. Wilson’s theory of community; me in the Atlantic on why rescheduling marijuana was a bad idea; me in National Affairs on the prohibition of vice.

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In a column from late last year, the New York Times’s Ezra Klein probed the contradictions between his commitment to philosophical liberalism and his growing unease with the pervasiveness and perniciousness of social media and other addictive products. In a paragraph that should ring true to regular readers of TCF, Klein writes:

[T]here are many kinds of products in which more innovation can lead to more destruction. Do we need vapes that are more compulsively usable? Is it good that online gambling firms are spending so much on slick marketing to find new users? Do we really want A.I. companies competing to create the most addictive pornbot? The question, I think, is under what conditions algorithmic media becomes such a product.

What Klein is talking about here is something I write about a lot—the rise of the modern, technologically enabled vice economy.¹ Regular readers have heard this before, but as I put it in a recent National Affairs essay:

In 2023, a record 62 million Americans smoked pot; 17 million now use it daily or near daily. One in 12 young adults used a hallucinogen; one in 18 misused prescription stimulants such as Adderall. Another 2.6 million Americans over 12 took meth. Overdoses still claim the lives of 70,000 Americans annually; the majority died using synthetic opioids like fentanyl. Half of American men have a sports-betting account, up from almost zero seven years ago. "iGaming" — gambling via casino apps on your phone — is now legal in seven states. By some estimates, pornography now generates more revenue than Hollywood, and OnlyFans creators collectively make more than players in the National Basketball Association.

Contemporary American life is one big struggle with what the Greeks called akrasia, the phenomenon of doing something even though we know it would be better if we didn’t. And akrasia has long been a thorn in the side of liberalism—a fact with which Klein admirably struggles:

Modern liberalism is built around the idea that the government should make it possible for people to pursue their happiness as they see fit, so long as they are not harming others. It has much to say about individual rights and little to say about the common — or even the individual — good.

Liberalism carries, at its core, a trust that social experimentation will lead to better forms of social organization. That has freed it — and freed us — from the shackles of repressive traditions. But it can be confounded when adults are freely making decisions that don’t harm others but perhaps harm themselves. And it has created a loophole that algorithmic media companies have driven a truck through: We’re just giving people what they want, they say. Who are you to judge what they want?

Many kinds of liberalism are, to use the political philosophy term, anti-perfectionist. “Perfectionism,” for our purposes, is the idea that 1) there are ways of living that are objectively better and worse, and 2) the state should at least sometimes act so as to induce people to live well or not live badly, in line with that objective standard. To be a perfectionist does not mean thinking that the state should always and everywhere intervene in our choices—a panoply of reasons might justify non-intervention. But the perfectionist rejects the idea that the state should remain neutral about what the good life is, insisting instead that the good life should inform state action.

Many (although not all) liberals are, or at least profess to be,² anti-perfectionists. Some liberals dissent from 1, arguing that we cannot make normative judgements about whether some ways of living are better than others. This is a view with more currency on college campuses and in far-left settings than in the mainstream left (although some still seems willing to defend it). Klein, specifically, seems to believe in at least some version of 1: people who are addicted to their phones are living worse lives, and it is meaningful to say so. And more generally, he seems to agree that there is such a thing as living well beyond “do what thou wilt.”

But where he stops short is 2:

[S]ensing that the present digital environment harms many of its users is a long way from knowing what would be better or what the government should do about it. As compelled as I am by the idea of bringing ideas of human flourishing back to the center of our politics, I turn queasy when I read the history of movements that have tried to do so. … The Progressive movement scored many victories, but there’s much in its history — from its embrace of phrenology and eugenics to forcing Native American children into boarding schools — that is repulsive. The past offers little succor to those who claim to know how to perfect, or even improve, the characters of others.

He does go on to carve out two areas where he thinks the state can act: children and business:³

But it feels to me like the outlines of an agenda — or at least ideas worth debating and trying — are coming more clearly into focus. Much of it revolves around two ideas: First, children should be more insulated from the ubiquity of digital temptations. Second, companies that want to shape so much human attention need to take on more responsibility, and liability, for what might go wrong.

I am happy to agree with the two poles of Klein’s policy program. If he and I can work together to protect children from vice and restrain business from commerce therein, that would be a great success.

But I do not think we can successfully form such a coalition—or, more precisely, can have a coherently anti-vice politics—without “bringing ideas of human flourishing back to the center of our politics.” It’s not enough to say that businesses shouldn’t sell something or children shouldn’t be exposed to it. For certain of the vices preying on Americans today, we need the state to say that they are hostile to human life,⁴ and proscribable as such.

And—I want to argue—our commitment to the idea that the state should remain “neutral” in the face of vice is part of how we ended up in the condition that Klein rightly recognizes as a problem. A state which does not understand its ambit as including some degree of making its citizens moral will inevitably make its citizens immoral. And the contemporary American state’s capitulation to anti-perfectionism—of either type 1 or type 2—is part of what has bred our current condition.

Moral Ecology

Everyone forgets how recent the new vice economy is. Turn the clock back to January 2016, and recreational marijuana is illegal in all but four states; sports gambling is illegal essentially everywhere; there’s no betting on your phone; OnlyFans is still months from launch; the fentanyl crisis has barely taken off; etc.

Much of this change is an unintended consequence, I have argued here and elsewhere, of technological progress. As technology has gotten better generally, we became able to produce higher quality vices, both legal and illegal, resulting in a more potent product and a more reinforcing experience.

Both this, and the sale of vice generally, is the result of the natural logic of the market. People want addictive goods, the legalizers correctly observe. If buyers exist, there will be sellers to meet them. If the sale is prohibited, then those sellers will be significantly suppressed—they will still do business, but in a more dysfunctional fashion. The effect of that prohibition is relatively large—as I never tire of reminding people, prohibition is why you can’t buy fentanyl at Wal-Mart. And the last decade’s worth of experience reinforces the fact that state control of vice has a significant impact on the intensity with which it is sold and consumed.

I lay all this out because the case against moral regulation is often predicated on an idea of state “neutrality” as to individual choice. Legalization is not endorsement, advocates of the former argue; it’s the state abstaining from taking a position, compared to prohibition’s affirmative “no.”

What has happened in the case of liberalization, though, is that removing formal legal restraint is in effect an affirmation of vice. Where the state doesn’t intervene, individuals can be and often are induced to consume addictive, harmful products. Either the state counterbalances this natural tendency, or it doesn’t. Whatever isn’t prohibited is permitted; whatever is permitted will be made available.

The market is not the only sphere in which to see this dynamic. There is a whole social environment in which our moral decisions are made. And state inaction shapes that environment as much as does state action; rescinding a prohibition has a social effect as much as implementing one. Again, there is no “neutrality”: state actions either make that environment conducive to a flourishing life, or to a vicious one.

Robbie George, in his 1993 book Making Men Moral, evokes the concept of ecology to capture the environment in which our moral decisions are made. He writes:

In neither case will the moral environment eliminate the possibility of moral goodness and badness, for people can be good in bad moral environments and bad in good moral environments. The point remains, however, that a good moral ecology benefits people by encouraging and supporting their efforts to be good; a bad moral ecology harms people by offering them opportunities and inducements to do things that are wicked. A physical environment marred by pollution jeopardizes people’s physical health; a social environment abounding in vice threatens their moral well-being and integrity.⁵

It is easy to see the recent spate of legalizations as a withdrawal of the state from any claim to shaping that ecology. Each of these legalizations has their own justification, of course—sports gambling was legalized because of the anti-commandeering provisions of the 10th Amendment, which have nothing to say about marijuana. But the common factor behind each of them is a current of anti-perfectionism. Yet the result has been a profound harm to the moral ecology—“neutrality” has yielded an effective affirmation.

The Amoral State is an Immoral State

After decades of culture war over moral issues, moreover, contemporary politics has been essentially evacuated of explicit moralism. The Democrats punted on the issue some time around the Clinton impeachment, and the Republicans followed in 2016 at the latest.

One of the effects of this phenomenon is that insofar as your politics is amoral, it becomes licit to compete politically on providing goods that were previously deemed out of bounds. I wrote about this phenomenon shortly after the 2024 election for the New York Times, observing that Harris and Trump had competed to capture valuable young male voters by catering to their desire for vice goods. Thus, Trump moved left on pot, while Harris tried to one up him by identifying marijuana industry jobs as part of her “opportunity agenda” for black men.

In a recent piece, Hill columnist Matt Lewis extended my observations into Trump’s second term, the agenda of which “includes a broader tolerance for industries that profit from addiction, distraction, and dopamine hits.” We see this in the administration’s looking the other way on the backdoor national legalization of gambling through prediction markets, and in Trump’s embrace of rescheduling. Not, of course, that the Democrats are likely to be any better; I have no doubt that the next Democratic president will go even further on the vice industries that they don’t dislike for political reasons.

I have occasionally jokingly referred to the phenomenon—politicians using vice to court votes—as the “Deadbeat Median Voter Hypothesis.” The basic insight is that people like vice because it’s fun and makes them feel good. Politicians always want an issue that unifies people, and which cuts across partisan lines. Promising people more vice does both. The thing that restrains us is perfectionism: the idea that vice is harmful to us, and that policy should be trying to steward our moral ecology. But if you drop that belief, then you don’t have a political problem.

Except of course you do have a political problem—it’s called demagogy, and everyone allegedly thinks it’s bad. Which is my point: when a democratic state attempts to be categorically neutral as to vice (i.e. anti-perfectionist), democratic politics—the politics of self-rule—decays, turning from rational self-governance to appeal to our base instincts.

I am not saying, of course, that our politics became corrupted merely in the past decade, or that our politics are corrupted only because of vice. But I am pointing to a single corrupting process in our politics, and arguing that this corruption has worked its way out from our leaders’ commitment not to be immoral but to be amoral.

The point generalizes. Vice is toxic to our moral ecology; in the absence of cultural and legal suppression, it flourishes like a weed. Simply saying that it is not the state’s business still tips the scales against people’s interest in living well, or at least in not living poorly in one of a series of well-recognized ways.

This is an argument against the type 2 anti-perfectionist: government’s choice not to regulate vice is not a “neutral” act. It is an affirmatively pro-vice decision. If you recognize that vice is a problem—if you accept proposition 1—then at least in the case of affirmatively deforming substances and practices (i.e. vices), state neutrality is not actually neutral at all, but rather facilitative of evil.

And this is true not merely at the level of policy, but at the level of posture. It matters that people like Klein be willing to make the argument that the state should, at least sometimes, be in the business of making moral judgements. Because if it isn’t, then for reasons of political economy as well as politics, it will be in the business of facilitating vice.

Can We Trust Government to Regulate Vice?

Some anti-perfectionists are willing to concede this point, but still oppose morals laws because “neutrality” is the lesser of two evils. Yes, they might say, the government not controlling vice will facilitate evil. But the evils done by the government acting to control vice are greater than those done by it doing nothing.

This is, more or less, what Klein does when he invokes the worst historical examples of morals regulation as a reason not to embrace the second premise of perfectionism. And he’s right: sometimes the government’s judgement about what is worse and better results in great evils. Grown women end up sterilized because they are judged “imbeciles,” for example. The argument in Klein’s case appears to be that the harms done by these errors are significant enough that the state should not judge at all, at least where individuals are concerned; we should not be hubristic enough to pass laws encouraging individual people to live well or not live poorly.

Of course, there are risks to not passing moral judgements. For much of our history, many Americans thought that it was good for one race to be enslaved by another. That was incorrect, and obviously produced great evil. The eventual solution was to impose a different moral judgement about what is good for people—namely, freedom from bondage—by armed force. People disagreed about this, and some wanted to resolve the dispute by dividing the union between slave and free, under the principle of “popular sovereignty.” Yet I doubt very much Klein would take Douglass’s side in that debate.

The standard retort here, of course, is that there is a salient difference between regulating actions which do harm to others (such as slavery) and those which merely do harm to the individual who “voluntarily” chooses the harm.⁶ By cleaving off force and consent from the rest of judgement about what is good for people, the anti-perfectionist liberal preserves the ability to say that people should be free to do what they want, so long as it doesn’t harm another person.

This returns to the point about the lesser of two evils. Yes, the anti-perfectionist might say, government could make people’s lives better. But the state is the monopoly on violence; violence is what it does; therefore any utterance by the state is an implied threat of acting violently. The only really morally justifiable or proportionate reason to use violence is to stop violence; therefore, we should only deploy violence when absolutely necessary.

At this point we have left behind somewhat Klein’s own stated position (which is that the government can interfere with businesses and children, but not adults). But I think the core is the same, which is a sense that the state cannot be trusted with enacting many kinds of moral laws.

I am in part sympathetic. There are obviously better and worse ways to enforce prohibitions, and I generally oppose kicking down people’s doors to ensure they are living well. But I think that descriptively, this is often not what moral lawmaking looks like. And this is not because of some contingent factor, but because the state is actually much less defined by the exercise of strength than the foregoing theory seems to presume. So while I am happy to agree that we should weigh the harms of moral lawmaking against the harms of vice, I want to suggest that in many cases, the balance is not so clear as the foregoing argument implies.

What Government Does

There is, after all, a great deal beyond stopping violence that we back up with the power of the state. The number of federal crimes (nevermind state) is allegedly uncountable; we all commit “three felonies a day,” in Harvey Silverglate’s memorable phrase. This fact, when trotted out, is usually meant to horrify you—you and your fellow Americans go through life constantly at risk of brutalization by the state, a reality that is always hammered home with the most gruesome of anecdotes.⁷

It is jarring to note that these fears mostly do not come to pass. Most crimes are not identified by the state, most identified crimes do not result in punishment, and the overwhelming majority that do are for the kind of crime that everyone agrees should be illegal. The parts of the state that make moral pronouncements are largely disconnected from the parts of the state that use coercive force.

What’s the evidence of this? Among state prisoners—themselves about 7 out of every 8 prisoners—malum in se crimes account for the overwhelming share of offenses. Roughly two in three state prisoners are in on violent offenses, for example. Just 5 percent are in on “other” public order offenses, a broad category covering “court offenses; commercialized vice, morals, and decency offenses; liquor law violations; probation and parole violations; and other public order offenses.” The pattern is much the same in federal custody. In other words, most people who are actually punished for crimes have committed a major offense, something most people agree the state should act against. Almost no one committed the kind of offenses that take up a great deal of Silverglate et al.’s attention.

That is assuming, furthermore, that they are caught in the first place. If you commit a murder in America, you have about a coin-flip’s chance of being apprehended. The outcomes get worse from there: robbery, rape, and arson report clearance rates of about one in four. Burglary is a one-in-seven proposition; steal a car, and you’ll get away with it more than nine times out of ten. It’s hard to measure, but the figures are almost certainly lower (based on arrest counts) for morals crimes. And that’s only counting clearances of the crimes that are actually reported to police, which are fewer than half of violent offenses and less than a third of property crimes (again, both figures likely higher than the clearance rate for vice offenses).

If, then, moral laws are primarily threats—commands with an associated risk of force if the command is not adhered to—then they are very, very bad ones. They are in most cases threats of such minimal significance that they do not deserve to be labeled threats. If I tell my five-year-old that if he does something bad, he will go to his room less than 1 percent of the time, he will proceed with abandon. Yes, I issued a threat, but it’s not of the heft to label it as such.

So we have a conundrum: in theory, the government uses its coercive strength to threaten people into doing many, many things other than not be violent. Yet in practice, the government actually carries out threats against a relatively small percentage of lawbreakers—never mind of the general public. If state utterances are threats, then the vast majority of them are empty ones. What do we make of this?

Many laws, of course, are meant to shape the behavior of the law-abiding. The real problem with over-criminalization—and it is a real problem, to be sure—is that it imposes onerous burdens on the great majority of citizens and businesses who dutifully follow the law. This is both intrinsically unfair and also deleterious to our national wealth—millions of hours spent complying with stupid laws have a real cost in addition to being a waste per se. (My points here about what law does generally should not be read as a defense of any one law in particular!)

But most of our many laws do shape behavior, for better or worse. And at least in principle, those laws exist because there is some reason we want to shape behavior in that way. Many of these reasons are allegedly amoral—public-health rules are ostensibly not moral laws, although why we say that I don’t understand. But even these “amoral” laws are about shaping behavior by some mechanic other than threat.

What I want to suggest is that when the state “speaks,” it is overwhelmingly not making a threat. When the state speaks, it is overwhelmingly issuing a moral judgement—a normative claim backed by an appeal to reason (however questionable), rather than an appeal to force. As a corollary, the potential harms of most laws against vice are not greater than the vices themselves, because the potential harms of most laws are factually quite low. Yes, a law can be enforced with undue violence. But in the vast majority of cases, they aren’t.

This is not merely an abstract claim about how the state ideally acts; it is a claim about how most states, throughout most of human history, have acted. This is because throughout most of human history, states were relatively weak. Limited technological reach and relatively low ratios of state to non-state power meant that while kings made many laws, their ability to enforce them were significantly limited by technological reality. Hammurabi’s Code simply could not be enforced in the way that modern laws are.

This is why policing as a practice—as distinct from the ancient night watchmen—only dates to the 19th century. Even then, the policeman was not responsible for enforcing the diversity of law so much as “keeping the peace”—for making sure that people were generally orderly in public. The government’s pronouncements on what ought and ought not to be done were largely orthogonal to what people mostly were jailed for.

It is not a coincidence that the earliest pangs of liberalism coincided with the rise of the centralized state and the development of modern bureaucracy—both of which are tools by which government utterances can be turned into force much more efficiently than was previously available. And liberalism does a great deal to help protect people against the abuses that that power can bring about.

But even today, the basic nature of law persists. Yes, the potential for abuse can be a good reason to prefer against a moral law. But it is not a dispositive reason, because law is in essence a moral utterance. And the potential for abuse is often not greater than the harms done by failing to make that utterance.

I am (as mentioned above) generally sympathetic to Klein’s program of affirmative policy addressing kids and businesses, rather than (for example) mass arresting people for using vicious goods. This is in part because I think use of vice is bad for the user, but does not make him evil, so he does not deserve punishment; and in part because I think it is quite easy for the costs of such extreme interventions to outweigh the benefits. Nor am I saying that all bad conduct should be prohibited; I am not advocating for banning lying, for example. I am talking specifically about vice as such.

But I am here arguing simply that in addition to Klein’s two pillars, the state should in the case of vice make the explicit statement that vice is bad, and it should often do so through the act of prohibition. These prohibitions are, historically, often minimally enforced—recall that basically no one was arrested for sports gambling even when it was illegal. Even alcohol prohibition was surprisingly under-enforced.

But the fact of the state drawing a moral line—of saying that such-and-such product is affirmatively destructive for its citizens, and should not be tolerated in public life—is fundamental to the maintenance of moral ecology. And we should not categorically reject that important function of the state for fear of abuse, because the risk of abuse is actually often not greater than the risk of doing nothing.

(Il)liberalism?

Some who have made it this far in this essay are going to accuse me of being an “illiberal”—a term much in vogue among both those who claim it and those who use it for abuse. To be fair, I have been criticizing core tenets of liberalism. But I am not interested in turning America into (an imagined version of) Hungary, nor in using the state to legislate submission to the church to which I do not belong.

Rather, I tend to think of myself as recognizing the need for somewhat “illiberal” means to liberal ends. That is to say, I am happy to endorse many of the virtues beloved of liberalism: tolerance, industriousness, a learned skepticism, etc. And I think the procedural and substantive liberties that are liberalism’s progeny are generally conducive to human flourishing—certainly more so than is tyranny.

But while I regard these as good, I do not take it for granted that they will obtain for humans or human societies. I do not believe that “social experimentation will lead to better forms of social organization”; people left to their own devices will just as often give in to their demons. As a result, the virtues of a free people must be formed by institutions, and the loss of those habits must be guarded against. In this sense, because I prefer the American tradition of liberalism (at least as originally conceived), I think that “ideas of human flourishing” have to be at “the center of our politics.”

If, moreover, you take seriously the reality of vice—if you reject type-1 anti-perfectionism—then I am not sure you can avoid reaching my position. If you believe that social media and pornography and weed and the addiction economy are degrading; and if you think that it is good to live free; and if you recognize that whether or not we live free is in part a result of our social and political context; then it is very hard to stop at the last possible moment and say “no no, the state should not tell people how to live.” Either the state sees virtue as part of its ambit, or we elect leaders who cater to our vices. There is no third option.

There are a lot of things I am not saying.⁸ I am not saying that the state should take an interest in every aspect of its citizens’ lives; that there is no room for privacy, or for moral agency. There is a great deal of room for both. And there are lots of non-moral reasons why the state should not make moral statements in any given domain. Because I believe in the American tradition of toleration, for example, I think the state should not prefer a religion; I think society is more peaceful and more orderly when it does not.

The point I am trying to make here is simply that the state has to make judgements on the issues that I care about—on the economy of vice—and it can’t escape doing so. And if you are the sort of person who takes seriously the consequences of the new vice economy, then you have to be willing to commit yourself to the state making at least some moral laws. Those moral laws do not need to be enacted with brutality—usually they aren’t—nor without due regard for all of the other things we hold dear as a liberal society. But if we think that vice is a problem, then it has to be okay for the state to say to it, loudly and clearly, “no.”

1. I probably wouldn’t put all of social media in this bucket, but there are clearly specific elements of social-media apps that are designed to work through similar mechanisms.

2. I am broadly skeptical that anyone is really an anti-perfectionist when you drill down. Even ostensible amoral justifications for law ultimately end up grounded in accounts of the good, etc. The anti-perfectionist argument is usually deployed in a selective fashion, which is self-undermining.

3. Sorry about all the block quoting. I’m trying to make sure I represent Klein’s position accurately.

4. (in the sense of bios, not zoe.)

5. Robert P. George, Making Men Moral (Oxford 1993), 45.

6. Of course, it’s not obvious that the choice of the harm is always voluntary in the case of addiction; I discuss more in that NA piece and also here.

7. Next time you read an article about this sort of thing, perhaps from a libertarian magazine, note that they almost always depend on anecdotes. This is just sampling on the dependent variable, and it’s an intellectually lazy argument. But I digress.

8. In general, if your response to this essay begins with, “are you saying…” the answer is “no.”