Productive arguments

From Bill Otis on ‘George Will, missing the mark on overcriminalization’ by Paul Cassell.

An interesting discussion. Often, policy debates are across the political spectrum, left and right. There can be so many embedded prejudices and assumptions that it is quite difficult to address the logic and evidence of the argument. Much of the debate frequently devolves immediately into ad hominem attacks and tearing down strawmen arguments rather than an actual engagement with the substance of the argument.

I find this post interesting because it is essentially within one end of the spectrum, in this case, the right. George Will makes an argument about overcriminalization and I think he is broadly correct. All laws are backed, ultimately, by the threat of sanctioned coercion up to and including the use of force which causes death. Not every law is likely to result in such an outcome but it is a feasible outcome with some degree of possibility, whether low or high. The question has to be, are we willing to use force to back up this law? If we are not willing to use force, then we probably should not pass the law because it either will not be enforced, or it will be enforced selectively. Either outcome undermines the rule of law. If we are willing to see deadly force used to uphold the law, even if a low probability, then that has to be a potential cost that has to be acknowledged.

Another conservative, Bill Otis, however, has some material disagreements with George Will and presents them in a logical and compelling fashion. All the arguments are proceeding from evidence and logic with few strawmen or ad hominem attacks. Suddenly this is both an enlightening and productive argument.

Then the commenters leap in and point out that while Otis's comments are pertinent in terms of logic and the law, they ignore both context and economics. They then address a number of Otis's arguments with Will by taking an economic perspective on the issue.

For example, Will makes the argument that the death of Eric Garner is a tragedy because it is a logically necessary consequence of the premise that the State has the authority to enforce its laws, including laws relating to taxes. Eric Garner is selling cigarettes and depriving the State of its tax revenues and reducing the market for legitimate store owners selling cigarettes. The State enforces the law with deadly force and Eric Garner dies. Doesn't matter what legislatures intended. All laws are backed with deadly force used by the State.

Otis raises numerous logical questions. Among them:

First, it might strike some that a tax on cigarettes, and criminal penalties for not paying it, are illustrations of criminalization run wild, but … are they really? Is the sales tax on furniture, tires, lemonade or a thousand other items likewise the emblem of overreach? Why would that be? Why is the taxation of cigarettes categorically different?

State sales taxes have been with us for a very long time. Did they get to be the menace of Criminalization Run Amok just last week? Are they the menace of Criminalization Run Amok at all? Will does not directly assert, and he certainly does not demonstrate, any such thing, but his thesis depends on it.

I don’t like sales taxes better than anyone else, but if state governments are to be funded, they seem like as good an idea as any. Neither such taxes nor criminal penalties for evading them had previously been thought to be the hallmark of despotism; indeed, conservatives generally prefer sales taxes to income taxes, on the theory that it’s better to tax consumption than production.

These are good questions that have to be addressed.

Which the commenters then begin to do. They point out that the opposition is not to consumption taxes per se but the distorting effects of taxes (such as sin taxes for cigarettes) and the associated opportunities for rent seeking and regulatory capture which so often run in parallel with high taxes. They point out that in economic terms, the State is trying to enforce a monopoly on cigarettes sales that directly benefits the State through high tax revenues. Eric Garner's crime, in economic terms, can be recast as the crime of encroaching on the State's self-interest in maintaining tax revenues. We are once again back to Will's point of overcriminalization from a slightly different angle.

It goes back and forth between Will and Otis and the commenters, focusing on facts and logic and context. There is some snarkiness but the ad hominem attacks and strawman arguments are reduced. Now that is a productive conversation.