For a New Liberty: The Libertarian Manifesto

In recent years, liberals have fortunately been coming to the conclusion that “any act between two (or more) consenting adults” should be legal. It is unfortunate that the liberals have not yet widened this criterion from sex to trade and exchange, for if they ever would, they would be close to becoming full-scale libertarians. For the libertarian is precisely interested in legalizing all interrelations whatever between “consenting adults.” Liberals have also begun to call for the abolition of “victimless crimes,” which would be splendid if “victims” were defined with greater precision as victims of aggressive violence.

Since sex is a uniquely private aspect of life, it is particularly intolerable that governments should presume to regulate and legislate sexual behavior, yet of course this has been one of the State’s favorite pastimes. Violent acts such as rape, of course, are to be classed as crimes in the same way as any other act of violence against persons.

Oddly enough, while voluntary sexual activities have often been rendered [p. 106] illegal and prosecuted by the State, accused rapists have been treated far more gently by the authorities than accused perpetrators of other forms of bodily assault. In many instances, in fact, the rape victim has been virtually treated as the guilty party by the law enforcement agencies — an attitude which is almost never taken toward victims of other crimes. Clearly, an impermissible sexual double standard has been at work. As the National Board of the American Civil Liberties Union declared in March 1977:

Sexual assault victims should be treated no differently from victims of other crimes. Sexual assault victims are often treated with skepticism and abuse at the hands of law enforcement and health services personnel. This treatment ranges from official disbelief and insensitivity to cruel and harsh probes of the victim’s lifestyle and motivation. Such abrogation of responsibility by institutions meant to assist and protect victims of crime can only compound the trauma of the victim’s original experience.

The double standard imposed by government can be remedied by removing rape as a special category of legal and judicial treatment, and of subsuming it under the general law of bodily assault. Whatever standards are used for judges’ instructions to the jury, or for the admissibility of evidence, should be applied similarly in all these cases.

If labor and persons in general are to be free, then so should there be freedom for prostitution. Prostitution is a voluntary sale of a labor service, and the government has no right to prohibit or restrict such sales. It should be noted that many of the grimmer aspects of the street-walking trade have been brought about by the outlawing of brothels. As long-lasting houses of prostitution operated by madams anxious to cultivate goodwill among customers over a long time span, brothels used to compete to provide high-quality service and build up their “brand name.” The outlawing of brothels has forced prostitution into a “black-market,” fly-by-night existence, with all the dangers and general decline in quality this always entails. Recently, in New York City, there has been a tendency for the police to crack down on prostitution with the excuse that the trade is no longer “victimless,” since many prostitutes commit crimes against their customers. To outlaw trades that may attract crime, however, would in the same way justify prohibition because many fights take place in bars. The answer is not to outlaw the voluntary and truly lawful activity, but for the police to see to it that the genuine crimes do not get committed. It should be clear that advocacy of freedom for prostitution does not, for the libertarian, in the least imply advocacy of prostitution itself. In short, if a particularly puritanical government [p. 107] were to outlaw all cosmetics, the libertarian would call for legalizing cosmetics without in any sense implying that he favors — or for that matter, opposes — the use of cosmetics themselves. On the contrary, depending upon his personal ethics or esthetics, he might well agitate against the use of cosmetics after they become legalized; his attempt is always to persuade rather than to compel.

If sex should be free, then birth control should, of course, be free as well. It is unfortunately characteristic of our society, however, that scarcely has birth control been made legal when people — in this case liberals — arise to agitate for birth control being made compulsory. It is true, of course, that if my neighbor has a baby this may well affect me for good or ill. But, then, almost everything that anyone does may affect one or more people. To the libertarian, this is scarcely justification for using force, which may only be used to combat or restrain force itself. There is no right more personal, no freedom more precious, than for any woman to decide to have, or not to have, a baby, and it is totalitarian in the extreme for any government to presume to deny her that right. Besides, if any family has more children than it can support in comfort, the family itself will bear the main burden; hence, the almost universal result that the wish to preserve a treasured rise in living standards will induce a voluntary reduction of births by the families themselves.

This brings us to the more complex case of abortion. For the libertarian, the “Catholic” case against abortion, even if finally rejected as invalid, cannot be dismissed out of hand. For the essence of that case — not really “Catholic” at all in a theological sense — is that abortion destroys a human life and is therefore murder, and hence cannot be condoned. More than that, if abortion is truly murder, then the Catholic — or any other person who shares this view — cannot just shrug his shoulders and say that “Catholic” views should not be imposed upon non-Catholics. Murder is not an expression of religious preference; no sect, in the name of “freedom of religion,” can or should get away with committing murder with the plea that its religion so commands. The vital question then becomes: Should abortion be considered as murder?

Most discussion of the issue bogs down in minutiae about when human life begins, when or if the fetus can be considered to be alive, etc. All this is really irrelevant to the issue of the legality (again, not necessarily the morality) of abortion. The Catholic antiabortionist, for example, declares that all that he wants for the fetus is the rights of any human being — i.e., the right not to be murdered. But there is more involved here, and this is the crucial consideration. If we are to treat the fetus [p. 108] as having the same rights as humans, then let us ask: What human has the right to remain, unbidden, as an unwanted parasite within some other human being’s body? This is the nub of the issue: the absolute right of every person, and hence every woman, to the ownership of her own body. What the mother is doing in an abortion is causing an unwanted entity within her body to be ejected from it: If the fetus dies, this does not rebut the point that no being has a right to live, unbidden, as a parasite within or upon some person’s body.

The common retort that the mother either originally wanted or at least was responsible for placing the fetus within her body is, again, beside the point. Even in the stronger case where the mother originally wanted the child, the mother, as the property owner in her own body, has the right to change her mind and to eject it.

If the State should not repress voluntary sexual activity, neither should it discriminate for or against either sex. “Affirmative action” decrees are an obvious way of compelling discrimination against males or other groups in employment, admissions, or wherever this implicit quota system is applied. But “protective” labor laws in regard to women insidiously pretend to favor women when they really discriminate against them by prohibiting them from working during certain hours or in certain occupations. Women are prevented by law from exercising their individual freedom of choice in deciding for themselves whether or not to enter these occupations or to work during these supposedly onerous hours. In this way, government prevents women from competing freely against men in these areas.

All in all, the 1978 Libertarian Party platform is trenchant and to the point in setting forth the libertarian position on governmental sex or other discrimination: “No individual rights should be denied or abridged by the laws of the United States or any state or locality on account of sex, race, color, creed, age, national origin, or sexual preference.”