Notes on the crisis, part 3

3. Ending the tyranny of the majority

(Part 1 of this rant is here, Part 2 here.)

I first heard the phrase "tyranny of the majority" when reading many years ago about the history of the ratification of the U.S. Constitution. The concept is pretty simple: majorities have a nasty history of oppressing minorities in just about any and every way that they can get away with. The idea behind our Bill of Rights was that we collectively agreed to put some individual liberties beyond the power of any popular or legislative majority to curtail. (See, most famously, Federalist 10.)

In practice, at least these days in the U.S., it's actually sort of a tyranny of the minority. That's because the majority of people don't care much about any given issue, which means that highly motived minorities can exert disproportionate influence over public policy. To take an example from the other ever-controversial subject the politics of which I track closely, most Americans, when polled, agree that citizens should have the right to own firearms. But in reality, it's a rather small minority who care enough about the subject to make it a primary focus of their political activity--voting, financial support for candidates, following the news, attending rallies, and so on. As it happens, there is a somewhat larger bloc who care passionately in favor of gun ownership rights than who care passionately for restricting them. But whenever some legislative proposal to either expand or contract gun rights comes up, it's a small fraction of the populace whose voices carry the day in one direction or the other. The vast middle is pretty apathetic about any issue you can name.

And that's how we get to a situation like poker's Black Friday. The percentage of the population who deeply believe that it is sinful or erosive to society for you to play a $1 SNG in your pajamas and it is therefore an appropriate use of governmental force to imprison you if you try it is, objectively, tiny. But they were able to put enough pressure on a few key congressmen and senators at the right time (i.e., when Bill Frist was contemplating a presidential run) that they squeaked through the UIGEA in 2006, which has now led to the meltdown. If we had a national plebiscite on the legality of online poker, we'd likely win. But, of course, that's not how things work.

Many writers have taken to their computer keyboards over the last few days to propose tactics for getting the situation resolved in our favor--most commonly by renewing efforts to push through Congress something like last year's Frank bill. In contrast, I would like to point out what I submit is the only real long-term solution, with "long-term" there meaning over the course of generations and even centuries.

In addition to the many pragmatic problems I think any federal regulatory scheme over online gambling will have, its greatest defect and vulnerability is that it is reversible. Sure, we may get the political pendulum to swing far enough our way that such a thing passes. But time marches on, legislators get replaced, and popular opinions shift. Sooner or later, there could easily come a majority--or highly influential minority--who will take it all away again, in the name of protecting us from our own allegedly destructive tendencies. First we get the 18th amendment (prohibition), then we get the 21st (repeal).

There is only one permanent solution, as I see it, and that is the emergence of a collective, nationwide, broad-spectrum detente on restrictions on individual choices. Libertarians have long understood this concept. You may think the war on drugs is a great use of government's budget and coercive powers, while you are appalled that a stoner thinks the same federal resources should be used to keep you from owning a .50 caliber semi-automatic assault rifle.

Well, rather than spending your time and energy trying to push your legislators to protect the rights you think are important and attack the rights the other guy wants respected, how about both of you calling off your dogs? Agree to disagree, but, more importantly, agree to leave each other alone.

You agree to let me worship Satan, and I won't stand in the way of you building your mosque in Manhattan. You let me drive a Humvee, and I won't try to force you to buy only compact fluorescent light bulbs. You let me use whatever birth control option I care to, and I won't protest your same-sex marriage. You don't object to my sexual fetish web site, and I'll support your freedom to snort cocaine. You agree to repeal laws banning restaurants' use of trans fats, and I'll lobby to repeal laws mandating that motorcycle riders wear helmets. You let me buy Four Loco, and I'll let you buy Sudafed without a prescription or filling out a bunch of forms.

I could multiply examples, but you get the idea.

What doesn't work is the continual battle of a whole bunch of small minority groups trying to fend off bans of their favored activity, with some other small minority group trying to erect or strengthen such bans, each making pragmatic arguments about why their point of view is superior. That only results in hundreds of little, ongoing games of political tug-of-war, with this side or that side temporarily moving the marker a little this way or a little that way.

The only way to get the freedom to play poker genuinely secure in the long term is to achieve a broad consensus not about poker specifically, but on the general principle that we will be a truly free society, meaning one in which we do not seek to control each other's conduct. With the caveat that there be no use of fraud or force, people should be free to expend their money, time, and energy however the hell they choose to.

If you read this blog, you probably share my outrage that people like Jon Kyl and Bob Goodlatte can so flippantly decide that they think online gaming is, in some sense, "bad," and therefore write and pass laws that ban or greatly restrict it, and go home feeling that they have done good work and made the country a better place in which to live. But if you at the same time applaud the passage of laws that prevent others from marrying who they choose or ingesting whatever substances they most enjoy, you're a hypocrite. More pragmatically, you're locked in a perpetual battle that you cannot ultimately win, like the oppositely-tinted black-and-white guys at each other's throats at the end of Star Trek's "Let That Be Your Last Battlefield."

Let me put this bluntly, and in a way that I know in advance will raise hackles: If you voted for either Obama or McCain in the last presidential election, or for either Bush or Kerry before that, you're now getting what you deserve, and, moreover, what you asked for.

Oh sure, you didn't specifically want them to ban online poker. But you had to know that all of the major-party candidates were, at heart, statists--men who believe that the government should have ever-increasing power and control over the lives of its citizens. Maybe you voted for Obama because you thought he would sign into law tougher environmental restrictions or erect protectionist tariffs, or for McCain because you thought he would crack down on immigration or continue a ban on gays in the military. It doesn't really matter what the details were--you were voting for somebody on the basis that he would use force to prevent other people from doing what they wanted to do. You had to just cross your fingers and meekly hope that the people you elected wouldn't do anything to keep you from your favored activities.

Sorry, but you miscalculated. You put into office people because you supported their banning of A, B, and C, and you end up shocked--SHOCKED--that they also banned D, which you think is among your God-given rights. Well, as Fox Mulder once asked in "The X-Files," "Did you really think you could call up the Devil and ask him to behave?" Statists are statists. They not only think they have the moral authority to enact restrictions on various freedoms, they deep-down think it is their duty, their mandate from the people to do so.

As long as we give them guns and just hope that the guns will be pointed at somebody else, we can't really be surprised if we sometimes catch a bullet from the crossfire.

The solution is to elect people who agree that individual liberty is the paramount value, to be restricted as little as possible consistent with ordered society. There are precious few such people holding elected office these days. Ron Paul comes the closest of anybody I know of. When he was running for president, part of his stump speech was to tell the crowd, "I don't want to run your life!" You never heard those words from Obama. (And if you did, you would know it was just another of his lies.)

I'm afraid that trying to convince a working majority of Americans that online poker is terribly important and should be left to flourish without governmental interference is an impossible task; most of them just don't care enough to lift a finger on your behalf.

I suggest instead trying to convince them that freedom is terribly important. First, you're more likely to get agreement on that point than you are about the specific issue of online poker. Second, once we come to a general consensus on that point, the question of whether you should be able to log onto Full Tilt is already answered in advance, and it's not a battle you'll have to wage.

(For some freedom-loving voices on the poker situation, see here, here, here and here.)