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Should Schwarzenegger and Strauss-Kahn be Prosecuted for Adultery?

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One of the silliest and not-thought-out arguments that drug-war proponents make against libertarians is the following: “Since you favor drug legalization, that means that you favor drug abuse.” The accusation is a perfect example of the mindset that public-schooling produces within people, one that examines matters in a purely superficial way, one in which there is no analytic or critical thinking involved.

The fact that someone does not wish to criminalize some particular conduct does not necessarily mean that he favors the commission of the conduct. He might, but not necessarily.

Libertarians favor drug legalization first and foremost as a matter of individual freedom. Under fundamental principles of freedom, people have the right to ingest harmful substances, even if everyone else disagrees with the choice. Second, libertarians point to the horrific consequences of the drug war — violence, gangs, cartels, corruption, robberies, muggings, etcetera — as a secondary reason for calling for drug legalization.

Within this context, I can’t help but wonder how many statists would like to see former Governor Arnold Schwarzenegger criminally prosecuted for adultery.

Adultery? Yes, adultery.

You might respond, “Jacob, that would be ridiculous. Adultery is a breach of private marital obligations and a violation of the Ten Commandments. That’s no business of the state and it certainly shouldn’t be a criminal offense.”

Yet, the person with a drug-war mentality might well respond, “Oh, so you favor adultery? Anyone who favors the legalization of adultery must favor the commission of the act itself.”

I think it’s easy to see that that, again, is ridiculous, superficial thinking. People might well believe that adultery is no business of the state but, at the same time, not feel that it is morally right or appropriate behavior.

One reason that statists are not clamoring for prosecuting Schwarzenegger for adultery is that it isn’t a criminal offense in California. But it is in 19 other states, including New York. That’s the state in which former IMF head Dominique Strauss-Kahn is being held on criminal charges of rape and sexual abuse of a hotel chambermaid.

Why might the New York adultery statute become relevant in Strauss-Kahn’s case? His lawyers are insinuating that he did in fact engage in sex with the chambermaid but that the relations were consensual. Such being the case, Strauss-Kahn might well be confessing to the crime of adultery while defending himself against the other charges. The reason he might be willing to take such a chance is that adultery in New York is a misdemeanor while the other charges are felonies.

This entire area provides a dividing line between libertarians and statists. Libertarians hold that a person should be free to engage in any conduct whatsoever without the interference of the state, so long as the conduct is peaceful. In fact, Christian libertarians believe that this is what God’s great gift of free will is all about — the freedom to choose between sin and righteous conduct, so long as there is no force initiated against another human being (e.g., murder, theft, rape, etc.).

Statists, on the other hand, while oftentimes giving lip service to freedom of choice and free will, in practice condemn such ideas. They feel that God was wrong to trust man with so much freedom and that when free to make such choices, most people will choose wrongly. Therefore, statists say, the coercive apparatus of the state should punish people when they make these types of immoral, harmful, or sinful choices.

Thus, it is not surprising that statists favor criminal laws that punish people for such peaceful and consensual acts as gambling, prostitution, adultery, drug possession, drinking, and smoking. It is also not surprising that there are horrible consequences when they do.

No, neither Schwarzenegger nor Strauss-Kahn should be prosecuted for adultery, any more than drug users, gamblers, prostitutes, drinkers, smokers should be prosecuted for their acts. Adultery is a matter for God and the people involved to resolve, not Caesar.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.