by Matt Barr

Good cheer

Here's a libertarian conundrum. If it shakes up the squares, daddy-o, they're all for it. But normally they challenge legislation on the grounds that it regulates private and/or consensual and/or adult activity that the state has no interest in or business regulating.

What happens when someone passes a law against "overtly sexually suggestive" cheerleading? One answer is that such a law violates the Good Idea Clause of the constitution, forbidding legislation liberals or libertarians disagree with. A more honest, if just as indefensible (and frankly know-it-all), argument is a broader one against "morals" legislation. Under this theory, murder, assault, rape and so on are properly made illegal only because they harm others, and punishment is entirely deterrent, there is no retributive element to punishment nor moral dimension to those laws. Codifying moral determinations is wrong.

What makes this example interesting is precisely that there is a public, nonconsensual (you're there to watch a football game, after all, and cheerleaders are supposed to attract your attention from elsewhere during breaks in the game), non-adult element to it. While Texas legislators can argue that suggestive cheerleading leads to "pregnancies, dropouts and the spread of sexually transmitted diseases," no one seriously believes this. The law is an expression by the state that its people disapprove of certain behavior.

This doesn't pass muster with the Good Idea Clause, but doesn't find refuge in the penumbrae and emanations of the Bill of Rights and Fourteenth Amendment the way private conduct may. So objections to something like this have to be grounded in a denial of the right of a society to establish its own moral rules through a variety of means, including (but not exclusively) the law. Over the last 35 years libertarians, like liberals (conservatives are still slow to learn this), have learned to attack the lawmaking authority rather than argue against the law, and so this "moral" basis is rejected as illegitimate.

Considering the vast, deep history of morals-based laws, this is an uphill climb, likely more work than simply trying to persuade an electorate that laws like the cheerleading one are dumb. But when it comes to politics, wind up a libertarian and he'll head right off on the path of most resistance every time.

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