In my lifetime, American society has been transformed by widespread accommodation of vice. Marijuana has been legalized in many jurisdictions, as has addictive online gambling. Not surprisingly, pot use and regular gambling have increased. In 2025, 17 percent of adults report smoking pot daily, up from 8 percent in 2020. Less than a decade ago, nobody had a sports betting app on his smartphone; today, half of American men between eighteen and forty-nine have opened accounts. And pornography is readily available on the internet, protected as free speech by the Supreme Court.
Social norms have likewise shifted. Open use of illegal drugs is widely tolerated. Silicon Valley titans use ketamine and other substances, making a mockery of the restriction of these drugs to medical use only. The New Yorker publishes essays cheering “throuples” and other sexual arrangements. Activists campaign to remove the stigma from “sex work,” which few local governments make efforts to prevent.
Writing in National Affairs (“The Case for Prohibiting Vice”), Charles Fain Lehman observes that social conservatives have been routed in recent decades. Large-scale social trends run against us. But Lehman thinks we share some of the blame. Too often, those who wish to sustain moral codes accept the dominant terms of public debate, which rest on the notion that people should be free to do as they wish in their private lives, as long as nobody else is harmed.
For most of American history, a libertarianism in private life, restrained only by the harm principle, did not hold sway. American constitutional law accords “police power” to the states, allowing them to pass laws to protect and promote the health, safety, and morals of their citizens. That power was widely used. Aside from Nevada, states prohibited gambling. Many states imposed significant restrictions on the sale of alcohol. Sexual deviance was criminal, and in many other ways personal behavior was regulated.
But as Lehman notes, the second half of the twentieth century saw a change in outlook. The Supreme Court invented a right of privacy to strike down a Connecticut law that prohibited the use of contraception. The right was subsequently extended to invalidate laws criminalizing abortion. The Court then struck down laws against sodomy, appealing to a different right but using the same logic: Private conduct cannot be regulated by law. Government must limit its concerns to behavior with public consequences, ones that cause harm to others.
In truth, appeals to the harm principle are persuasive only when we agree about what constitutes a harm. The concept of hate speech offers an obvious example. A progressive urges punishment for hate speech, because he considers inclusion and anti-discrimination precious social goods, which are threatened by words that are deemed to reinforce historical patterns of exclusion and discrimination that do harm. I do not share the progressive view, and for that reason, I believe that hate speech should be policed by standards of civility, not government power.
The dependence of the harm principle on substantive moral judgments has long been evident. In his Notes on the State of Virginia, Thomas Jefferson famously defended religious liberty by appealing to the harm principle: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
Yet, in the same Notes, we find Jefferson worried about the harm of slaveholding—not on slaves, but on white children. He notes that slaveholding involves “the most unremitting despotism on the one part, and degrading submission on the other. Our children see this, and learn to imitate it.” How can witnessing naked dominion not corrupt the youth? “The man must be a prodigy who can retain his manners and morals undepraved by such circumstances.”
It seems there exist harms other than a pocket picked or a leg broken. The behavior of others can corrupt us morally and spiritually, which is a harm to the soul. Jefferson was indifferent to the corrupting consequences of false religions openly practiced, because he was indifferent to the importance of true religion. By contrast, he prized America’s democratic spirit. It was for him our signal virtue as a people, which is why he feared it would be corrupted as children were exposed to the realities of slaveholding.
Something like Jefferson’s line of reasoning is behind most legislation that regulates morals. In some instances, the concern is for the young. A society of disordered, dysfunctional, and vicious people will tend to produce the same qualities in the next generation. Thus, responsible leaders will pass laws to restrain vice. In other instances, the legislation of morals is justified by the principle of paternalism: the duty of the strong to protect the weak, which in this case means those who are easily tempted. Paternal duty animates an influential summation of the common law standard for obscenity, the Hicklin test. It defined prohibited material as that which is likely “to deprave and corrupt those whose minds are open to such immoral influences.”
In the 1950s, the Supreme Court rejected this standard and adopted a laxer test. The change was part of a larger trend. The older paternalism had regulated morals so that our fellow citizens were not abandoned to their moral weakness. Today, we refuse this collective responsibility, deriding paternalism as an enemy of autonomy. But we’re not consistent. The campaign against cigarettes knows no limits, and in states like New York, extensions of civil rights laws effectively criminalize dissent from LGBTQ dogmas. As I’ve noted, substantive moral judgments drive ostensibly impartial judgments about harms that justify limiting freedom. Progressives interpret harm in terms of progressive values.
Lehman advises social conservatives to stop trying to shoehorn their moral judgments into liberal arguments that rest on proofs of harm. We need to talk more frankly about what it means to have a good society, one that promotes human flourishing. And we should not shy away from the obvious truth that a good society discourages vice because it is vicious.
