David R. Henderson  

He Who Wills the End Wills the Means

What (if anything) can we lear... Friday Night Video: Henderson ...

In an otherwise excellent segment on the tragic Eric Garner case, in which some New York cops choked to death a man selling loose cigarettes, Jon Stewart, generally a smart man, either misunderstands or plays to his audience's ignorance. Either way, it's worthwhile correcting him because there is a very large point to be made about this case, a point beyond the already large point about police gone wild.

The specific issue is a claim made by Senator Rand Paul. Here's what the clip has Senator Paul saying:

I think there's something bigger than just the individual circumstances. . . . Some politicians put a tax of $5.85 on a pack of cigarettes. So they've driven cigarettes underground by making them so expensive. But then some politician also had to direct the police to say "Hey, we want you arresting people for selling a loose cigarette."

Stewart's response? "What the f**k are you talking about?"

Paul already said what he was talking about. Jon Stewart simply didn't want to acknowledge the point. Stewart says correctly that the government can enforce laws without going to such extremes. Sure. It can. But one thing we have to be aware of whenever we advocate a law is that government agents who enforce it will sometimes go to extremes.

Yale University law professor Stephen L. Carter makes the point well. In a piece titled "Law Puts Us All in Same Danger as Eric Garner," Professor Carter writes:

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

In short, he who wills the end wills the means.

Carter continues:

I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won't lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.

Take that, Stewart.

The whole Carter piece is well worth reading, and, if you want more than a laugh, is way more valuable than Stewart's video. Carter talks about the overregulation and overcriminalization that the government has done to our society. Carter cites an estimate from Douglas Husak that "more than 70 percent of American adults have committed a crime that could lead to imprisonment." And in a very large percent of these cases, the people committing the crime don't even know they did so.

Of course, Garner did know that he was breaking the law. He was engaging in illegal trade, trying to benefit himself and those he sold to. The horror!

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COMMENTS (27 to date)
Glenn writes:

"in which some New York cops choked to death a man selling loose cigarettes"

This statement is so factually wrong as to probably be libelous (questions of intent and whether it's reasonable to be this deluded linger). Brave.

Andrew_FL writes:

The most frustrating thing is Eric Garner has already been co-opted by race hustlers as a race martyr. The fact the he is, in fact, a tax martyr, is lost on most commentators.

brendan writes:

Maybe we should decriminalize resisting arrest then.

Watching progressives and libertarians play red herring volleyball is getting old.

Daniel Klein writes:

David's point is basic, but somehow most people quickly and easily lose sight of it. Nice post, David.

As for Jon Stewart (whom I like), yeah, I thought he'd know that in the grand scheme of things it is the coercive restrictions (high tobacco taxes, in this case) that are important, not particular instances of especially abusive enforcement.

David R. Henderson writes:

This statement is so factually wrong as to probably be libelous
You forgot to say why. If you tell me why and convince me, I’ll correct it. If you read this blog much, you know that I do that.

Steve Brecher writes:

Albeit without assiduous investigation, I've not seen evidence that Garner was selling loose cigarettes on the occasion of his homicide.

I have heard a credible argument that it was not the neck hold that suffocated him, but the pressure from knees on his back which compressed his lungs. An element of this argument is that there was not sufficient pressure on his larynx to prevent speech.

An interesting corollary of the latter argument is that the homicide was not primarily the result of the police officer in the news.

Steve Brecher writes:

In my previous: result of -> result of the actions of

In a wider view, whether he was selling on the occasion, or precisely what elements of force caused his death are not relevant to the the political issues.

Tom Nagle writes:

Dan Klein seems to have captured the essence of David's point in the statement: "in the grand scheme of things it is the coercive restrictions (high tobacco taxes, in this case) that are important, not particular instances of especially abusive enforcement". If so, then it strikes me that the hypothesis is refuted by many data points. Some countries--the U.K., Denmark, Sweden, Netherlands, Switzerland--seem to enforce fairly restrictive laws without brutality, while others that have fewer restrictions are excessively brutal. I used to live in Massachusetts, where laws are more restrictive than in Florida where I live now. I prefer the less restrictive laws in Florida, but I fear the police much more.

A recent radio segment on NPR talked about how police shootings of unarmed people has increased since a Supreme Court ruling (do not recall when but within last 20 years) that courts must "give deference" to whatever the police killer claims to have been thinking at the time. If the facts lend themselves to any possible interpretation that could justify opening fire--"I thought his movement toward me was an attack", "I thought he was reaching for a weapon"--then the conservatives on the court claim that justifies lethal, unlimited force--not just a proportionate response.
The danger in making the connection that David has made is that it precludes cooperation with people who believe in restrictive laws but not in excessive force. Thus I am surprised by this posting because David works exceptionally well with people across the political spectrum on issues where their views overlap his. But his post seems to say "If you believe in restrictive laws then you believe in brutal policing." I just don't see it.

Daniel Kuehn writes:

Sharing what I wrote on facebook:

I don't understand this at all. It's not as if a cigarette tax is the ONLY law on the books. We guarantee due process as well. You absolutely are not willing all means up to and including this by willing an end. (Obviously I've got no substantial disagreement on the wisdom of excessive cigarette taxes).

Think of what you are claiming. I support property rights and I support state enforcement of property rights. Am I willing police to choke-hold a teenage pick-pocket by willing the enforcement of property rights?

On Carter's point, "Think about the excesses in real life" I fully endorse. It's part of the reason why we have things like protection of due process. But that's quite a different claim from "He who wills the ends wills the means".

David R. Henderson writes:

@Tom Nagle and Daniel Kuehn,
Excellent points. Were I to write this post again, I would definitely change the title and I would make the point more probabilistic. Regarding working with people across the spectrum, though, Tom, I don’t think that’s a good criticism, given that in quoting Stephen Carter, I was doing just that.

JKB writes:

@Daniel Kuehn,

I've kept this quote which is so on the point:

When we're saying "the government should intervene," we're saying "an organization with guns should threaten to lock people in cages if they don't comply with its dictates." --Art Carden, Econlog

Implied is that the organization with guns will send its agents to seize people who do not comply and put them in those cages. Those people who resist the organization's agents will be assaulted and battered, hopefully within the law. Some may not survive the encounter even if the violence is lawful.

Daniel Kuehn writes:

It seems very off point to me and it completely under-appreciates the point of constitutionally structuring government.

As in this cigarette tax discussion I doubt I'd disagree on the ultimate point you're making in many cases, but you're defending it very badly by representing the situation like this.

Greg G writes:

It is human nature, not the rule of law, that puts us all "all in the same danger as Eric Garner." As Daniel Kuehn has shown above, if you want a government that defends property rights you are favoring giving government this authority. Yes, I get it that you only want government authority to extend as far as you think it should go. That doesn't make you different. That pretty much describes everyone.

Being an anarcho-capitalist does not solve this problem. It makes it worse. Then the authority of everyone to execute someone anytime they feel threatened is expanded. In all cases there is no substitute for personal responsibility and good judgment.

If you are not an anarcho-capitalist and think there are any government functions that need to be funded by taxes then cigarettes seem to me to be one of the things that ought to be taxed the most. In this case the tax on cigarettes was just the excuse for, not the cause of, the hyper-aggressive style of policing that lead to tragedy.

David, I appreciate the fact that you consistently argue in good faith and accept criticism generously as you did with Daniel and Tom above. That is one of the reasons I always want to read your stuff even though I often disagree with you.

Pajser writes:

Violence caused by enforcement of the law has little in common with number of regulations. Assume that all property crimes are covered by single item in law: "Breaking of the property right is punished with fine or imprisonment for maximally ten years." Do you think that enforcement would be more or less violent?

Also, imperfection of the enforcement is not very strong argument. We brush our teeth, toothbrushes are transported by trucks and truck drivers as imperfect persons who occasionally cause fatal accidents. Some quantification is needed.

Daisy T.D writes:

I agreed with Tom Nagle. I don't think high cigarette tax is the cause for this incident, but an excuse. If I remember correctly, one of the main reasons why cigarette highly taxed because of its deadly health-causing disease, lung cancer. I am sure when this tax increased was proposed, the law of supply and demand was considered. No Economist would imagine that by imposing high tax on tobacco products, someone will be choked to death.

It's the enforcement law that needed to be revisited, studied and considered. Policemen will take ANYONE down whom THEY BELIVE is the treat to them.

Living in America, we have enough freedom to carry on our daily lives. To me, it's a vicious cycle between people whom push their freedom to the limits and the law enforcement. Some people are born with rebellious souls and those are the people that tend to be visible to the law enforcement and when these people resist arrest, the police are more hard on them and because the law enforcement are hard on them, they rebel even more. It's not about races at all.

I give you one personal example... I am an Asian female and when I was in my 20s, I went to college in Minnesota. One day, I went to visit my friend in Minneapolis and parked my car in a parking lot,waited for my friend. I was confronted by 2 policemen. After looked at my student ID, they told me that the owner of the restaurant called them and he didn't want me to park my card in his lot because I was speeding 90 mph. I asked the police if there was proof that I sped at that speed (the parking lot was tiny. I couldnot even do 30mph).

Immediately, they said I talked back to the police. They grabbed my shoulder, turned me around and handcuffed me. Now, I was only 100lbs woman. An hour later, after searched my card, they let me go but told me to go back to where I belong. Now, I can view this as a race's incident but since they know I was not Minnesota or Minneapolis resident, they could mean that I should go back to the town where my university was.

A few years later my baby-sister got in trouble with the law because someone rear-ended her car and refused to provide her with ID, she grabbed the man's wallet and his wife called the police. My sister resisted arrest when the police came they arrested and jailed for one night. My parents had to bail her out.

Now, as you can see, both I and my sister are upstanding citizens, we don't take drugs, get in trouble. At the time of these incidents we were both college students. My sister was a Molecular biology student at UCLA and I was a Pharmacy student at University of Minnesota, Morris. But one similar thing that we have in common is a rebellious soul but I was a bit more scared than my sister because I was alone in Minnesota so I didn't resist arrest and I was not a threat to them so, they let me go. However, my sister was not so fortunate, she resisted arrest because she didn't think that she was at fault and she ended up paying for a night in jail.

So, in summary, I believe Eric Garner's case was not about races but about the law. the Policemen are trained to believe that they have a right to bring ANYONE down if they BELIEVE they are threatened or the person resist arrest. It doesn't have anything to do with high tobacco taxes.

Phil writes:

In neither the Brown case nor the Garner case was the civilian killed for theft or tax evasion or any other crime; they were killed while resisting arrest.

The necessary condition in Carter's quote is "...if you resist..."

In order for a government to try someone for a crime, that someone needs to be seized. It matters not whether the crime is tax evasion or mass murder. Because governments have been granted the right to use force in these situations, the force applied will typically be overwhelming. It is unfortunate the degree of force in both cases was so disproportionate to the underlying offense, and perhaps even disproportionate to what was needed to control the situation. But neither incident would have occurred had the individual simply cooperated with the police at the critical moment.

There is a time to resist bad laws; while being arrested is a particularly stupid time to do it.

Tylaw writes:

"In this case the tax on cigarettes was just the excuse for, not the cause of, the hyper-aggressive style of policing that lead to tragedy." - Greg G has nailed the issue and what's wrong with your argument David.

That cop wanted to brutalize Eric. He used illegal force when force itself was unjustified. To say that supporting cigarette taxes causes these things is to miss the issue entirely. I think Jon Stewart successfully answered you before you even wrote this piece.

Greg G writes:


There is a big difference between resisting arrest violently and non-violently. Garner did not threaten or fight or attack the police in any way. He did not even use abusive language. He merely failed to cooperate.

Mike Hammock writes:

I was surprised to see The Verge has a piece supporting Rand Paul on this issue.

Ruy Diaz writes:

"...the tragic Eric Garner case, in which some New York cops choked to death a man selling loose cigarettes...."

I think the incident was tragic, but not in the manner implied. Mr. Gardner, after all, was very combative, and did resist arrest--but he did not represent a serious threat to the officers involved. Officer Pantaliano locked unto his neck for about five seconds while tackling him to the ground--but there was no malice involved. There are no villains here.

Kendall writes:

Do we really to want to live in a society which only has laws we are willing to kill to enforce? Are you willing to kill to prevent vandalism, shoplifting, petty theft, sexual harrassment, car theft, tresspassing, etc? If not, do you want to live in a society where these things are legal? So I could steal your car and you would have no legal recourse? Surely your car is not worth shooting me is it?

Phil writes:

Greg - Failure to cooperate is resisting. I agree there are degrees of resistance, as there are degrees of appropriate force in response, but that is all beside the point.

The original post posits that society should be circumspect about what activity is criminalized because it could lead to a beating or death. I am simply clarifying that statement omits a critical component: it is not the underlying crime, but rather resisting arrest, that leads to the beating or killing.

Carl writes:


It seems to me you're giving future shoplifters an incentive to threaten violence when cops try to restrain them if you let it be known that shoplifting will not be enforced with force because it's not a serious enough crime.

I agree, of course, that using violence against shoplifters as a first step is absurd. There needs to be a process of escalating force(reasoning, gentle restraint, firm restraint with an overwhelming number of police to reduce the likelihood of a violent response and so on). Notice that I didn't say shooting. It should be virtually impossible to get to shooting from shoplifting if the police force is accountable and well trained. But that's just good policing and good policing of the police. It doesn't change the underlying fact that every law is backed by the threat of violent and even lethal force should the offender resist forcefully.

And I would like to ask everyone who's claiming that more laws don't increase the likelihood of people being killed whether there will be fewer violent deaths involving law enforcement and people selling and using marijuana in states where it is now legal than there were during the time it was illegal.

Marky writes:
Stewart simply didn't want to acknowledge the point.

Stewart is clearly acknowledging the point the issue is police brutality, a dysfunctional justice system and racialized society.

Talking about cigarette taxes is an nth order concern. The choice of Rand Paul to call 'squirrel' reveals his underlying position and is why he justly is skewered.

Black people were being killed long before there was a war on drugs, tobacco taxes or whatever.

Carl writes:


I agree with that one of the key issues is the question of excessive use of force by the police, but I'd argue that it was more likely a huge dude issue than a race issue. I seriously doubt that a 120 pound guy no matter what his race would have received the same treatment.

integral writes:

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Thomas Mallon writes:

It's fine to point out that in general police brutality is a tail risk to any law, and that therefore we need to be careful in which sorts of laws we pass.

But if Eric Garner was white, he wouldn't be dead, and by making this about your tax hobby horse you distract us from the fact that police brutality is not evenly distributed across the population.

Arguably making sure one segment of the population is not disproportionately murdered by the police is more important than, and completely unrelated to, general tail risks associated with more regulation.

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