Many people are troubled by the expanse of the state in the enforcement of laws against driving under the influence of alcohol. There seems to be something wrong with this picture for a number of reasons. The law is arbitrary and shifts with the political season. The perpetrators can’t really be sure if they are over or under the limit. And we all have vast experience with people who drink surprising amounts of liquor and drive all the time, but never get in accidents and do not seem to be driving in an unsafe way.

Then there are the frequent cases in which cops arrest people for DUI who are stopped for something else, like a burned-out tail light. I’ve known of people who have been arrested in their own driveways, having gotten home safely and harmed no one. They are arrested and imprisoned, a humiliating and terrible experience for anyone to go through.

Clearly, this DUI enforcement has been a boon to the police but has it really curbed drunk driving? You might consider staking out your local bar, following how much people drink, and observing how many get in cars after. I’ll just state what most everyone knows but hardly anyone says: drinking and driving is a national sport in the U.S. In the vast, vast majority of cases, no harm is done.

Murray Rothbard once told me that he thought drunk driving should be legal. I was stunned and shocked that anyone would say such a thing. But over time, I began to see his point. It is not outrageous at all. He was exactly right.

With laws against DUI, what’s being criminalized? Not reckless driving as such. Not aggression against anyone. What’s being criminalized is the chemical make up of the blood in your body. That itself should be no crime. To make having a certain blood content illegal is essentially totalitarian.

But you say that drinking is associated with bad driving. Well, enforce the laws against reckless driving. Many more people drink and drive than drive recklessly. Some people drive even more safely after a few drinks, correcting for their delayed responses. We do this all the time, e.g. after a workout, when we are sleepy, when we are angry, whatever. Human beings adapt with rationality.

And you know what happens on New Year’s some other holiday. People always say “be careful, there are lots of drunk drivers out there.” Just the prospect alone makes everyone drive more defensively.

Regardless, the law has no business criminalizing associated peaceful behaviors rather than real crimes against person and property. For example, grudges are associated with murder in the sense that a vast number of murderers are carrying a grudge. Do we make grudges illegal? That would be crazy and unenforceable, even if there were some chemical way to measure what constitutes a grudge. But we make driving under the influence illegal though it is roughly the same thing. It targets an associated condition rather than the crime itself.

Laws against drunk driving have vastly expanded police power and done nothing to stop the practice. The best prevention against unsafe driving from drinking has been provided privately: friends, services offered by bars and restaurants, community interest groups, etc. This is the humane and rational way societies deal with social risks. The police have only messed up this process by adding a coercive element that targets liberty rather than crime.

And we can see where this is heading. Texting is now illegal in most places. So is talking on the phone. Maybe talking itself should be illegal. Some communities are talking about banning eating. All of this is a distraction from the real issue.

As Radley Balko has said: