A brief but intense spiritual crisis beset the nation late last month after it was revealed that bottomless brunches were illegal in New York. Many New Yorkers were outraged and took to social media to say so, often in melodramatic fashion. The dismay dissipated a few days later, however, after the New York State Liquor Authority (SLA) clarified the law in question.
That law—N.Y. 117-A—makes it a crime to “offer, sell, serve, or deliver to any person or persons an unlimited number of drinks during any set period of time for a fixed price.” This makes it sound as if unlimited drink offerings are prohibited, particularly since the statute says: “UNLIMITED DRINK OFFERINGS PROHIBITED.” However, it turns out there is an exception in the case of “certain” brunch specials, which are legal “when the service of alcohol is incidental to the event.” In other words, bottomless brunches are okay.
Even so, the SLA was quick to point out that it would be “cracking down on specials that promote excessive drinking.” As for what constitutes excessive drinking, the SLA did not specify.
The New York State Liquor Authority was established in 1934 “for the purpose of fostering and promoting temperance.” It is a relic of the Prohibition era, or rather the immediate post-Prohibition era, intended to mollify the anxieties of the dry community after its experiment in totalitarian teetotalism failed.
Although Prohibition officially ended in 1933 with the passage of the Twenty-First Amendment, the prohibitionist mindset is still codified in laws throughout the country. In Hawaii, it is illegal to “engage in practices which promote excessive consumption of liquor”; such practices, one would think, include making and selling liquor. In Connecticut, it is illegal for businesses even to “permit” drinking games on their premises. In Virginia, “advertising happy hour in the media or on the exterior of the licensed premises” is a crime, and not the only one.
In 2003, after police raided 20 bars in Fairfax, Va., Police Chief J. Thomas Manger said, “Public intoxication is against the law. You can’t be drunk in a bar.” Where can you be drunk? “At home,” Manger said. “Or at someone else’s home.” If this were true, bars would cease to exist and every third house would have a bouncer standing at the front door. People go to bars to pay excessively to drink excessively.
Unlimited drink specials fall under the category of malum prohibitum (regulatory wrong) rather than malum in se (evil in itself). Whether you approve or disapprove of bottomless brunches, there is nothing inherently evil about them. They simply allow people to do in public what they would otherwise do in private—drink unlimited amounts of alcohol in a limited period of time. This is one of many things your government does not want you to do.
In January, the Centers for Disease Control and Prevention proclaimed—in a “fact sheet,” no less—that “at least 38 million adults in the US drink too much.” For the government to pronounce as disagreeable the voluntary, non-criminal behavior of adults should offend all lovers of liquor and liberty. People know the consequences of excessive drinking, which is why they do it. It’s fun, at least some of the time, and having fun is more fun than obeying the law.
In his essay “On Doing the Right Thing,” Albert Jay Nock pointed out the obvious: “Reason and common sense are above the law.” Most Americans abide by this truism. It is why people jaywalk when there are no cars in sight, and it is why they imbibe alcohol in ways the government deems to be excessive. It is why sensible people break nonsensical laws, of which there are bazillions.
There are an estimated 4,500 federal crimes. Even the Department of Justice doesn’t know the exact number. Hundreds of thousands of new enactments, from city councils to Congress, are passed each year, and no one, to my knowledge, has memorized them all. Did you know, for instance, that it is illegal to import flora into this country in violation of another country’s laws? It is. Friends don’t let friends violate the Lacey Act.
A major problem with our legal system is that it encourages otherwise law-abiding citizens to violate the law without knowing it. “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” said John Baker, a former law professor at Louisiana State University. To the extent that this is true, criminal justice is nothing more than a quaint abstraction.
Everyone knows that ignorance of the law is no excuse for violating it, but no one knows—can’t possibly know—what all the laws are or what they mean. There are far too many, and almost all of them are incomprehensible to non-lawyers.
Cognizant of the dangers of law-mongering, James Madison wrote, “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulgated or undergo such incessant changes, that no man who knows what the law is today, can guess what it will be tomorrow.” Even that sentence is hard to understand.
Sometimes ignorance is inevitable, and not only for people who drink excessively.
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