0 to make something illegal: --
The law has criminalized prostitution but not got rid of it.
Instead, he offers a more sophisticated balancing test that is designed to criminalize offense more sparingly.
Moreover, the omitted factor operates as a conceptual requirement of offense and not merely as something to be weighed in the balancing decision to criminalize.
The subtext was that a greater national shame than criminalizing liquor distribution was in store if prohibition were abandoned.
The point of stating it is to illustrate the possibility of such arguments for criminalizing mere offense.
The conclusion that conduct is offensive (for the kind of reasons just proposed) is not sufficient to establish that the conduct should be criminalized.
It is enough to meet the demands of the harm principle that, if the action were not criminalized, that would be harmful.
The justification for criminalizing these cases is, in part, practical.
And when we criminalize that element, we suppress that particular, valuable way of life.
