Over the past several decades, a hodgepodge of economists,
politicians, sociologists, judges, conservative commentators, and civil
libertarians have made the case for the legalization or decriminalization
of drugs. However, nearly all such arguments focus on the “failure”
of the war on drugs (Tullis 241). By removing
the criminal element from drugs, legalizers argue, the most pernicious
effects of drug use will be eliminated. Nevertheless, such contentions
miss the most important reasons for ending drug prohibition: Whatever the
result may be, drugs should be legalized because current drug laws are
ethically unjustified and unconstitutional.
The History of Drug Prohibition
Drug prohibition was not always accepted as it is
today. Indeed, until the early twentieth century, there were few
drug laws at all in the United States. Before the Harrison Narcotics Act
of 1914, one could buy heroin at the corner drugstore; even Coca-Cola contained
small amounts of cocaine until 1903 (Vallance 4).
Some of the most proscribed drugs today were sold like candy and (quite
literally) soda pop. What caused the sudden shift to prohibition?
Prohibitionists often point out that legal drugs at the turn of the century led to an enormous “drug problem,” yet they never give any evidence that any public menace due to drugs actually existed, other than showing that the public demanded drug laws (Trebach 45). This argument is analogous to defending alcohol Prohibition because “if so many people demanded for the eighteenth amendment there must have been an ‘alcohol problem.’”
Indeed, a closer look at the history of drug use shows that, before 1914, most drug users were harmless to society and even carried on normal, productive lives. Troy Duster notes that “some of the most respectable citizens of the community, pillars of middle-class morality, were addicted…. Family histories [indicate] that many went through their daily tasks, their occupations, completely undetected by friends and relatives” (9). Even after drug prohibition, Lawrence Kolb, assistant surgeon general of the United States in 1925 noted that “no opiate ever directly influenced addicts to commit violent crime” (qtd. in Trebach 57).
If drugs posed little or no threat to society, why were they prohibited? Initially, drug laws were enacted not to prohibit drugs, but regulate them. The Harrison Narcotics Act was, on its face, a revenue-generating tax, not a ban. Eventually, however, it was used to justify punishing doctors who prescribed narcotics to their patients without a “legitimate” medical purpose, thus ending legal, recreational drug use. Still, even after the Harrison Act of 1914 drugs were seen as a primarily medical problem. Over time, the perception of drugs changed from objects of medical addiction to articles of immorality, until they were seen primarily as a “criminal” problem in the 1930’s (Vallance 5). Much of this may have resulted from alcohol Prohibition, which accustomed the American public to substance regulation.
At the same time, the typical drug user changed. Before 1914, the average user was typified by the heroin addict Mrs. Dubose in Harper Lee’s To Kill A Mockingbird: white, middle-class, middle-aged, and female. David Courtwright notes that “although fictitious, Mrs. Dubose personifies the American addict of the late nineteenth and early twentieth centuries…her sex, age of addiction, race, nationality, region, class, and occupation…[are] typical” (qtd. in Trebach 56). As increasingly large numbers of males, minorities, and the poor began using drugs, people’s attitudes towards drugs changed. Duster notes that “middle America’s moral hostility comes faster and easier when directed toward a young, lower-class Negro male, than toward a middle-aged, middle-class white female” (21). Indeed, even drug law crusader James Inciardi concedes that many early drug laws gained support because of racism and xenophobia (Trebach 47). Thus, a demographic shift in drug use exacerbated the sociopolitical shift towards treating drugs as immoral.
Today, the “immorality” of drug use is widely accepted: Drugs are as vilified today as Demon Rum was before alcohol Prohibition. Some examples of this are former First Lady Nancy Reagan’s assertion that “Any user of illict drugs is an accomplice to murder” and former Drug Czar William Bennett’s statement: “[Drug abuse] is a product of the Great Deceiver” (qtd. in Szasz 32). Yet why is this level of moral repudiation not directed at legal drugs, such as alcohol or tobacco (or, for that matter, caffeine)? Furthermore, why are some drugs legal while others are not?
This brings us to a fundamental question when dealing with drug laws: what are drugs? The most common definition is “any substance other than food which by its chemical nature affects the structure or function of the living organism” (Husak 20). This includes everything from cough syrup to crack. Others use the more precise term “psychoactive drugs,” which is defined as “any substance that alters consciousness or affects mood” (Hoough 155). This more narrow definition includes prescription medication such as Prozac as well as alcohol, caffeine, morphine, cocaine, and any other number of mood- or consciousness-altering substances. Still, many equate the word “drugs” with “illegal drugs” (Husak 21).
Perhaps the most famous example of this is Nancy Reagan’s battle cry, “Just Say No to Drugs.” Clearly, she meant only illegal drugs—few would construe the motto to mean that one should “just say no” to caffeine or aspirin! Interestingly, however, the slogan is used to cover alcohol and tobacco, which remain legal. If one should “just say no” to these drugs, why are they legal?
What is it, then, about alcohol and tobacco that makes them legal? Or, conversely, what is it about marijuana or heroin or LSD that makes them illegal? A number of prohibitionists have tried to distinguish alcohol in particular from illicit drugs: Morton Kondracke begins by contending that “drugs have been the rage in America only since about 1962” (284). This statement is false on its face; it has been shown that, in proportion to the population, narcotics addiction in the late nineteenth century was up to “eight times more prevalent than now” (Duster 8).
Kondracke goes on to argue that alcohol can be consumed without being intoxicated while “with drugs, intoxication is the whole idea” (284). This sentiment is echoed by Robert Peterson, who says that “any analogy to alcohol use should be to getting drunk, not to having a drink” (330). Edwin Meese posits a similar theory (286). Yet these arguments all rest on the notion of “intoxication.” Where does one draw the line between “getting drunk” and “using responsibly”? This aside, even “getting drunk” is not against the law (in itself). Sure, drunk driving and even public drunkenness are illegal, but there is no statute barring one from overindulging in alcoholic beverages. How is this any different from “getting high”?
Finally, Meese explains the differential legal treatment by arguing that “alcohol has an extensive social and cultural history [and] has normally been regarded as a legal commodity” (287). By that token, slavery should have never been abolished. During most of the 1800’s, slavery had an extensive social and cultural history, and slaves had been regarded as a legal commodity. Clearly, social approbation fails as a test for ethically deciding what should and should not be legal.
Essentially, nearly every theory that tries to explain in rational terms why some drugs are legal while others are not lacks substance. This is because the only difference between licit and illicit drugs is the artificial morality that resulted from historical shifts in the way Americans look at drugs and drug use.
The Ethics of Drug Prohibition
If there is no real distinction between licit and
illicit drugs, how do drug prohibitionists justify themselves? Essentially,
they argue two effects of drugs that warrant prohibition: first, that drugs
harm the individual, and second, that drugs harm society.
The idea that government should keep people from harming themselves is called “paternalism.” The paternalistic argument against drugs is that they are harmful for human consumption and therefore should be illegal. By this reasoning, however, notes Walter Block, “rat poison and carbon monoxide” should be banned, “and yet our society has not so far legally excluded these items from commerce” (205).
If marketing substances unfit for consumption does not justify drug laws, perhaps drugs’ harm to society may do so. Yet let us take the case of a private citizen, say, Mr. X. Mr. X decides to cultivate several marijuana plants in a greenhouse on his property, and smokes them on the weekends. He may, perhaps, be harming himself by subjecting himself to impaired judgment, paranoia, chromosome damage, and lung cancer risk. However, is he harming society?
John Stuart Mill, in his seminal essay On Liberty, argued that
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. (10-11)That is, no society has any right to prohibit someone from doing something simply because it harms him or herself. True, Mr. X’s private act of smoking might have some nebulous consequences for the society at large. Some might argue that, should he develop cancer, society will have to bear the cost of his treatment. Under this argument, however, one could justify banning red meat (or, especially, tobacco).
Is Drug Use Victimless?
Many have tried to attack this idea that drug use is “victimless.” For example, William Bennett writes,
Those who believe [that users only harm themselves] should stand beside the medical examiner as he counts the thirty-six bullet wounds in the shattered corpse of the three-year-old who happened to get in the way of his mother’s drug-crazed boyfriend. They should visit the babies abandoned by cocaine-addicted mothers…console the devastated relatives of the nun who worked in a homeless shelter and was stabbed to death by a crack addict enraged that she would not stake him a fix (66).Though moving, this argument fails to show that drug use in itself has victims. In both the first case and the third, the crime is not drug use but murder. In the second case, the crime is child neglect. Though these crimes may have been brought on by drug use, they are crimes in themselves. Not every drug user becomes crazed, and even then not every crazed drug user shoots three-year-olds. Likewise, some jilted lovers become crazed and shoot people, but we don't ban breaking up with one's boy or girlfriend!
Is Drug Use “Slavery”?
Others seek to use Mill’s own exceptions to his libertarian
theory to argue for drug prohibition. One such commonly quoted exception
is Mill’s “slavery exception,” in which Mill argues
that someone should not be allowed to sell him or herself into slavery
because “by selling himself as a slave, he abdicates his liberty” (95).
Bennett seems to draw on this argument, as he describes drug users as “slaves”
and thus no longer part of the “self-reliant citizenry” (67). Becoming
addicted to drugs, the argument goes, is equivalent to selling oneself
into slavery, so therefore drugs should be banned. Yet, argue others,
Mill did not say anything about a “risk” of slavery, and drug use “merely
involves some risk of addiction” (Zimring and Hawkins
Indeed, how many drug users really are “slaves”? Douglas Husak notes that users of both cocaine and crack (supposedly the most addictive of drugs) are for the most part moderate users: only five percent of all cocaine users do so daily and nine percent of crack users do so heavily (more than 20 times a month) (124-125). Some even argue that the percentage of cocaine and heroin users that “can be classified as addicts…[is] about the same percentage as drinkers of alcohol who can be classified as alocholics” (Husak 125). Indeed, the most pernicious drug in terms of addiction is legal: nicotine. The nicotine addiction rate “may be as high as 90 percent” (125).
Even then, is this “slavery”? That is, does drug use rob one of one’s autonomy and will? Jan Narveson argues that “we make no decisions while asleep” either; if we proscribe drugs that undermine our decision-making power, we might as well “make sleep itself illegal, as well as the sale of sleeping pills, alcoholic drinks and probably any number of other substances” (11-12).
Morality and Illegality
What about the plain fact that drug use is immoral—that
the hedonistic pursuit of chemical pleasure at the expense of productive,
virtuous pursuits is plain wrong? Wouldn’t legalization send the
wrong moral message? Many argue just this, such as Professor Edwin
Delattre of Boston University: “[legalization would] undermine the efforts
of parents, corporations, and schools, to show that drugs are not wrong
because they are illegal—they are illegal because they are wrong” (qtd.
in Kidder 72). Yet Delattre and many others
fail to realize that just because something is legal does not mean that
it is moral. For example, “lying, gossiping, disloyalty to
employers, jilting fiancées right at the alter, disrespect to parents,
nose picking, cheating at solitaire, not keeping one’s lawn trimmed, cutting
corners, [and] not taking regular baths” are all legal (Block
210). Even adultery, one of the worst sins—and, as mentioned earlier,
often a precursor to violent crime—is legal. Simply because something
is legal does not make it right.
Legality does not even imply safety; any number of things are unsafe yet legal (windsurfing, skydiving, rock climbing, eating fatty foods, and visiting one’s in-laws). Indeed, “[alcohol] Prohibition was not repealed because we changed our minds and decided that alcohol was safe” but rather because we realized the futility of imposing moral standards through the law (Kaplan 96). To suppose that legalization would sanction drug use is to confuse legality with morality and safety. As the adage goes, “you can’t legislate morality.”
The Constitutionality of Drug Prohibition
Indeed, given our system of limited government constrained
by a written Constitution, can one legislate against drugs? Again,
one must turn to history to see how the original drug legislation was justified.
The Harrison Narcotics Act of 1914 was, on its surface, a tax measure. In fact, when the Supreme Court upheld the act in 1915, it did so despite its “grave doubt as to its constitutionality except as a revenue measure” (Szasz 41). Thomas W. Christopher, an Emory University Law Professor, suggests that the Harrison Act and the Marihuana Tax Act “on their faces, merely levy a tax and provide for effective collection thereof; regulation of an evil is not mentioned. But…[if] the sole purpose of the legislation is to regulate…the constitutionality of the acts would be in doubt” (Christopher 52). Oddly, however, their constitutionality has not been seriously questioned in over 80 years. How could one begin to question them?
Among our most cherished rights is the right to “the pursuit of happiness.” However unappealing or shallow pursuing it through mind-altering substances may be, we must still protect people’s right to do so. Although no article of the constitution explicitly secures the right to ingest such substances, there is likewise no provision for Congress to legislate against such ingestion. The ninth and tenth amendments clearly state: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Therefore, personal rights need not actually be in the Constitution.
The Right to Privacy
One of the most accepted yet unenumerated rights
is the right to privacy. This right was first “created” by the Supreme
Court Decision in Griswold v. Connecticut, allowing the free sale
of contraceptives (Brenner 165). Later, Stanley
v. Georgia, Roe v. Wade, and Superintendent of Belchertown
State School v. Saikewicz furthered the right to privacy by establishing
the right to watch pornographic movies in one’s home, the right to abortion,
and the right of the terminally ill to voluntarily end their lives, respectively.
In National Organization for Reform of Marijuana Laws (NORML) v. Bell, NORML argued that the Controlled Substances Act violated the right to privacy and the equal protection clause (Leiser 278, note 1). The court ruled against NORML, mainly because it rejected their argument that under the equal protection clause (that “no state shall…deny to any person within its jurisdiction the equal protection of the laws”) alcohol and marijuana laws are inconsistent.
In Ravin v. State of Alaska, however, the Alaskan Supreme Court ruled that private marijuana use was legal under the right to privacy (Brenner 166). The court’s decision read, “the right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home” (Husak 38).
It is curious, however, that the court did not apply the right to privacy to sale or purchase of drugs (in particular, marijuana)—or even growing marijuana for personal use. Surely one must obtain it somehow before one can “possess or ingest” it “in a purely personal…context”! The court may have wanted to steer clear of Congress’ supposed ability to ban the sale of drugs, which has been asserted through a very loose interpretation of the commerce clause. That clause, giving Congress the power “to regulate Commerce…among the several States” allows neither prohibiting a substance nor regulating how a substance is used; such powers lie with the states. Curiously, though, the Supreme Court has had no compunctions with allowing the sale and purchase of items to fall under the right to privacy (see, for example, Griswold, where the right was first asserted). Perhaps the Alaska court wished to allow the Supreme Court the opportunity to judge Federal drug laws itself.
The Right to Property
Despite support for the right to privacy, few courts
or civil rights groups (such as the ACLU) have shown any interest in attacking
(or even questioning) the constitutionality of drug laws (Husak
39-40). This may be because drug laws have become “so familiar and
widespread” that it is difficult to “return to a state of innocence” and
realize how they strip us of our most fundamental right: “the right to
determine what happens in and to one’s body” (Husak 39).
Thus, another basic yet unenumerated right is that to private property, in particular the right to control one’s most basic property: one’s own body. These rights are so basic to the ideas of capitalism and democracy that they are seldom discussed (although the right to control one’s body does surface in abortion debates). Thomas Szasz argues forcefully that this right should protect someone like Mr. X who decides to grow drugs on his own property (5-8). Furthermore, he argues, our bodies are our one unalienable property, over which we should have total control. Also asserting the “right over one’s body,” Walter Block even equates laws against drugs to a form of “(partial) slavery”: just as slaves were denied the ownership of their bodies, today citizens are denied the ability to put what they like into their bodies. “In both cases our control over our bodies is restricted” (203).
Note that these rights’ non-enumeration does not rob them of their importance: there is no “right to life” in the Bill of Rights, yet most would argue that it is nevertheless each citizen’s (indeed, each human’s) most important right. Finally, if these rights did not exist, then why was it necessary to pass alcohol Prohibition as an amendment to the Constitution? Would not a simple bill have sufficed? Indeed, the only way they could take away non-enumerated rights was to alter the Constitution itself.
Finally, the right to drugs can be articulated from
the first amendment: This occurred in People v. Woody, where some
Native Americans argued the right to use peyote (a mild hallucinogen) for
religious purposes and won based on the first amendment’s right to “free
exercise” of religion (Brenner 166-167). The
court noted that no one was harmed by the ceremony, which was analogous
to the Christian sacrament of Communion (with peyote taking the place of
bread and wine). Imagine, for a moment, that I started a religion
in which cocaine or heroin played an integral role. As long as no
one is harmed, does Congress have any right to infringe on my free exercise
of my religion?
Some claim that other unenumerated rights that would seem to uphold drug laws. Daniel Benjamin and Roger Miller cite some prohibitionists’ arguments that “if the federal government legalized drugs, such a move would itself deprive Americans of…the choice to live in a community that is…drug free” (177). Yet this argument falls flat on its face on two accounts: first, by this token, current drug laws deprive Americans of the choice to live in a community with drugs. Secondly, the argument can be used to justify any number of bigoted, blatantly unconstitutional acts: Do Americans have the right to live in a “Jew-free” or “black-free” neighborhood?
A Reasonable Policy
Though clearly drug laws are unconstitutional, selling
all drugs like Snickers bars with no regulation whatsoever seems decidedly
unwise. It is possible to regulate drugs such that their harm can
be minimized to both drug users and society.
As a practical measure, how can this regulation be achieved? Daniel Benjamin and Roger Miller argue for what they call a “Constitutional Alternative”; that is, “that the power to control the manufacture, distribution, and consumption of all psychoactives revert to the states, under provisions identical to those of the Twenty-first Amendment” that repealed alcohol Prohibition (Benjamin and Miller 194).
Perhaps the most reasonable proposal for regulation under such an amendment is the “alcohol model”: that is, regulate drugs more or less the way alcohol is regulated today. David Boaz explains how this regulation would work:
Marijuana, cocaine, and heroin would be sold only in specially licensed stores…warning labels would be posted in the stores and the packages. It would be illegal to sell drugs to minors…it would be illegal to advertise drugs on television and possibly in print….driving under the influence of drugs would be illegal, and there would be added penalties for committing crimes under their influence. (qtd. in Ostrowski 314)Burton M. Leiser adds to the last item, noting that “forfeiture of an automobile driven under the influence would be a powerful deterrent to future offenses, and imprisonment for a second offense would be quite appropriate” (274). Some states have seriously considered adopting this policy. For example, New York State Senator Joseph L. Galiber submitted a bill in 1988, using the alcohol model, including warning labels such as:
WARNING: This drug is addictive. You may not be able to quit using it.What about using drugs on the job, or working under the influence? Again, one can use the alcohol model: “it is not illegal to use this powerful drug [i.e. alcohol] off-duty but it is a crime to drive a car or an airplane while under the influence of alcohol—or, for that matter, of a mind-altering prescription medicine, such as a tranquilizer. The test should be impairment, whatever the substance” (Trebach 130).
WARNING: This drug may cause seizures, convulsions, and death.
WARNING: If you are pregnant, this drug may cause serious birth defects in your child, including missing limbs and brain damage. (Trebach 90)
Regulation Versus Prohibition
One of the most difficult aspects of drug policy
is that prohibitionists fail to distinguish between regulation (such as
that under the alcohol model) and prohibition. They believe that
“regulation” of drugs necessarily means their outright prohibition.
These arguments often take on a utilitarian tone, as in Bonnie
Steinbock’s contention that the FDA can go beyond warning against
drugs but can also prohibit them because “most of us are willing
to sacrifice the liberty to buy useless or dangerous medications in return
for increased safety” (221). Yet why is there any less safety if
these substances are available, but only under strict regulation and with
strong warnings? Clearly, AIDS patients don’t mind the “decreased
safety” of using unapproved drugs—they are willing to jump through the
regulatory hoops, and warnings of untested side effects fail to deter them
(because they will likely die anyway).
Steinbock goes on to quote Dan Beauchamp, who claims there is nothing wrong with “reasonable, minimally intrusive restrictions that yield significant gains in the health and safety of the public” (223). But is outright prohibition a “minimally intrusive restriction”? There is a big difference between giving up some rights (regulation) for health and safety and giving up all rights to a substance (prohibition). For example, we can regulate smoking (only allow it at certain times in certain areas, and only sell cigarettes in certain places to certain people) but we cannot ban it (without seriously infringing on constitutional rights). Likewise, alcohol is regulated but not prohibited (only using alcohol where it may hurt people, such as drunk driving, is prohibited).
Indeed, Beauchamp seems to agree that regulation is the answer: “most of what we could accomplish in health and safety under [alcohol] Prohibition could be achieved through more stringent regulation of alcohol. Prohibition is something like ringing a doorbell with a cannon” (qtd. in Steinbock 234). Again, one should regulate only to decrease harm to others.
Robert Peterson counters this by arguing that
If this logic were truly followed, libertarians would seek to abolish drunk-driving laws. Why punish a drunk driver until he actually hits someone? After all, many drunks do make it home without incident. The fact is that no one has the right to intimidate and put others at unreasonable risk of harm. (345)The question is: what is “unreasonable risk”? Surely someone getting drunk in the privacy of his/her own home is not an “unreasonable risk”? What about getting stoned? Using certain drugs in public might, indeed, put others at an unreasonable risk of harm (and, certainly, driving while under the influence does so); however, drug use itself does not create that risk.
Given the utilitarian principle of harm reduction
(so long as this does not totally prohibit a substance) and the alcohol
model of drug regulation, how could this all work? First, it must
be clear that both drug purchase and use would have significant regulation.
First, it would be illegal to sell drugs without a proper license, or to sell drugs that are impure or lack proper warning labels. It would even be justified to require drug users to sign a waiver explaining that they have read and understand the consequences of taking the drugs they are buying; beyond that, even a “waiting period” (much like that for firearms) would not be out of the question. Selling drugs to minors would continue to be a strict offense.
Second, any drug use that puts others at serious risk would be illegal. This may include being intoxicated in public, operating heavy machinery, driving a car, or any other task that requires coordination in which intoxication poses a serious risk of injury to others. Employers could still fire employees for bad job performance as a result of drugs; in some high-risk jobs, even random drug tests (like those conducted by the military) would not be out of the question. Abandoning, abusing, or otherwise neglecting children or spouses while under the influence would continue to be a crime. Using drugs while pregnant could conceivably be against the law as well. Legalizing drugs does not mean giving up on drug regulation—in fact, it would allow law enforcement to focus on the real crimes that actually harm people, rather than pointless victimless crimes.
Moreover, legalizing drugs would not mean the end of the war on drug use. Drug education would continue, to inform both children and adults alike as to the dangers of various drugs. Today, such education exists in respect to both alcohol and tobacco despite their legality. Indeed, education—not drug seizures or arrests—is the most popular way to combat the drug problem (Kaplan 101).
James Inciardi, at the end
of an attack on legalization in Legalize It?, goes on to ask “is
any purpose served by further debating the legalization of drugs?”
He calls the legalization effort a “quixotic undertaking” which “serve[s]
no significant purpose in effecting change” (205). How lucky we are
that advocates for Independence in 1700, abolitionists in 1800, and civil
rights activists in 1900 were not dissuaded by similar rhetoric!
Surely their quests for liberty must have seemed just as “quixotic” then
as the drug legalization debate seems today.
Given their lack of ethical justification and constitutional backing, drug laws cannot continue in their current form. We thus have two options: Rightly dismiss drug laws as unconstitutional (regardless of what effect this may have) and pass laws that only restrict drug use (similar to those discussed above), or pass an amendment to the constitution banning now-illicit drugs.
Note: As I have not actually made my mind up on this issue, I am especially interested in hearing comments about (and refutations of) this argument. Feel free to email me at firstname.lastname@example.org
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