Friday, October 1, 2010

Standing the Consequences

     Two weeks ago, the Substance Abuse and Mental Health Services Administration released its report on American drug abuse in 2009.  The study, titled Results from the 2009 National Survey on Drug Use and Health, reports significant increases in illicit drug use.  For example, the study found 16.7 million people age 12 and over used marijuana within the month preceding the survey (the so-called “past month” figure).  That is the highest level of use reported by the National Survey since at least 2002.  The level remains significantly lower than rates reported in the 1970s, before the dramatic declines that resulted from the 1980s War on Drugs.  With marijuana legalization on the ballot this fall in California, the usual background noise about a purported individual right to abuse drugs is turning into a clamor.  Such measures may be defeated by heroic advocacy highlighting the medical and social costs of drug abuse.  However, the arguments from those in favor of legalization could easily prevail because of the special susceptibility of western democracies to an abuse of enlightenment ideals:  the doctrine of radical individualism.

     Fundamentally, Americans have trouble defending against claims of individual right.  Those who favor legalization of marijuana, like those who favor legalization of prostitution and other so-called “private vices,” argue from a position that at first appears impeccable to American eyes.  Almost all people in this country will easily take the first several steps down the road toward radical individualism.  The typical cross-examination might go like this:

     “Isn’t it true that our Constitution guarantees the right to live your life the way you see fit, as long as you don’t hurt anyone else?”

     “Of course.”

     “In fact, as long as you don’t hurt anyone else, you can do your own thing, right?”


     “And isn’t it true that you can do your own thing even if some other people don’t approve?”


     “As long as you are an adult, you can also do your own thing even if it’s bad for you, correct?”


     From here, it is a short step to the end of the trail, because once we’ve accepted in the abstract that the Constitution guarantees every adult the right to be unhealthy and self-destructive it’s almost impossible to argue against legalizing marijuana.  All the data on health effects are already put outside the discussion since we’ve established that you have a right to be unhealthy if you want to.  Even a first-year law student could close the logic loop (and the rhetorical noose):

     “So, isn’t it true that nobody should be able to say you can’t smoke marijuana in the privacy of your own home?”

     “I guess that’s right.”

     It is instructive to note how many people seem to fall for this line of advocacy.  Different polls give different results, but Reuters reported in its article on the California marijuana law (linked above) that forty-four percent of Americans favor legalization.  Hedonism has conquered much of the national psyche, but it is hardly likely that forty-four percent of Americans favor legalization out of a desire themselves to partake of cannabis.  Even today, it is still more likely that most of those who favor legalization have been convinced by something like the line of questions above.  Given our history, perhaps that should not be surprising.

     The American experiment derived a great deal from Enlightenment philosophy.  If the traditional rights of Englishmen provided the context for articulating the offenses of George III against the colonists, the language of the Declaration owed much to the Enlightenment philosophers.  “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  Earlier phrasings of this assertion had included property as a right, and the American Constitution eventually guaranteed, in the Fifth and Fourteenth Amendments, that government could not deprive citizens of life, liberty, or property without due process of law.  Still, the pursuit of happiness is part of the American political catechism.  While the Founding Fathers did not mean to safeguard private vice, it is easy to see how modern advocates have borrowed the illustrious tricolon to defend the most self-indulgent conduct.

     Along the way from Philadelphia in 1776 to California in 2010, the notion that private vice should be considered a right received some invaluable support from John Stuart Mill.  The English philosopher is justly revered.  His work was crucial to defining the old, classical “liberal” who was in favor of limited government and free markets.  Still, some of his work is particularly liable to abuse, as for instance thoughts like the following:  “[W]hen a person’s conduct affects the interests of no persons besides himself…there should be perfect freedom, legal and social, to do the action and stand the consequences.”  Mill did not mean this to be taken as license for people to act irresponsibly, but, taken out of context, it is perfect fuel for radical individualists.  What’s worse, when Mill wrote On Liberty, there was nothing in England like the current spread of generous public supports to private life.  Even in this country, we now have social protections far more generous than anything Mill would have had in mind in 1859.  This expansion of government aid carries with it a fundamental change of condition sufficient to alter the force of Mill’s central point about consequences.

     For today, we don’t so much stand the consequences of our bad decisions.  We are protected from our own foolishness by repeated extensions of unemployment benefits, aid to unwed mothers, social security, and the rest of society’s guarantees.  Of course, these protections are sadly imperfect, and inevitably some people still slip through the safety nets.  But for more and more Americans, there is pretty good insulation between the actions we take (or omit) and the consequences of those actions.  Everyone wants such insulation, of course.  But when people are protected from the consequences of their bad decisions, they naturally take less care in making decisions.  The resulting moral hazard creates a financial interest on the part of society in guiding private conduct.

     Our courts have sorted all this out in a series of cases that purport to balance the interests of society against the freedom of the individual citizen to do as he pleases.  There have been cases exploring economic rights, such as the right of a farmer to grow and consume his own wheat on his own farm.  The Supreme Court held at the time that his right to do so was subordinate to the federal government’s interest in overseeing interstate commerce.  (If you’re interested, the case was Wickard v. Filburn, 317 U.S. 111 (1942).)  There have also been cases with different analyses in reproductive rights, free speech, and religion.  So far, no one has found in the Constitution a right to smoke marijuana, but who can say how long the judges will restrain themselves.  One way to bolster judicial restraint might be to articulate how the new entitlement paradigm changes the old calculus of liberty.

     In the modern welfare state, individual rights are not just costless guarantees of government.  In the old days, for instance, the government could easily guarantee freedom of worship at little or no financial cost.  Whether citizens believe one way or another is, on its face, fiscally neutral.  Thus, the only costs associated with the free exercise of religion were limited to rare and essentially trivial compliance costs (like policing unpopular religious demonstrations).  On the other hand, when individual rights become essentially market commodities (like, say, health care), the government is on the hook to protect the right by providing the commodity itself.  The “right” becomes a call on the resources of society; it becomes an entitlement.  Because they are entitlements, modern welfare rights instantly impose costs on government that dwarf all the expense of guaranteeing traditional political rights.

     In this environment, the choice of a citizen to forego a productive life and waste his days and nights with drug abuse will cost the taxpayers money.  Fair enough, not every pot smoker is an economic parasite, but legalization would make sure that no potential drone would be denied his or her fix.  Honest assessment cannot predict that we will have a more dutiful, more self-reliant population on the whole if marijuana is legalized.  And to the extent the perpetually high are less likely to support themselves, the state has a legitimate interest in discouraging their indulgence. We simply cannot afford radical individualism.

     Interestingly, many people who approve of legalizing marijuana don’t want to legalize “the hard drugs.”  Why not?  To be intellectually honest and consistent with the reductio ad absurdum argument from radical individualism, we should all be free to wreck our lives if we want to.  But the population still retains an instinct about the degree of harm we may cause ourselves before we become a burden on society.  The danger is that either judicial activism or the rapid erosion of moral standards will overcome this healthy instinct.

     While we Americans have been transfixed by our rights for at least two generations now, we would do better to turn our attention toward our obligations.  Moral standards properly describe duties to our fellows and ourselves.  All societies impose duties on their members, the first of which is generally to do no harm to others.  The first duty that is unique to free societies is self-sufficiency.  The more a man takes care of himself the less his neighbors have to care for him.  When the burden of that care includes high costs like lifetime welfare, the importance of self-reliance is heightened.  The state may—indeed, must—take action to discourage self-destructive behavior despite the overall paradigm of liberty.  After all, a government-subsidized parasitism is not liberty.  It is merely license.


  1. "So far, no one has found in the Constitution a right to smoke marijuana, "

    I guess you have never read the 9th and 10th Amendments. But actually, we don't have to find the right in the Constitution. YOU have to find the ability of the government to restrict marijuana. It isn't there, unless you stretch the Commerce Clause to the point where it means nothing or everything. The Constitution isn't about giving rights, it is about restricting the government.

  2. So nice to see you don't have the guts to allow unmoderated comments.

  3. Well, let's talk about the Ninth and Tenth Amendments. Here's what they say:

    Ninth: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

    Tenth: "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."

    When these were signed, the intent was to safeguard existing rights and powers among the States, some of which didn't make the cut at the federal level. It certainly wasn't to guarantee that whatever someone can think up in the future is automatically protected. If that had been the intent, the Ninth would have said, for instance, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others that judges may discover in the future."

    On moderated comments: Thanks for making my point.