For Pain, Pleasure, or Caprice: Original Property and The Totalitarian Entailments of Anti-Drug Laws

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Supreme Court denied a medical necessity exemption to the Controlled
Substances Act last week in United States v. Oakland Cannabis
Buyers' Cooperative. I have examined this decision in another
. What I wish to do here is examine the assumptions and
implications underlying the Controlled Substances Act and its ilk.

of medical marijuana is a flagrant consequence of drug prohibition
in general. In their imperious fanaticism, the drug warriors will
condemn a victim of cancer to periodic suffering. (William
Bennett recently disdained medical marijuana initiatives as "little
more than thinly veiled legalization efforts."
Such is
the icy compassion of puritans.)

his classic For
a New Liberty
, Murray Rothbard refers to the "totalitarian
cage" imposed by "Pappa Government" that guts freedom
of choice, writing in the context of drug prohibitions:

against cigarettes [or marijuana] as much as you want, but leave
the individual free to run his own life. Otherwise, we may as
well outlaw all sorts of possible carcinogenic agents – including
tight shoes, improperly fitting false teeth, excessive exposure
to the sun, as well as excessive intake of ice cream, eggs, and
butter which might lead to heart disease. And, if such prohibitions
prove unenforceable, again the logic is to place people in cages
so that they will receive the proper amount of sun, the correct
diet, properly fitting shoes, and so on.

their root, then, anti-drug laws are deprivations of our paramount
self-ownership. (See Thomas Szasz, "Drugs as Property: The
Right We Rejected," in Our
Right to Drugs: The Case for a Free Market

several opponents of the War on Drugs fail to ground their critique
on this fundamental fact, instead making instrumental arguments.
"The drug war can't be won," they say, "so we should
end it."

War on Drugs has been unsuccessful, but this obscures the
larger point that the War on Drugs should not be successful.
It is inherently illegitimate as much as it is instrumentally pitiful
– a counter-constitutional, systematic offensive against freedom.

the authority-thirsty creature that is the State trespasses upon
the self-ownership of drug users, it has issued a declaration of
war against liberty to a totalitarian extent – totalitarian
because the power to criminalize a non-aggressive recreation entails
the power to criminalize anything. David Conway explains:

governments are given the authority to restrict the liberty of
some sane adults for what it considers their physical or moral
welfare, there is no principled stopping point in terms of what
governments will have the authority to prohibit. The consequence
will be that virtually anything which anyone holds of most value
may become prohibited to them on grounds of its being judged immoral
or dangerous to them. There are practically no forms of activity
in which sane adults like to engage that others are not able to
find reasons to condemn as morally or physically bad for those
who engage in them. This ranges from drinking alcohol and smoking
tobacco, to eating certain types of food, to not taking exercise,
to taking too much, engaging in dangerous sports, practising certain
religions, not practising any religion, reading books on science,
etc. Unless government draws the line at only prohibiting conduct
that harms others against their will, no member of society
can be secure in being able to do or have anything they most want
and value. [emphasis added] (Classical
Liberalism: The Unvanquished Ideal
, p. 19)

suffering terminal illnesses have a salient justification for using
narcotics, and those who would bar their alleviation are contemptible.
Ultimately, though, freedom isn't about needing a good reason. Whether
to numb pain, seek pleasure, or fulfill a caprice, drug consumption
is a property right of the most intimate order; and policies that
impede this fundamental autonomy are expropriative vulgarities.

Communist Manifesto
referred to "despotic inroads on
the rights of property." James Madison wrote that man "has
a property very dear to him in the safety and liberty of his person."
For a Madisonian country, our current approach to drugs is positively

25, 2001

Kantor [send him mail]
and lives in Boynton Beach, Florida

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