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

The 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 column. What I wish to do here is examine the assumptions and implications underlying the Controlled Substances Act and its ilk.

Prohibition 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.)

In 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:

Propagandize 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.

At 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.)

Unfortunately, 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."

The 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.

When 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:

Once 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)

Individuals 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.

The 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 Marxian.

May 25, 2001

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