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America is not the land of the Greatest Common Divisor

Over at the Reality Based Community, Mark Kleiman makes his case for his own version of legalized cannabis: Against commercial cannabis

In the cannabis front, my plea is for a “grow-your-own” policy: consumers would be allowed to cultivate pot for their own use, to give it away, or to join small consumer-owned co-ops to produce the stuff for them. No commercial sales.

“Why not?” demanded several outraged commenters. Why allow use but not sale?

Two words provide the gist of the answer: marketing and lobbying. A legal cannabis industry, like the legal beer industry, the legal tobacco industry, the legal fast-food and junk-food industries, and the legal gambling industry, would do everything in its power to expand its sales, including taking political action to weaken whatever regulations and minimize whatever taxes were imposed.

Well, again, why not? What’s wrong with persuading someone to engage in what would be a perfectly lawful behavior?

Nothing, if the behavior is harmless as well as lawful. Everything, if the behavior predictably inflicts harm on the person being persuaded.

But cannabis use (like drinking, eating, and gambling) is harmless to most of the people who engage in it. Is it wrong to suggest that someone start a potentially benign activity simply because it might turn into a bad habit?

Might. “Aye, there’s the rub.” To the consumer, developing a bad habit is bad news. To the marketing executive, it’s the whole point of the exercise.

The commenters there have addressed this argument somewhat, but there are some important points that I believe need to be made.

The whole concept behind this paternalistic and nanny-statist argument is that, because some individuals might not be able to handle a free market system, everyone should be kept from participating in a free market system.

It is an argument that says that we should decide things based on what is often erroneously referred to as the “least common denominator” (when what people really mean is the greatest common divisor). In other words, the idea is that policy for everyone should be based on that which is best for the least capable.

It’s a philosophy that says that fast food places should not be allowed to serve bacon, because some people can’t control their appetites and may end up with heart disease. Sure, you can have bacon at home as long as you’re not an abuser, but no more bacon cheeseburgers at Wendy’s for any of us, even if we’re in good health and eat them responsibly. (In fact, it sounds above like Mark Kleiman might support such a move.)

It’s the belief that the internet should only contain material that isn’t “harmful to minors.” (Fortunately, our First Amendment has prevented that kind of odious suppression of speech.)

We are not a Greatest Common Divisor country. It really goes against everything about us. We are a country of diverse ideas, diverse options, diverse freedoms. And that means that we need responsibility, not uniformity.

Mark Kleiman notes that only a small portion of marijuana users have a problem with over-use and even then, it’s for a relatively short time, yet the idea of a free market system with marketing, he says “fills me with fear.”

Fine. Get over it. If you’re worried about the portion of those who cannot handle the seductive marketing and will fall victim to pot advertising, then let’s use our resources and ingenuity to help those individuals who abuse. But we don’t dramatically restrict the options of everyone else in some kind of desperate attempt to prevent a few from making mistakes. That, in fact, is what prohibition is all about.

We are the country that proudly proclaimed

“Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”

Not “Some of you may just be here to make anchor babies, so we’re not going to count your children born here.”

We are not a Greatest Common Divisor country.

But wait, you may say — what’s wrong with a grow-your-own policy? You can still have pot legally.

Lagavulin 16 neat. Tanqueray and Tonic. Cu-Avana, Robusto. Kalamata olives.

In a brew-your-own world, I could probably make a beer of some kind (or find a neighbor who could). But where would I get a quality single-malt aged scotch that had been influenced by the peat in Islay? In a grow-your-own world, I might be able to achieve a usable tobacco for a cigarette, but the mildness of a Dominican cigar made by experts for generations? Unlikely. In a grow-your-own produce world, I might be able to come up with some green beans and tomatoes, but Kalamata olives? No way.

In a legal Cannabis regime, I should be able to get the Cannabis version of Lagavulin 16, not just Schlitz. That requires a market. And I shouldn’t be prevented from doing that because Mark fears that some people will succumb to the advertising and get stoned on Pete’s couch.

There’s one additional challenge to this fear of the free market that I’d like to mention.

We don’t know that it really would produce the results that Kleiman fears. First of all, it is possible to regulate commercial advertising. Second, those who are likely to have problems with abusing drugs are likely to find them regardless of the marketing. Third, any advertising that promotes marijuana is likely to end up getting some people to consume pot rather than some more harmful drug.

For sure, what we don’t want is to dumb down this country to the level of those least able to participate responsibly. Nor to give that power to paternalists.

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13 comments to America is not the land of the Greatest Common Divisor

  • claygooding

    I posted this at another site yesterday and since I try to post all sides to this issue,I post the pro,the con and this one I call the dream side of the issue.

  • Duncan

    Why not just say no to advertising? I can argue a compelling State interest because advertising would lead to addiction. How does the commercial speech part of the 1st Amendment work? I know it used to be doctors and lawyers couldn’t advertise their services and that changed pretty abruptly but I can’t recall the reasoning. Tobacco can’t use video in their advertising, and pharmaceutical companies are required to use half of their ad to list all the potential side effects, and that’s using one of those people that has the unusual talent of saying a lot of words fast but still intelligible. So I don’t think it far fetched to conclude that commercial concerns don’t have unfettered 1st Amendment protection.

    I must say that Prop 19 is beating into me the meaning of the old chestnut that politics make strange bedfellows.

  • Paul

    In fairness to Kleiman, if his proposal was on the ballot I would happily vote for it. Personally, I would prefer to see MJ regulated like wine and beer in California–available at the store with ID to over 18 or over 21, no big deal. Unleash the market and let it drive out the criminals, improve the quality of the product, and bring down prices.

    But I don’t want to let the perfect drive out the good. I’ll vote for this prop 19 even though it is imperfect. At this point, I just don’t care much about the details. Let’s just win.

    A victory in California will have wide ranging effects. It will give heart to our allies and dismay our opponents. Other states could follow suit, and Mexico will have to seriously wonder why they are fighting this bloody drug war to prevent MJ from crossing the border into California, where it is legal.

    A victory this November could be the Berlin Wall moment that breaks the back of the drug war once and for all.

    So everyone, please, put aside your differences and vote for prop 19. A win this election day would work wonders, and we can always adjust the law at some future date.

    • Paul — I agree fully. If Mark Kleiman’s proposal was the one on the ballot, I would be pushing for people to vote for it. A dramatic improvement over the current prohibition model.

      However, Mark has indicated that he hopes Proposition 19 will fail, in large part because it isn’t this proposal. And that I don’t consider reasonable.

  • Ian

    I’m impressed that marketers command such fear. There is nothing that marketers can do for cannabis that musicians, artists and writers going back decades haven’t already done.

    Most advertising would probably be about competing for customers. That’s the case with medical MJ in California; dispensaries advertise their deals on the back pages of alternative weeklies, but they don’t try to convince anyone to start. Nor do I think beer commercials are responsible for initiating new drinkers (maybe at the margin, but I suspect the effect is dwarfed by the influence friends and family).

  • ezrydn

    Does Mark have this same problem figuring out which side of the TP to use? Some are fence setters. Mark’s seemingly a fence growth.

  • Scott

    Brilliant post, Pete.

    Sadly, too many people do not understand how liberty is defined in the United States, including too many public servants (even including supreme court justices).

    If you take the time to study liberty as defined in the U.S. Declaration of Independence, and learn the ninth amendment in our Bill of Rights legally protecting that definition (though unethically suppressed in court), you will learn that our nation is obligated to meet a serious challenge yet to be met.

    Liberty is self-evidently a naturally-given and unalienable right by law.

    Without exception, the only limit against that right is the right itself.

    Alcohol Prohibition was never truly authorized, because the people who drink alcohol without infringing upon another person’s rights have the unalienable right to do so.

    Our nation has been tragically misguided away from “true liberty”, because too many people do not understand the tragedy resulting from that abandonment. True liberty is the power of the minority. It transcends the abuse of power.

    Ironically, too many people allow true liberty to be cast aside generally to prevent tragedy.

    Drunk driving is a perfect example.

    Anyone with their head on straight understands that driving drunk is idiotic.

    However, the act of drunk driving alone does not infringe upon another person’s rights (people can drive drunk without hurting anyone). The act increases the risk of such infringement.

    Recreational marijuana is illegal, because it has a “high potential for abuse”, according to the Controlled Substances Act. In other words, our public servants have concluded that marijuana use is too risky.

    Preventing tragedy (a.k.a. securing individual rights) is understandable and obviously encouraged, but there are legal limits to what can be done in our nation due to how liberty is defined here.

    Society’s goal is not to oppose tragedy in part, but overall tragedy.

    A law may prevent a part of overall tragedy in society, but to then believe that overall tragedy is reduced by that law (or any number of them) is baseless.

    While drunk driving instances have declined (noting one could argue the reason for such decline is education and not the law against the act), overall tragedy has not necessarily been reduced.

    People in power can (and do) abuse the law. The result then is a shift in tragedy from the victims of ‘driving abuse’ to victims of ‘law abuse’.

    I hope and work for a true-liberty-centric America to combat the overwhelming abuse of our legal system.

    Continuously educating American about how liberty is defined here is the starting point.

  • “Some adults will spend their money foolishly, but it is not the purpose of the federal [or any other] government to prevent them legally from doing it.” – Barney Frank, speaking about online gambling!

  • kaptinemo

    “Quis custodiet ipsos custodes?” “Who shall guard the guardians?”

    In a similar vein, who shall control the control-freaks? Especially when they’re the self-appointed morals proctor types?

    The damage such people have done to this society as a whole is a matter of historical record. Carrie Nation and Billy Sunday inevitably led to Al Capone and “Lucky”Luciano. All because some people felt they really were their ‘brother’s keepers’…when their ‘brethren’ neither wanted nor needed their ‘ministrations’.

    Enough of these busybodies! If their own lives are so boring that they feel the need to manage the lives of others, then they need some kind of counseling, not seek to impose their beliefs (and prejudices) on their fellow citizens!

    And as for ‘paternalism’, well, the proper term is elitism to describe the mental processes of those that engage in this kind of thinking. This was the thrust of Professor Whitebread’s seminal work on drug prohibition, that substance prohibitions are always used to enact the prejudices of an indentifiable US against an indentifiable THEM.

    And when the prejudices enabled by the US are confronted by the THEM, invariably a means is sought by the US group to intellectually excuse the inexcusable, and defend the morally indefensible.

    History does not (and will not) remember such kindly, and for good reason.

  • Paul

    Kaptinemo,

    Busybodies are quite a bit more dangerous than most people imagine. The problem with the busybodies is that they want, with all their heart, to mind your business. So they spend all their energy getting themselves heard and getting into power, while normal, sane folks want nothing to do with power. This means that while busybodies and power hungry sociopaths perhaps only make up 1% of the population, they make up 80% of elected officials and unelected, policy setting bureaucrats.

    This has been the natural state of civilization since man invented agriculture, and the only solution is periodic, bloody revolution or to keep moving away from them, out of their reach. That’s the story of America, which went pretty well until we filled up all our space and grew our own batch of busybodies–the very people who now occupy all the seats of power in our country.

    Alas, the world has grown very small, and we’re out of places to run to. The ruling classes sense victory, and are even now tightening the screws on policies and technologies they hope will control everyone, now and forever. National (and eventually international) ID cards, ubiquitous cameras, huge police forces and an infinite variety of nit-picky laws and regulations to control and regulate every aspect of everyone’s lives are both their tools and their goals.

    Perhaps the people who most wish to be left alone will finally turn and fight, like cornered animals with nowhere left to run. We may yet be surprised. The only options people have now are to somehow put the busybodies in their place or submit to their rule. There will be no place left to go until we can either reach the stars or escape into cyberspace.

  • Robert D. Reed

    I’m reading an awful lot of high dudgeon and hyperbole over what’s essentially a quite moderate and reasonable proposal.

    Regulating or banning a commercial market in a given product is not tantamount to totalitarianism- particularly in the case of cannabis.

    Marijuana is not equivalent to cigar tobacco, or single-malt scotch. It’s much, much easier to cultivate informally in small quantities, using seeds and cuttings from a wide variety of heirloom strains.

    Furthermore, I have three quite practical reservations about the pro-commercial legalization position:

    1) the assumption that the commercial marketing in California legalization initiatives provision won’t adversely affect the upcoming November vote, which the advocates seem to assume is on track for victory.

    I’m not nearly so assured. I think the legalization measures are quite liable to lose (note: I’m a long-time resident of Northern California). And I’m of the opinion that if they do lose, it will be on account of the commercial market provisions. I think they’re likely too ambitious, and that could be a deal-breaker- on a measure that would otherwise win clear majority support.

    2) I’m not at all confident that commercial legalization will lead ineluctably to the Free Market Connoseieur Utopia prophesized by the more starry-eyed among the proponents.

    Instead, I think it’s far more likely that corporate interests could gain monopoly power franchise, subject to the power interests of the State. This might even be granted in association with a continued ban on home or informal cultivation, for that matter.

    There’s a further irony in the fact that it’s possible to home cultivate all sorts of high-grade strains of cannabis for a quite small investment- easily enough to supply not only oneself but a circle of immediate friends and family. Conversely, the existence of a commercial market will virtually mandate a continuation of the long-time status quo of adsurdly high prices for cannabis.

    I don’t really view a price drop from $400/oz to $100/oz, or even $50/oz, as much of a victory for the consumer, in this case. The stuff ought to be as cheap as tomatoes.

    3) The case for legalizing home cultivation is much more simply and easily defensible in law courts than the case for full-scale commerical legalization. In the case of a victory for any legalization measure, it’s obvious that the Feds are going to immediately enjoin and suppress the decision of any lower jurisdiction. The cases are bound to be argued in court. And it’s much, much easier to make the case that a non-invasive, non-ecologically harmful annual natural plant can be cultivated as a natural right, than to attempt to argue for the Constitutional right to provide for a commercial market.

    Mark my words.

    Finally, I’m not impressed by the resort to the high-flown rhetoric exalting Individual Liberty and deploring the increasing transgressions of the State, over what’s essentially a supplementary point in comparison to the wider goal of simply ending the legal oppressions of widespread criminalization. The only advantages of a commercial market over legalization of non-commercial home cultivation would be the hypothetical instant access via the retail market to a wider variety of strains of cannabis for consumers; and the loss of a profit opportunity to those seeking to cash in on the newly opened market in cannabis. And given that fact, when all of the idealistic rhetoric is unpacked, what results isn’t a whole lot different than the arguments used by the purveyors and buyers on the endangered species market. I think it’s more ethically defensible to provide for commercial drug markets than it is to drive species to extinction in the name of the Free Market and affluent buyer entitlement. But the advocates for both markets do presently strike me as being driven more by their own private materialistic ends than by wider or more long-term concerns.

    Mark Kleiman has quite a history of serving as somewhat of a popular whipping boy on this site. But as someone who’s read his work for many years, at this point he seems to have moderated his position to make it significantly more liberal on this issue. Thus far, I haven’t seen him get credit for that. I’d like to give him some, myself.

    My own position is that non-commercial legalization is the most prudent and practical next step. Nothing about it takes commercial legalization off of the table forever. The incremental approach would allow the skeptics to become acquainted with fact that the presence of cannabis as a legitimate facet of society won’t be nearly as malign as they presently imagine it to be. And that legitimation will happen much more quickly under a simple program of home cultivation and possession legalization than it will via the passage of a full-scale legalization initiative. As I’ve mentioned, in the event of victory, the legal and regulatory challenges alone are going to open a staggeringly large can of worms that could last decades- with no assurance that the vaunted idealistic goals of Liberty would ultimately prevail, in point of fact.

    • Robert – nice try. If you’d care to write again under your real identity, I’d be happy to respond, in detail. but on close reading of your post, it appears to me that you’re someone who stands to lose financially in a free market.

      The fact is, you’re asking that legalization be postponed (either by waiting for the right bill, or by defeating this one) so that your partial legalization can be implemented at some time in the future.

      We can’t afford that. We need legalization now, so we get rid of the profiteers who feed off the blood of those dying in this obscene drug war.

      If you’re not willing to be part of that then the blood is on your hands.

  • Robert D. Reed

    Your insinuation is unwarranted. I am writing under my real identity. Your website should have my email- PM me.

    Nowhere in my post did I mention opposing the present California ballot propositions on cannabis legalization. I intend to vote for them.

    My points remain. I don’t like sounding like a concern troll, but I do think that a ballot initiative that left out the step of commercial legalization would be easier to argue for, and would obtain more voter support, than the ballot measures presently put forth for November 2010.

    Now that they’re on the ballot, I’d like to see a victory for the ballot proposals- but I anticipate that the victory will be entirely symbolic, due to the prospective tangle of legal snarls than will inevitably ensue in the event of passage.

    A related note: I think that the present mood of the drug reformers these days is infused with overconfidence. It behooves us to shore up our flanks, and make our arguments as logically bulletproof and irrefutable as possible. I’ve been an observer- and an intermittent participant- in this game for a long time. I have no interest in premature celebrations of victory. The incremental gains that have already been made- at least in states like California- are substantial and palpable. They’re also subject to reversal, if the drug warriors are able to use their overwhelming control of news and popular entertainment media to promote a backlash.

    Part of what prompts me to issue this warning is my recent random viewing of various TV/”antiterrorist” crime dramas. The Drugwar propaganda effort on these shows- and the overall emphasis on villainy associated with illegal drug use- exceeds anything I’ve seen previously in popular media in my lifetime. I have no doubt that it’s overly influencing the discourse in unrealistic ways. It’s difficult to contend with a power imbalance like that. But it has to be done. And in that regard, I don’t think it helps to get cocky with conjectures of impending victory. That leads to sloppiness, and slacking off.