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Liberty Lost

A little Sunday reading for you:

Liberty Lost: The Moral Case for Marijuana Law Reform
by Eric D. Blumenson (Suffolk University Law School) and
(Eva S. Nilsen) Boston University School of Law.
Suffolk University Law School Research Paper No. 09-20.
Indiana Law Journal, Vol. 85, 2009

(Note: If you have trouble downloading the paper there, it’s available here.)

In this essay, we present a civil libertarian case for repealing marijuana possession crimes. We put forward two arguments, corresponding to the two distinct liberty concerns implicated by laws that both ban marijuana use and punish its users. The first argument opposes criminalization, demonstrating that marijuana use does not constitute the kind of wrongful conduct that is a prerequisite for just punishment. The second argument demonstrates that even in the absence of criminal penalties, prohibition of marijuana use violates a moral right to exercise autonomy in personal matters – a corollary to Mill’s harm principle in the utilitarian tradition, or, in the non-consequentialist tradition, to the respect for personhood that was well described by the Supreme Court in its recent Lawrence v. Texas opinion. Both arguments are based on principles of justice that are uncontroversial in other contexts.

The arguments used in this paper are not ones that you could likely use in a courtroom today (even the Supreme courtroom) because drug war precedent has too far warped the concept of liberty, yet it is important to have discussions like this to remind us of the roots of liberty in this country, and how the drug laws have damaged them (and to give us something to strive for).

The authors point out that most discussions about marijuana laws revolve around pragmatic terms.

Such debates are crucial elements in any examination of marijuana law and policy, but they ignore the deeper level of justification that may be required by restraints on individual liberty, of which marijuana criminalization is arguably an instance. Restraints on religious practice, for example, cannot properly be evaluated by merely calculating the utilitarian costs and benefits; something of greater moral weight is required to override the fundamental right to free exercise of religion. A key threshold issue regarding the prohibition and criminalization of marijuana use is whether such laws implicate fundamental individual rights, and if so what kind of grounds are required to justify doing so.

In this essay, we argue that these laws do unjustifiably infringe fundamental moral rights. We present a non-consequentialist, civil libertarian case against marijuana prohibition and criminalization, based on the requirements of liberty and just punishment.

The essay takes some inspiration from the Supreme Court decision in Lawrence, which struck down a law criminalizing homosexual sex. The Court’s words in that case ring true in other areas as well…

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. . . Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. ….At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. . . .The petitioners are entitled to respect for their private lives.

The authors even address the basics from the Declaration of Independence.

There is also a more quotidian moral right, perhaps less exalted but no less important, which is recognized in the Declaration of Independence as “the pursuit of happiness.” This right should protect those who seek affective rather than cognitive benefits from marijuana – users for whom it serves as a relaxant, a social lubricant, an anti-depressant, or a palliative.50 The right to pursue happiness in one’s own way is worthy of respect, and we disdain countries like Iran partly because they do not respect it. There, certain music and dress is deemed decadent and banned. Here, the default position is that people should be free to pursue their individual and idiosyncratic tastes in recreation, even risky ones like boxing and mountain climbing. Only in a few cases does the majority presume to control the personal pleasures of a minority; marijuana is one of them. (That marijuana use often takes place in the privacy of one’s home greatly compounds the violation.)

A very interesting read (and a nice diversion from the daily slogging through the drug war). The authors specifically chose not to apply their argument to other drugs, but certainly much of their points could easily extend beyond marijuana.

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15 comments to Liberty Lost

  • Pete says:

    The arguments used in this paper are not ones that you could likely use in a courtroom today (even the Supreme courtroom) because drug war precedent has too far warped the concept of liberty, yet it is important to have discussions like this to remind us of the roots of liberty in this country, and how the drug laws have damaged them (and to give us something to strive for).

    Sad isn’t it? Especially when that is exactly the argument that needs to go before the Supreme Court. This whole charade is designed to avoid and deflect that fundamental discussion… but one we need to continue to redirect towards and continue to keep alive for now at least amongst ourselves.

    I hope you all have hard hats… there’s bricks falling everywhere.

    Contrast Pete’s coverage of Liberty Lost w/ Legalizing marijuana is bad for California in today’s SF Chronicle. OMG… are these folks serious? They’re throwing their best shots and they are like a BB gun against a 45. No contest. Part of me wants to feel bad for such intellectually bankrupt charlatans, but… nah. I’d rather wield an old Chumash curse their way.

    Thud!

  • it truly is a shame that so many people continue to champion liberty for self-interest to the detriment of true liberty. that they specifically chose to not apply the same logic to the other recreational drugs people like to use is a symptom of the deep myopia characterizing the overall drug use debate.

    liberty is for everyone — and is not something to be doled out piecemeal only to preferred others.

  • lawn darts

    Do our bodies belong to us or are they the property of the state? Has it really become a Mussolini wet dream in the US, everything for the state, nothing outside the state, no one against the state. Urine testing was the camel nose under the tent. It was under Ronnie Raygun that testing took off shortly after a train engineer in Maryland caused a collision and derailment while drunk and stoned on duty. The rule of law and liberty either applies to all or it applies to none, there is no middle.

  • aye b… it’s not a far step to take and the principles are ALL the same. And as others have long pointed out, the “other” drugs usually aren’t that pleasant, have drawbacks that make their use questionable for many and they will never be that popular. A proper educational campaign would probably have more people using coca leaves (for tea as an example) than cocaine. More people growing poppies and harvesting raw opium rather (again for tea) than using heroeen or developing that smokey opium den thing. And then, even if they did…?

    Just as all people shouldn’t smoke pot, there are folks who should never drive a car. And of course… there are people who should never hold public office.

  • Just me.

    Thud, Thud….

  • […] Lost Liberty Lost DrugWarRant / Pete Guither / 08,22,2010 A little Sunday reading for you: Liberty Lost: The Moral […]

  • Bruce

    Economonebulous reversing of the adversarial clashing of keyswords in the acrimonious etherial periphery is in order. Unambiguallly eliminating drug tests in favored. Abstinence tests and thudding for uncovered abstinence persued vigorously with the highest hempoplasma intern doctorate coin flippees given the Nerf bat for the stadium televised pomped and ceremonied joyous prolonged thudding.

  • Cliff

    “Urine testing was the camel nose under the tent. It was under Ronnie Raygun that testing took off shortly after a train engineer in Maryland caused a collision and derailment while drunk and stoned on duty.”

    I remember an interview with one of the engineers who said that they smoked cannabis every day, but the day of the crash, they also consumed alcohol and that was why they couldn’t react fast enough to avoid the accident.

    IIRC, there was also an aircraft carrier accident in which a plane crashed while landing and killed some people who had THC metabolytes in thier system (the flight deck personel). The pilot had antihistamines in his system. Right after that the military began thier urine testing in earnest even though people die during military training, with or without drug metabolytes in thier systems.

  • Cliff

    “Do our bodies belong to us or are they the property of the state?”

    If you are peeing in a cup, on demand, for your daily bread, you might as well be a slave.

  • Ed Dunkle

    I would love to see the Supreme Court drug tested. Isn’t it vital to our national security that its members be drug free?

  • Windy

    I have often used the Right to Liberty, as outlined in the Declaration, as an argument against the War on Drug(user)s, and just as often wondered why no one ever uses that argument in court when faced with trial on a WoD law. Seems to me to be the most pertinent, the most important, argument of all.

  • Nz

    we disdain countries like Iran partly because they do not respect it.

    The chances are this article will not help to change draconian U.S. prohibition, but thanks to that little pointer, it will convince more Americans that we should bomb Iran back to the stone age.

    Fuck you neoconic decievers!

  • Duncan

    I think a better idea is to require those who sit on the SCOTUS to be saturated with cannabinoids.

  • To BrianBennett

    “it truly is a shame that so many people continue to champion liberty for self-interest to the detriment of true liberty.”

    Kind of like those greedy marijuana growers and dispensary owners against legalization for all users.

  • Uh, this kind of got off topic on a general three minute hate on mj prohibition (I know, justified), but back to this article, it is a wonderful exposition in the traditional legal scholarship format, that both marijuana prohibition itself and punishment of users are not justified by traditional (and Constitutional) norms or the principles of freedom our Constitution and laws are based on.

    And there is a model for this “fresh look”, back to basics approach where the high courts disavow a ruling made fairly recently (i.e., it’s OK for a state to have criminal laws against sodomy, which a majority of people in Texas think is immoral) based on other principles (no law enforcement in bedrooms, personal freedom, autonomy).

    Pete, thanks for posting this. I would recommend this article be added to the permanent sidebar for resources on the site, along with the “Why is Marijuana Illegal” things…it’s good stuff and best of all succinct and like all law review articles, extensively documented with footnotes that run longer than the article.

    The late Peter Williams, may he rest in peace, took over 800 pages to try to say the same things in his book “Ain’t no one’s Business but My Own”. This article neatly lays the same line of argument out in 20 short pages (especially if you read only the text and skip diving into the footnotes).