Wednesday, February 4, 2009

Michael Phelps & Unconstitutional Prohibition on Marijuana

The news that Michael Phelps has been outed for hitting a bong at a party raises a couple issues about current laws prohibiting marijuana: they are (1) bad policy; and (2) unconstitutional.

First, state and federal laws criminalizing the use and possession of marijuana are atrocious policy for at least three reasons: (a) the massive costs imposed on lives and public treasuries; (b) low efficacy - i.e, the laws do little to dissuade those who desire to light up from doing so; the (c) crime problems caused by making marijuana a black market commodity.

In policy terms, wouldn't it be better for the government to decriminalize marijuana and regulate much like it regulates alcohol and tobacco? This is what many policymakers - conservative and liberal alike - believe, for a number of reasons: (1) it would reduce crime; and (2) it would be a great moneymaker for government (through taxes on sales, etc.).

So it's time for a change. As Kathleen Parker says in today's Washington Post, "Our marijuana laws have been ludicrous for as long as we've been alive. Almost half of us (42 percent) have tried marijuana at least once, according to a report published last year in PLoS Medicine, a journal of the Public Library of Science.

"The U.S., in fact, boasts the highest percentage of pot smokers among 17 nations surveyed, including The Netherlands, where cannabis clouds waft from coffeehouse windows. ...

"Other better-known former tokers include our current president and a couple of previous ones, as well as a Supreme Court justice, to name just a few. A complete list would require the slaughter of several mature forests. ... It's time to recognize that all drugs are not equal -- and change the laws accordingly."

Second - and more seriously - aside from any policy reasons, current prohibitions on marijuana are unconstitutional.

As I've discussed in these pages previously, when a person's conduct affects the interests of no other person besides him- or herself , the government has no business regulating private conduct. When a person is engaged in such behavior, as Yale professor Ian Shapiro says, "there is no room for entertaining [memorializing into law] any such discussion." Liberty prevails and the individual's autonomy cannot be touched by government.

The principle that government only exists in the first place to protect liberty is time-honored. William Blackstone, whose 1768 Commentaries on the Laws of England were required reading for America's founders and framers of the Constitution, commented, “every wanton and causeless restraint of [free-will], whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny.”

J.S. Mill's 1859 "Harm Principle" is useful as well in conceptualizing the concept: "[There is but] one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, … that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." (I discuss Mill's harm principle in greater detail in a 2005 Willamette Law Review article entitled "Reviving a Natural Right: The Freedom of Autonomy").

The upshot of all of this is that it is okay for government to regulate, but not prohibit, conduct not harming others.

People using marijuana harm no-one but themselves (and no, generalized "harm to the society" or setting a bad example for The Children don't count - any "harm" must be direct; not just an attenuated claim that its use harms society); accordingly, the government has no business prohibiting its use.