Ending the forever war on drugs, pt. 4: libertarianism and the nanny state

by Dave Maier

Previous installments: pt. 1, pt. 2, pt. 3

A few months back I wrote a letter to the editor of my local newspaper, the first time I had ever done that, and they printed it. A number of legislators in my state had held a news conference announcing their plan to legalize, regulate, and tax the sale and use of marijuana in New Jersey. Unfortunately for them, our state’s governor, Chris Christie, has made it perfectly clear that he would veto any such bill, so that plan is on hold for now. (There is a gubernatorial election this year to replace the term-limited and in any case unprecedentedly unpopular Christie, and the highly favored Democratic candidate, one Phil Murphy, has indicated his support for legalization.) As the reporter noted, the legislators had made a big deal about how much tax revenue this plan would raise, and had suggested that this might be part of a solution to the state’s pension crisis. Governor Christie had of course rejected the idea, citing his belief that marijuana is a “gateway drug”, that supporters of legalization are “just stupid liberals who think that everything is okay” and that, especially during an opioid crisis, such tax revenue would amount to “blood money.”

PotplantsIn my letter (they don’t allow you much space, so I had to be brief) I agreed with the Governor that if marijuana really is as bad as he believes, then we might very well be better off spurning the tax money that legalization would raise; but I also pointed him, and everyone else, to the online resources on the subject available at, for example, the Marijuana Policy Project (the paper doesn’t allow web addresses in their letters, but here I can link) – in particular, the careful refutation available there of the “gateway” theory (a theory which, one might note, even the DEA no longer endorses). I concluded with a plea that, given that this issue will (thanks to Murphy’s endorsement of the idea) be an important one in the fall campaign, we should all do our homework in order to show other states “how we do public policy in the Garden State.”

Alas, my plea has fallen on deaf ears. In the past couple of weeks, there have been in the Bergen Record two op-eds and a number of letters on the issue, none of which (even the sensible ones) show any evidence of a whole lot of homework-doing.

In the August 6 edition of the Record, columnist Mike Kelly published a long opinion piece called “But is it healthy to make America high again?”. For those of us who grew up in the Nixon/Reagan/G. H. W. Bush Drug War era, the tone of Kelly’s article is perhaps not what we would expect. During that time, you could not pick up Newsweek or the Reader’s Digest without seeing yet another breathless exposé about how smoking pot causes irreversible brain damage or sterility or inevitably leads to heroin addiction or turns you gay or (if you’re a boy) makes you grow breasts (no, I’m not making that up). So it’s a clear testament to changing times that, on the surface anyway, Kelly spurns time-honored prohibitionist preaching.

It’s also odd for that same reason. Kelly’s rhetorical pose is that of a plea for caution in the face of a headlong rush to legalization. This requires him to suggest that no-one has ever thought of this before: would-be legalizers are [my emphasis] “ignoring all those concerns about basic health,” which are “rarely discussed”; “why aren’t we hearing these same [health] concerns”; the legalization movement must “open its eyes to the health problems”; and even “consider for a moment a counter-argument”. Kelly’s picture makes him look to be in his 60s, meaning that he lived through that same drug-war era as I did, so who knows what his deal is. Maybe he didn’t get Newsweek back then. Or own a television.

Not to pound the point home or anything (skip ahead if you must), but I keep coming back to Kelly’s bizarre idea that to suggest that marijuana might be bad for you is some sort of soberly contrarian view, not conventional wisdom hammered home by prohibitionists since time immemorial. Don’t media professionals read, you know, the media? Let me tell you a story. It’s just an anecdote, a single data point, but it’s telling. I read a brief report somewhere – The Week maybe, I don’t remember – about a 30-year longitudinal study of thousands of regular marijuana users in New Zealand, I think it was. The study found that the regular marijuana users scored slightly (i.e. not statistically significantly) better on most measures of overall health than did the control group. (This of course does not mean that marijuana use is definitely not unhealthy.) One thing they found that was statistically significant was, weirdly enough, that the marijuana users were rather more likely to have tooth decay. (Who knows why.) Here’s the thing though. You might think that the headline for the story would have at least alluded to the fact that even after decades of prohibitionist propaganda telling us how horribly unhealthy marijuana is, this 30-year study did not find that to be true. But no. What was the headline then? You guessed it: “Pot causes tooth decay.” I believe the appropriate internet expression here is “SMH”.

Now to the point suggested by my subtitle. Once we look past the odd throwaway lines (e.g., “In all likelihood, pot will eventually be as legal as milk”, an absurdity properly rebutted by a subsequent letter writer), I think we can see why Kelly puts things the way he does. For in other things Kelly takes a standard liberal line, and indeed he is quick to reassure us that, Democratic senator Cory Booker’s recent call for federal marijuana legalization notwithstanding, “not all Democrats — or progressives, for that matter — are supporting the increasing trend to legalize pot.”

This is quite right, and conversely, not all Republicans and/or conservatives want to continue prohibition. Let’s think about why this might be. Kelly cites Democratic senator Dianne Feinstein as she “pooh-poohed the pro-pot campaigns” that have resulted in eight states and the District of Columbia repealing prohibition: “‘I’m not there. I think there’s a lot about marijuana we don’t know,’ Feinstein said. ‘I think marijuana has potential dangers to it.’”

Feinstein’s attitude is certainly more enlightened than traditional condemnations along the lines of “pot makes you gay,” but on the other hand its muted nature renders it bizarrely thin as a motivation for a sweeping law-enforcement attack on people’s potentially unhealthy behavior. Remaining unaddressed, or even acknowledged, is the basic principle underlying this liberal version of the prohibitionist mindset: if something is or even might be bad for you, the government has not only the right, but indeed the obligation to make it illegal to produce or consume. The only acknowledged check on this principle is the political reality that the public will not, in general, stand for being told what they may or may not do, simply because it has been determined by their betters that such legal constraints are for their own good.

PogoThe great Walt Kelly satirized what would later become known as the “nanny-state” attitude back in the 50s. In one sequence, after Albert Alligator wakes up from what turns out to be an ice-cream-induced nightmare, Pogo tells him that “you ate practically a whole gallon of strawberry at the picnic – but then, you’re livin’ in a country where a man’s free – even to make a pig of himself if he wants.” To which Albert replies “As a matter of fact, it’s one of the things I got against it – why don’t the gover’ment protect its citizens!?”

Leading marijuana prohibitionist Kevin Sabet [further discussed here] understands this attitude well. Seeking to broaden the appeal of prohibition beyond the traditional conservative moral denunciation of degenerate hippies, as well as the dated and unsavory racial attitudes partly responsible for “marihuana” prohibition in the first place, he travels around New Jersey and other states giving talks called (I’m not making this up – I saw a sign for this one in the library) “The Alarming Truth About Marijuana” to audiences of soccer moms and suburban dads. Presenting prohibition as an enlightened issue of “public health”, Sabet appeals to the same liberal nanny-statism which led NYC mayor Michael Bloomberg (a Republican, but a generally socially liberal one) to ban vat-sized servings of sugary sodas, as well as to the liberal anti-corporate streak which consigns, for example, tobacco executives to the seventh circle of hell.

But presenting the public-health version of prohibitionism as an enlightened liberal alternative to the “reefer madness” kind (the title of Sabet’s book is Reefer Sanity) is misleading. Its natural conservative opponent is not the hippie-despising law-and-order prohibitionist but instead the freedom-loving libertarian, who approaches this wedge issue in an interestingly analogous way. While Sabet tries to make liberals into prohibitionists, that is, libertarians try to make anti-prohibitionists into libertarians.

How does this go? Just as it seems obvious to liberal nanny-staters that we should help save people from their unhealthy desires for their own good, it seems equally obvious to everyone else that, for example, the decision about what substances I may put into my own body is one that should be made not by government bureaucrats but instead by me alone. But in contrast to Pogo’s homespun libertarianism, the hardcore libertarian position goes much further in its resistance to what it sees as government overreach. For that position holds not simply that the government has no right to prohibit my potentially unhealthy behavior, but also that it has no right to appropriate resources from me through taxation to help in any way those unfortunates whose unhealthy behavior has sickened them. Libertarian slogans stressing the freedom of the sovereign individual come with a rider: freedom for all … and devil take the hindmost.

Naturally public health should remain a concern of us all, even while we debate the limits of government power. Libertarians hope that common-sense anti-prohibitionism, as manifested in the drug reform movement, will extend to rejection of the whole idea of government as a public health cop. If you live downstream from a corporate polluter, don’t call for big government daddy to make them stop (via job-killing regulations); just take responsibility for your own life and move away. If your defective mobile phone explodes and takes your eye out, don’t sue; the free market will punish that manufacturer better than any lawsuit ever could. However, one need hardly subscribe to the whole nanny-state laundry list of wholesale bans to object here. Surely there is a happy medium.

One more point about Kelly (Mike, not Walt). After acknowledging that Senator Booker’s motivation for federal marijuana legalization (more precisely, “descheduling”, or removal from the Controlled Substances Act) centers on the disproportionate prosecution of minorities for drug crimes, Kelly asks “why not just reduce penalties for pot possession? Why legalize it?” While the implication that no one has thought of this point before is weirdly offensive, this question does at least deserve an answer.

We can find answers in many places, and I’ll just link here to a good summary. Interestingly, though, Kelly himself gives one answer, albeit unwittingly. Contrasting the allegedly see-no-evil attitude toward marijuana of Booker and other legalizers with changing attitudes toward tobacco, Kelly spends several paragraphs on the story of how a concerted public-health campaign has reduced cigarette smoking from a mark of cool rebellion or worldly sophistication to “a sad, smelly addiction.” And yet somehow all this was accomplished without cigarette smoking ever being prohibited by law. I’d say there’s a lesson in there somewhere.