Timothy Hsiao
Grantham University
Forthcoming in Ethics & Medicine 35:1 (2019).
Abstract: The state has an interest in protecting the ability of its citizens to act freely in pursuit of the good life. Psychoactive drugs that negatively affect one’s cognitive capacities conflict with this goal by undermining the conditions needed for free action. Accordingly, the state has an interest in legally prohibiting certain classes of drugs, including marijuana.
Marijuana is a performance-degrading drug. It suppresses cognition and memory, alters judgement, impairs motor coordination, negatively alters brain development, and exacerbates mental health problems.[1] These findings are overwhelmingly supported by the medical literature.[2] In light of these facts, the contention of this paper is that marijuana should be legally prohibited.[3]
My argument against marijuana legalization is simple: the state has an interest in protecting the conditions for individual liberty. Psychoactive drugs that negatively affect one’s cognitive capacities conflict with this goal by undermining the conditions required for free action. Accordingly, the state has an interest in legally prohibiting certain classes of psychoactive drugs, including marijuana and other cognition-disrupting substances.
The thrust of the argument is that marijuana legalization is incompatible with respect for individual liberty. In that respect, the argument might be characterized as a libertarian argument for drug prohibition, although its conception of individual liberty differs sharply from libertarians in a number of key places.
After setting out the main argument in detail, I canvas a variety of objections that may be levelled against it. These include objections from bodily autonomy, the failure of alcohol prohibition, coercive paternalism, and the putative medical benefits of marijuana.
The Argument Against Marijuana Legalization
We can frame the argument against marijuana legalization as follows:
- If the state has an interest in protecting individual liberty, then the state has an interest in protecting the conditions for individual liberty.
- If the state has an interest in protecting the conditions for individual liberty, then it has an interest in restricting substances that impair, destroy, or otherwise frustrate these conditions.
- If the state has an interest in restricting substances that impair, destroy, or otherwise frustrate the conditions for individual liberty, then it has an interest in restricting marijuana.
- The state has an interest in protecting individual liberty.
- Therefore, the state has an interest in restricting marijuana.
Key to the argument is the fourth premise, which enjoys broad spectrum support. Despite diverse political opinions, there seems to be a general consensus across liberal, conservative, and libertarian political theories that one of the chief functions of the state is to create and sustain a society that protects the ability of individuals to act freely. This function is integrally related to the state’s fundamental role in organizing and maintaining proper social order, for one cannot maintain social order without safeguarding its prerequisite conditions. One such prerequisite is individual liberty: proper social order requires cooperation, and freedom of choice is essential to cooperation. Hence, one of the state’s basic obligations is to protect its citizens as they exercise their individual liberty in pursuit of the good life. This in turn requires that the state safeguard the conditions needed for individual liberty to flourish. To will the end is to will the means.
In general, then, if the state has an interest in protecting something, then it must also have a corresponding interest in protecting its flourishing conditions. This is because some interests presuppose other interests. For example, the right to assemble must presuppose the right to freedom of movement, for one cannot assemble if he is not free to move about. Therefore, a state that protects the former must also protect the latter. Or consider an analogy with free markets: If a state wants to recognize and protect free markets, then it must have an interest in safeguarding the conditions that make a market economy possible, including life, freedom of exchange, contracts, and private property. Without these elements in place, it would be practically impossible for a free market to flourish. These conditions denote structural and procedural requirements that the state needs to protect if it is to perform its role in protecting free markets.
Similarly, individual liberty cannot flourish if certain structural requirements are not met. There are necessary conditions that need to be met in order for persons to meaningfully use their liberty to realize their nature or to pursue any meaningful conception of the good life—whether it be their own or one that is imposed by the state. One such requirement is that our exercise of liberty flows from our rationality. Decisions can be free and autonomous only if they are made by an agent whose cognitive faculties are working properly. Reason confers on our actions a certain order and intelligibility that makes them explicable and coherent. It is what makes our actions ours, such that we are responsible for them. Thus, a person’s ability to act autonomously is diminished or destroyed if he is unable to deliberate or think coherently or if he is subject to overwhelming coercive forces. Indeed, actions that are not guided by reason are not, strictly speaking, actions at all, but involuntary “doings” or “happenings” that originate from something outside of one’s will. This framework of autonomy is pivotal in making sense of the legal concepts of consent and competence. Children are unable to enter into legally binding contracts because their cognitive capacities are not developed to the point at which they can understand what they are entering into. Likewise, insanity defenses and the concept of being unfit to stand trial are based on the recognition that insane or cognitively disabled persons lack sufficient liberty to be held criminally liable for their actions.
Since the state has an interest in protecting individual liberty, it also has an interest in making sure that its citizens’ exercise of that liberty is unimpaired. Since proper cognitive functioning is necessary for the unimpaired exercise of individual liberty, it follows that the state has an interest in protecting the proper cognitive functioning of its citizens. In other words, a state that respects individual liberty must protect and promote a culture that is conducive to clarity of thought and discourages impaired thought.
This leads us to the second premise: If the state has an interest in protecting the conditions for individual liberty, then it has an interest in restricting substances that impair, destroy, or otherwise frustrate these conditions. Such substances directly undermine the conditions for free action and are thus contrary to the state’s interest in protecting individual liberty. Included among these substances are psychoactive drugs that work by diminishing mental function. One such drug is marijuana, of which the cognition-disrupting effects include the following:[4]
| Effects of short-term use
? Impaired short-term memory, making it difficult to learn and to retain information. ? Impaired motor coordination, interfering with driving skills and increasing the risk of injuries. ? Altered judgment, increasing the risk of sexual behaviors that facilitate the transmission of sexually transmitted diseases. ? In high doses, paranoia and psychosis. |
| Effects of long-term use
? Addiction (in about 9% of users overall, 17% of those who begin use in adolescence, and 25 to 50% of those who are daily users).* ? Altered brain development.* ? Poor educational outcome, with increased likelihood of dropping out of school.* ? Cognitive impairment, with lower IQ among those who were frequent users during adolescence.* ? Diminished life satisfaction and achievement (determined on the basis of subjective and objective measures as compared with such ratings in the general population). * The effect is strongly associated with initial marijuana use early in adolescence. |
Contrary to popular perceptions, it is well established that marijuana is not a harmless drug, especially when it comes to its effects on cognitive functioning.[5] Thus, if the state has an interest in restricting substances that impair, destroy, or otherwise frustrate the conditions for individual liberty, then it has an interest in restricting marijuana.
But what should be the nature and scope of these restrictions? In general, the amount of restrictions for a given substance should parallel the degree to which it is used to undermine a state interest. A substance whose primary use is to impair cognition should therefore be treated more stringently than a substance for which this use is incidental. Since marijuana’s paradigmatic use is for recreational reasons (i.e. getting high), the type of restriction that would do the best job in furthering the state’s interest in protecting the conditions for individual liberty is near total prohibition.
Prohibition would restrict marijuana to a maximal degree, thereby minimizing any harms to individual liberty that may result. Prohibition subjects drug transactions to legal sanction, thereby making drugs more difficult to obtain and therefore more expensive. This combination of higher prices and reduced availability in turn reduces drug use. It is simply a matter of supply and demand: the more difficult it is to obtain something, the more expensive it becomes. The more expensive something becomes, the less willing people are to obtain and use it. In essence, prohibition drives up the cost of drugs, which reduces demand. Conversely, if something is cheap, legal, and easily obtainable, then people are more inclined to buy it. Marijuana legalization would make marijuana both cheaper and more available, which in turn would increase use. This relationship between prices, availability, and consumption has been confirmed by a large body of research.[6]
Based on these considerations, I conclude that marijuana should be prohibited. I will now address some objections to my argument.
Does Drug Prohibition Violate Individual Liberty?
One might object that respect for individual liberty requires marijuana legalization, and that marijuana prohibition is actually violates individual liberty. Libertarian philosopher Michael Huemer, for example, has argued in a widely reprinted article that there is a moral right to use drugs, which he derives from our right to self-ownership. According to Huemer:
Drug use seems to be a paradigm case of a legitimate exercise of the right to control one’s own body… If we consider drug use merely as altering the user’s own body and mind, it is hard to see how anyone who believes in rights at all could deny that it is protected by a right, for: (a) it is hard to see how anyone who believes in rights could deny that individuals have rights over their own bodies and minds, and (b) it is hard to see how anyone who believes in such rights could deny that drug use, considered merely as altering the user’s body and mind, is an example of the exercise of one’s rights over one’s own body and mind.[7]
Contra Huemer, there are grounds for doubting that a moral right to use drugs can be derived from the concept of self-ownership. First, a right is a claim or entitlement to some good or service. Rights exist as a “moral shield” that protects an individual as he pursues the good life, whether this be through obligating others to provide him with a good or by obligating them to mind their own business. Since the point of a right is to ensure that its bearer flourishes in his pursuit of the good, a right cannot extend to an activity that undermines this pursuit.
Indeed, it would be bizarre to argue that the state’s goal of promoting liberty is served by allowing its citizens to undermine their own liberty. The initial decision to engage in marijuana use may be free, but the end result is the diminution of liberty. One cannot realize his liberty by suppressing it, any more than one can become healthy by becoming ill. The idea that drug use can be justified by an appeal to freedom or liberty is thus self-defeating in the same way that drinking seawater to remedy thirst is counterproductive to its own goal. It is a perversion of liberty that turns liberty against itself.
Thus, while drug prohibition does involve restrictions on individual liberty, it is not a violation of one’s liberty rights. This is because the scope of liberty does not—for reasons just considered—extend to actions that undermine liberty. Indeed, if anyone should oppose marijuana legalization, it should be libertarians, for marijuana use “literally alter[s] the brain, the very organ that free market theory depends on people using to make good decisions.”[8]
Second, assuming that the idea of self-ownership is coherent, it does not establish that a person’s rights over his own body are absolute and unlimited.[9] Many philosophical traditions hold that a person owes himself duties of self-respect, for example, the duties to preserve his health and personal integrity and to develop his talents. If there are such duties, then they would seem to count against a moral entitlement to debase one’s mental functioning. Either way, Huemer’s conception of self-ownership rests on a controversial philosophical anthropology, which he does not justify satisfactorily.[10]
Does Drug Prohibition Lead to a Slippery Slope?
It is sometimes objected that the reasoning I have offered would open the door to coercive forms of paternalism, such as bans on fatty foods, sugary drinks, junk foods, and other unhealthy lifestyle habits. Not so. My argument for marijuana prohibition is not based on health or harm considerations per se. Rather, my argument is that certain substances should be controlled because they directly undermine cognitive functioning as a precondition for individual liberty. Although unhealthy, the activity of consuming fatty foods, sugary drinks, or junk foods does not directly diminish one’s ability to think or reason properly.
But perhaps this can be disputed for some substances. Even so, there is an important distinction to be drawn between psychoactive drugs and other substances that can impair cognition: psychoactive drugs are primarily used for the purpose of seeking a pleasurable experience through impaired cognition, while for other substances this purpose is incidental.[11] Thus, while someone might be able to get high from, say, sniffing markers, what justifies restrictive regulations on marijuana is the fact that the main purpose of marijuana use involves impaired cognition, whereas this is only incidental to markers. As was mentioned earlier, the degree to which something should be regulated should parallel the degree to which it is used to undermine a given state interest. For cognition-impairing substances, then, the amount of regulation for a given substance with psychoactive properties should be proportionate to the degree to which it is used to impair one’s cognition. For substances like marijuana, which almost exclusively involve cognition-impairing use, this means prohibition.
A related objection that closely parallels the unhealthy foods argument goes as follows: given that there are many conditions for individual liberty, my argument would imply that we should restrict cars, ladders, knives, household cleaners, and anything with the possibility of causing bodily harm or death. After all, one precondition for individual liberty is life, which all these things can threaten. This objection fails for the same reason as the previous one: there is a difference between things whose primary use is to impair the conditions for individual liberty and those things for which this use is incidental. Again, the degree to which something should be regulated should parallel the degree to which it is used to undermine a given state interest. For substances whose primary use does not involve undermining the conditions for individual liberty, restrictions should be minimal. This lines up with our intuitions regarding regulations of harmful things: all other things being equal, the more likely something is to be used to undermine a state interest, the more stringently it should be regulated.
Another version of the slippery slope objection contends that the approach I have laid out in this paper necessitates intrusive state censorship of certain ideas. According to this objection, if the state has an interest in protecting and promoting a culture that is conducive to clarity of thought, then it must also have an interest in censoring ideas that are false or irrational. This is taken to be problematic insofar as it cedes much too power to the state. But this objection misses the mark. My argument is that the state has an interest in protecting the conditions that make it possible for us to freely choose our beliefs, not that it has an interest in regulating their content. The state’s interest in protecting clarity of thought simply means that it has an interest in making sure that our cognitive faculties are properly functioning as a precondition to making choices or forming beliefs. On that note, the concept of “proper function” is a strictly biological category that does not make reference to any particular ideological system. In this respect, my argument does not privilege a specific conception of the good, but rather adopts a very minimal understanding of individual liberty that is shared across all conceptions of the good life: whether it be conservative, liberal, or libertarian. In other words, my argument is not that the state should dictate to us what we should believe or choose[12], but that the state has an interest in making sure our brains are working properly so that we may freely exercise our liberty to make choices and form beliefs.
But Didn’t Alcohol Prohibition Fail?
Critics of marijuana prohibition often point to the failure of alcohol prohibition as an example of why marijuana prohibition doesn’t work. Three claims are typically made in the context of this objection: (a) alcohol consumption did not decrease under National Prohibition, (b) National Prohibition significantly increased violent crime, and (c) National Prohibition failed because it was impractical and unfeasible. All three claims are demonstrably false and rest upon a “historically flimsy basis.”[13]
Regarding (a): Prohibition reduced per capita alcohol consumption by around 30–50 percent. Cirrhosis death rates (a good measure of heavy drinking), admissions to state mental hospitals for alcohol psychosis, and arrests for drunk and disorderly conduct also declined dramatically.[14] A survey of social workers conducted by Martha Bensley Bruere found that working-class drinking rates decreased and living conditions improved.[15] From an economic point of view, it should not be surprising that prohibition reduced consumption. Prohibition made alcohol more expensive and less available, which in turn discouraged and disincentivized its use. As Philip Cook explains: “the Volstead Act was successful in raising retail prices of alcoholic beverages by a factor of two or more… And the Prohibition period was associated with a substantial reduction in per capita alcohol consumption… Mortality rates from alcohol-related diseases were also lower, indicating that the prevalence of chronic heavy drinking was way down during the 1920s.”[16]
Regarding (b): Violent crime remained largely constant during Prohibition. The homicide rate experienced larger increases during the pre-Prohibition period between 1900 and 1910 than during all of Prohibition, which undercuts the idea that Prohibition unleashed a wave of crime.[17] Indeed, homicide rates were already rising long before Prohibition was enacted. Confirming this, criminologists Edwin H. Sutherland and C. H. Gehlke found “no evidence of a ‘crime wave’” that resulted from Prohibition.[18] And while organized crime syndicates did exploit Prohibition for their gain, widespread political corruption, gang wars, and organized crime existed long before Prohibition was enacted. As one author notes, it “would be naive to think that crime in the 1920s grew only because of the opportunities that prohibition presented.”[19] Other factors, such as societal changes occasioned by World War I and increased urbanization during the Roaring Twenties, largely accounted for slowly rising crime rates.[20] Indeed, Prohibition’s effect on homicide “is a mere data artifact, as the number of jurisdictions whose homicides were being counted centrally rose over the period.”[21] In sum, the idea that Prohibition significantly increased violent crime is a historical myth. In fact, there is evidence that Prohibition had a net negative effect on the homicide rate, owing largely to decreased alcohol consumption. This finding “casts doubt on the assertion that legalizing the sale of illicit substances would necessarily lead to a reduction in crime.”[22]
Regarding (c): Prohibition failed for political reasons, not because it couldn’t work. Although Prohibition did have an enforcement problem, this was not because Prohibition was impractical. From its very beginning, Prohibition was weakly enforced. Many “wet” states simply refused to enforce the law, while others repealed laws designed to enforce National Prohibition. Until Herbert Hoover took office in 1929, the federal government did little to allocate manpower and funds to enforce Prohibition. The result was that Prohibition enforcement efforts were chronically undermanned and underfunded.[23] Historians generally agree that lack of attention to enforcement—and not its impracticality—constituted the Achilles’ heel of Prohibition.[24] All of this, however, was not related to Prohibition’s eventual downfall. Its final blow came from the desire to increase tax revenues as a result of the Great Depression, not because it was seen as unfeasible or lacked public support.[25] There are good reasons to think that Prohibition would have been successful given a friendlier political climate and consistent enforcement.
Does Consistency Demand That We Also Ban Alcohol?
Another version of the alcohol objection appeals to consistency: if marijuana should be prohibited, then by extension alcohol should also be prohibited. I have two responses to this.
First, as was mentioned earlier, the amount of regulation for a given substance with psychoactive properties should be proportionate to the degree to which it is used to impair one’s cognition. Alcohol is commonly consumed as a mild social lubricant without the intention to get drunk. Hence, while alcohol should be regulated, it need not be done with the stringency of prohibition.[26] But this is not true of marijuana, as the whole point of most marijuana use is to get high. Nobody, after all, smokes a joint wanting to avoid the high. Thus, unlike alcohol, marijuana’s paradigmatic use is abuse.
Second, alcohol prohibition, though not required by my argument, is not all that unreasonable given alcohol’s cognitively impairing effects and its high social costs.[27] Over 88,000 deaths each year are attributable to alcohol consumption, while its social costs are estimated to be around $250 billion, which is fifteen times greater than the amount collected through local, state, and federal taxes (which puts to rest the idea that legal marijuana would lead to a net increase in revenue).[28] Alcohol also causes more crime than all other drugs combined, due largely to its legality and widespread availability (which puts to rest the idea that legal marijuana would reduce crime).[29] Its putative social benefits, such as relaxation and increased sociability, are insignificant when considered alongside these costs.[30] Studies have routinely shown that more stringent alcohol restrictions would yield immense social benefits.[31] Perhaps it is time for us to reconsider alcohol control.
What About Medical Marijuana?
Another objection is that marijuana should not be prohibited because it has medicinal benefits. In responding to this objection, it should first be noted that even if this objection is granted, all that would follow is that marijuana should be legal for legitimate medical purposes. It does not follow that marijuana should be legalized for recreational purposes.
This is an important point to note because as a practical matter, medical marijuana should not be legalized (at least, not in forms reminiscent to current medical marijuana programs) because medical marijuana programs provide a smokescreen for recreational use that amounts to de facto recreational legalization. In states with medical marijuana programs, the overwhelming majority of medical marijuana users are young male adults who claim “pain” as the reason for which they need marijuana. Only a tiny percentage use marijuana for other reasons.[32] One study of seven states found that 91% of medical marijuana patients received marijuana for pain, while only 3% reported cancer and 2% reported AIDS, glaucoma, Alzheimer’s, Hepatitis C, and ALS.[33] Pain, of course, is a very vague reason that is easy to fake, so it provides an avenue for recreational users to obtain marijuana under the false banner of medicine. Indeed, typical medical marijuana users do not fit the typical profile of a pain patient: while most medical marijuana users are young and male, most individuals suffering from chronic pain are elderly females, suggesting that many medical marijuana patients are simply faking or exaggerating their pain.[34]
More importantly, the term “medical marijuana” is misleading because it is not actually the marijuana plant that has medicinal properties, but cannabinoids found within the plant. The marijuana plant itself contains up to five hundred chemical constituents, of which seventy are cannabinoids.[35] Of these seventy, two have been singled out as having some medical promise: cannabidiol (CBD) and delta-9-tetrahydrocannabinol (THC). Citing the medical benefits of CBD and THC as a justification for legalizing the raw plant for personal consumption is therefore a sleight of hand that obscures what is actually doing the medicinal work.
There is some research showing that cannabinoids can help with pain management, nausea and vomiting, and multiple sclerosis spasticity.[36] I am not opposed to the research and development of cannabinoid-based prescription medicines that utilize the benefits of either THC or CBD, provided they go through the same rigorous regulatory process by which other medicines are approved. Indeed, several already exist: dronabinol, nabilone, nabiximols, and epidiolex are all cannabinoid medicines at various stages of FDA approval. While medical marijuana of this kind is unobjectionable and ought to be supported, it would be ill-advised and reckless to legalize the raw smoked marijuana plant under the guise of medicine, which is precisely what legalizers are trying to do. Most of the push for medical marijuana is really just a smokescreen for recreational marijuana.
The Shape of Marijuana Policy
When it comes to the status quo in the United States, many have argued that the War on Drugs is a failure and is responsible for a variety of social ills, with mass incarceration being perhaps the most significant.[37] While there are very good reasons to doubt these claims[38], favoring marijuana prohibition need not commit us to a particular system of regulations or punishments. One can oppose the status quo while simultaneously favoring prohibition.[39]
I have argued in this paper for a policy of marijuana prohibition. If I am right, governments should make it a goal to enact laws criminalizing the sale and possession of marijuana for recreational use. The question of how this goal is to be implemented, accomplished, and enforced is another matter altogether, one that I leave open for policymakers to debate. Drug policy is messy and complex, and as such there is no clear answer to the exact shape that our drug laws should take. What is clear, though, is that prohibition should be the ultimate goal of our drug policy when it comes to marijuana. The exact means to this goal is what remains to be debated, as prohibition enforcement can come in various forms. Hence, I do not propose to defend any specific drug policy.
Conclusion
Individual liberty is an important good. But in order for someone to meaningfully exercise his liberty, he must be in a position where his cognitive faculties are in working order. Marijuana impairs one’s ability to think and reason, thereby preventing individuals from meaningfully exercising their liberty. Marijuana legalization, therefore, is incompatible with respect for individual liberty. Since one of the state’s core interests is that of protecting individual liberty, marijuana ought to be legally prohibited.[40]
Endnotes
[1] Nora D. Volkow et al., “Adverse Health Effects of Marijuana Use,” New England Journal of Medicine 370:23 (June 5, 2014): 2219–2227, doi: 10.1056/NEJMra1402309.
[2] See ibid; T. H. Moore et al. “Cannabis Use and Risk of Psychotic or Affective Mental Health Outcomes: a Systematic Review” Lancet 370:9584 (July 2007): 319–328, doi: 10.1016/S0140-6736(07)61162-3; Matthew Large et al. “Cannabis Use and Earlier Onset of Psychosis: A Systematic Meta-Analysis” Archives of General Psychiatry 68:6 (June 2011): 555–561, doi:10.1001/archgenpsychiatry.2011.5; Natania A. Crane et al., “Effects of Cannabis on Neurocognitive Functioning: Recent Advances, Neurodevelopmental Influences, and Sex Differences” Neuropsychology Review (2013) 23:117–137, doi 10.1007/s11065-012-9222-1; Wayne Hall, “What Has Research over the Past Two Decades Revealed about the Adverse Health Effects of Recreational Cannabis Use,” Addiction 110:1 (January 2015): 19–35, doi: 10.1111/add.12703; Wayne Hall, Maria Renström, and Vladimir Poznyak, eds., The Health and Social Effects of Nonmedical Cannabis Use (Geneva: World Health Organization, 2016); Nora D. Volkow et al., “Effects of Cannabis Use on Human Behavior, Including Cognition, Motivation, and Psychosis: A Review” JAMA Psychiatry 73:3 (March 2016): 292-297, doi: 10.1001/jamapsychiatry.2015.3278; Marie C. McCormick et al., The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (Washington, DC: The National Academies Press, 2017) doi:/10.17226/24625.
[3] I do not address the morality of recreational drug use in this article. For analyses of this issue, see Timothy Hsiao, “Why Recreational Drug Use is Immoral” National Catholic Bioethics Quarterly 17:4 (2017): 605–614. DOI: 10.5840/ncbq201717462; and Ezra Sullivan and Nicanor Austriaco, “A virtue analysis of recreational marijuana use,” The Linacre Quarterly 83:2 (2016): 158–173.
[4] Adapted from Volkow et al., “Adverse Health Effects of Marijuana” Table 1.
[5] See the studies listed in footnote one.
[6] See Mark A. R. Kleiman, Jonathan P. Caulkins, and Angela Hawken, Drugs and Drug Policy: What Everyone Needs to Know (New York, NY: Oxford University Press, 2011). For alcohol, see the discussion in Philip J. Cook, Paying the Tab: The Costs and Benefits of Alcohol Control (Princeton, NJ: Princeton University Press, 2007). For marijuana, see Hefei Wen, Jason M. Hockenberry, and Janet R. Cummings. “The effect of medical marijuana laws on adolescent and adult use of marijuana, alcohol, and other substances,” Journal of Health Economics 42 (July 2015): 64–80, doi: 10.1016/j.jhealeco.2015.03.007; Deborah S. Hasin et al., “US Adult Illicit Cannabis Use, Cannabis Use Disorder, and Medical Marijuana Laws 1991-1992 to 2012-2013,” JAMA Psychiatry 74:6 (June 2017): 579-588, doi: 10.1001/jamapsychiatry.2017.0724.
[7] Michael Huemer, “America’s Unjust Drug War,” in The New Prohibition: Voices of Dissent Challenge the Drug War, ed. Bill Masters (St. Louis, MO: Accurate Press, 2004), 140.
[8] Jonathan Caulkins, “Psychoactive Drugs in Light of Libertarian Principles” Law and Liberty (November 2017) http://www.libertylawsite.org/liberty-forum/psychoactive-drugs-in-light-of-libertarian-principles/
[9] On this, see Timothy Hsiao, “Consenting Adults, Sex, and Natural Law Theory” Philosophia 44:2 (2016) 509–529. Doi: 10.1007/s11406-016-9705-z
[10] For a lengthier critique of Huemer’s philosophical anthropology, especially the idea of self-ownership, see Timothy Hsiao, “You Are Not Your Own: A Critique of Liberal Social Ethics” Evangelical Philosophical Society Article Library (May 2018) http://epsociety.org/library/articles.asp?pid=385&mode=detail
[11] So-called “medical” use of marijuana will be considered in another section.
[12] That being said, I do not believe that there is any kind of “right to be wrong.” See David S. Oderberg, “Is There a Right to be Wrong?” Philosophy 75 (2000): 517–537.
[13] Jack S. Blocker, “Did Prohibition Really Work? Alcohol Prohibition as a Public Health Innovation,” American Journal of Public Health 96:2 (February 2006): 233–243, doi: 10.2105/AJPH.2005.065409
[14] Clark Warburton, The Economic Results of Prohibition (New York, Columbia University Press, 1932); Mark H. Moore, “Actually, Prohibition Was a Success,” New York Times October 16, 1989, and Jeffrey A. Miron and Jeffrey Zwiebel, “Alcohol Consumption during Prohibition,” American Economic Review 81:2 (May 1991): 242–247.
[15] Martha Bensley Bruere, Does Prohibition Work? A Study of the Operation of the Eighteenth Amendment Made by the National Federation of Settlements, Assisted by Social Workers in Different Parts of the United States (New York, NY: Harper & Brothers, 1927).
[16] Cook, Paying the Tab, 27.
[17] John Landesco. Prohibition: A National Experiment (Annals of the American Academy of Political and Social Sciences, 1932) p. 128–129; Moore, “Actually, Prohibition Was a Success”; Herbert D. Kleber and James A. Inciardi, “Clinical and Societal Implications of Drug Legalization” in Joyce H. Lowinson, Pedro Ruiz, Robert P. Millman, and John G. Langrod, Substance Abuse: A Comprehensive Textbook 4th ed., (Philadelphia, PA: Lippincott Williams & Wilkins, 2005), 1392.
[18] Edwin H. Sutherland and C. H. Gehlke, “Crime and Punishment,” in Recent Social Trends in the United States, Report of the President’s Research Committee on Social Trends Vol. 2 (New York, NY: McGraw-Hill, 1933), 1128.
[19] Ian Tyrrell, The US prohibition experiment: myths, history, and implications, Addiction 92:11 (1997): 406. Citing Norman H. Clark, Deliver Us From Evil: an interpretation of American Prohibition (New York, NY: W. W. Norton, 1976).
[20] Landesco, Prohibition, 129; Kleiman, Caulkins, and Hawken, Drugs and Drug Policy, 23; Emily Green Owens, “Are Underground Markets Really More Violent? Evidence from Early 20th Century America” American Law and Economics Review 13:1 (Spring 2011): 1–44.
[21] Kleiman, Caulkins, and Hawken, Drugs and Drug Policy, 23. Also see Douglas Lee Eckberg, “Estimates of Early Twentieth-Century US Homicide Rates: an Econometric Forecasting Approach” Demography 32:1 (1995): 1–16
[22] Owens, “Are Underground Markets Really More Violent?,” 3.
[23] Wayne Hall, “What Are the Policy Lessons of National Alcohol Prohibition in the United States, 1920–1933?,” Addiction 105:7 (July 2010): 1166, doi: 10.1111/j.1360 -0443.2010.02926.x.
[24] See Blocker, “Did Prohibition Really Work?” 238.
[25] Ibid, 239.
[26] All that being said, the argument I have given would support more stringent restrictions on alcohol, given that many do use it to impair their cognition via drunkenness.
[27] See the argument in J. Angelo Corlett, “Taking Drugs Very Seriously,” Journal of Medicine and Philosophy 38 (February 2013): 235–7248, doi:10.1093/jmp/jht002. Although Corlett does not talk specifically about alcohol, his general argument can be used to support alcohol prohibition.
[28] Centers for Disease Control (CDC), “Alcohol Use and Your Health.” 2018. http://www.cdc.gov/alcohol/fact-sheets/alcohol-use.htm; Jeffrey J. Sacks et al., “2010 National and State Costs of Excessive Alcohol Consumption,” American Journal of Preventive Medicine 49:5 (2015): 73–79, doi: 10.1016/j.amepre.2015.05.031; Tax Policy Center, Alcohol Tax Revenue: 1977-2015. (2017) http://www.taxpolicycenter.org/statistics/alcohol-tax-revenue; Tax Policy Center, Tax Policy Center Briefing Book http://www.taxpolicycenter.org/briefing-book/what-are-major-federal-excise-taxes-and-how-much-money-do-they-raise.
[29] Jonathan P. Caulkins and Mark A. R. Kleiman, “Drugs and Crime” in Michael Tonry (ed), The Oxford Handbook of Crime and Criminal Justice (New York, NY: Oxford University Press, 2011): 275–320.
[30] Moreover, many of its social benefits are overstated. For example, the claim that moderate alcohol consumption can be healthy lacks robust support. For a review of the evidence, see Cook, Paying the Tab, 107–166 and Tim Stockwell et al., “Do ‘Moderate’ Drinkers Have Reduced Mortality Risk? A Systematic Review and Meta-Analysis of Alcohol Consumption and All-Cause Mortality,” Journal of Studies on Alcohol and Drugs 77:2 (2016): 185–198.
[31] See Cook, Paying the Tab, 82–106.
[32] “Data from 2012 show that in Arizona, 90 percent of the marijuana patients claimed pain while only 4 percent got the drug for cancer. In Colorado, 94 percent claimed pain; 3 percent claimed cancer. In Oregon, 94 percent also claimed pain.” Ed Gogek, Marijuana Debunked: A handbook for parents, pundits and politicians who want to know the case against legalization (Asheville, NC: Chiron, 2015): 112.
[33] Kevin Sabet et al., “Why do people use medical marijuana? The medical conditions of users in seven U.S. states,” Journal of Global Drug Policy and Practice 8:2 (2014) as cited in Gogek, Marijuana Debunked, 112.
[34] Gogek, Marijuana Debunked, 112–114.
[35] Kevin Sabet, Reefer Sanity: Seven Great Myths About Marijuana 2nd ed (New York, NY: Beaufort, 2018): 44.
[36] McCormick et al., The Health Effects of Cannabis and Cannabinoids.
[37] See, e.g. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York, NY: The New Press, 2010). Douglas Husak has characterized drug prohibition as “the worst injustice perpetrated by our system of criminal law in the twentieth century.” See Douglas Husak, Legalize This! The Case for Decriminalizing Drugs (London: Verso, 2002): 2.
[38] See John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York, NY: Basic Books, 2017).
[39] For an example of a prohibitionist who argues for reforming current laws, see Sabet, Reefer Sanity.
[40] Thanks to Ben R. Crenshaw for comments on an early draft of this paper.