Sometimes, we even forget to bring them onto the playing field.
FAIR WARNING: One subject of this piece will be currently illegal drugs and the proper legal attitude toward them. It’s probably the most contentious subject roiling the Right. Tempers often flare over it. Many in the Right, daunted by its seeming complexity, are unwilling to take a position on it. Two of Liberty’s Torch’s Co-Conspirators differ with me about it: Linda judiciously; Dave fiercely. But its importance compels me to defend my position, despite the rigors and the occasional outbursts of bad feeling from others.
Therefore, Gentle Reader, if you want to skip this column, feel free to do so.
“Utopia is not one of the options.” — David Bergland
The great Thomas Sowell once posited that the great majority of liberal nostrums could be torpedoed by the asking of three questions:
- Compared to what?
- At what cost?
- What hard evidence do you have?
I posit that the efficacy of this approach is not confined to economics. Indeed, it applies to many prescriptions, whether they’re advanced from the Left, from the Right, or from beyond the Moon. For nothing is without unintended consequences (sometimes called “side effects”); nothing is without cost; and every proposition or any sort in public policy implies a cause-and-effect relationship that cannot be assumed, but must be demonstrated. For Dr. Sowell, this was inherent in his proclamation that “There are no solutions; there are only tradeoffs.”
Whenever we speak of “doing something” about some phenomenon that some consider a “problem,” Sowell’s three questions must be asked. Yet so great is the supremacy of preferences over reason in policy discussions that they’re almost never asked, much less candidly confronted and honestly answered.
I use the word preferences above to subsume several non-rational and anti-rational factors, including personal passions so great that they can be all-consuming. There’s no avoiding these things. Everyone has preferences of some kind, and some of them are so passionate that we’d blindly sacrifice anything and everything to their fulfillment. That’s great part of what makes politics so dangerous.
One consequence of the elevation of preferences over reason is the demotion of principles to just another kind of preference. There aren’t a lot of people who respect principles anymore, largely because they’ve lost the distinction between principles and preferences.
First: the definition: A principle:
- Is a rule that governs human conduct;
- That supersedes any and all non-principles;
- And therefore must be placed above all preferences;
- …including those preferences that are made into “laws.”
Now comes the all-important coda: if they exist. For there are those who claim that there’s no such thing as a principle that isn’t merely someone’s preference. One noteworthy claimant, Stanley Fish, actually went so far as to say that “All preferences are principled.”
No middle ground is possible. Either principles exist, or they do not exist. If they do, they must exhibit the attributes above. If they don’t…?
Now comes the fun part.
The sort of principle that applies to American law and jurisprudence…or did at one time…is called a right. Rights are the foundation for our variety of law. Their power derives from their nature as principles: they supersede anyone’s preferences to the contrary. If you’ve ever wondered why lunatics are constantly claiming “rights” to absurdities – e.g., a “right to contraception,” or a “right not to be misgendered” – it’s because they recognize the power of the word.
Leaving the absurdities to one side for the present, the consequence of a recognized right is that its practice is immune from the State. If there is a right to freedom of expression, then the State cannot legitimately penalize it. The State may possess a preponderance of force that enables it to do so, but the contradiction to the recognized right cannot be washed away.
For obvious reasons – please don’t demand that I explain this, Gentle Reader – rights must not contradict one another. The greatest tumult of all our legal wrangles arose from a seeming contradiction: the clash between an unborn child’s right to life, which arises from his human nature, and a woman’s right to absolute authority over her own body, which arises from her self-ownership as a moral agent. This may eventually be resolved, but not through the demotion of either of those rights.
We currently suffer another such highly publicized clash, but one more easily resolved: that between freedom of expression and the demands of some for the legal suppression of “hate speech.” If freedom of expression is really a right (“I have always read ‘no law abridging’ to mean no law abridging.” — Associate Justice Hugo Black) then “hate speech,” whatever it may be, must receive legal tolerance. Otherwise, freedom of expression isn’t a right but some sort of government-granted permission which may be withdrawn in particular cases. That would make “freedom of expression” a legally-decreed preference maintained by government enforcement power; no principle would exist to underpin it.
Quite a fraction of the Gentle Readers of Liberty’s Torch are nodding and muttering “yes, yes, get to the point!” You’ve been reading the point, friends; you just haven’t realized its implications.
The clash over what to do about currently illegal drugs has reached a degree of clamor that’s seldom been known to these United States. It arises from a large number of considerations:
- The revulsion against what some drugs do to those who take them;
- The effects of rampant drug dealing on cities;
- The immense profits that flow to organized crime;
- The corrupting effect on police forces and prison workers;
- The pernicious effect on America’s relations with certain other countries;
- The expense and legal burden of the Drug War;
- The overcrowding of American prisons;
- The erosion of other civil liberties;
- The involvement of drugs in spreading various diseases;
- The protection of children, not only from drug use but from street violence.
No doubt there are others; the above are those that most easily spring to mind. All are worthy of consideration; they receive it in the exchanges over what “should” be done and by whom. But if we recognize a right of self-ownership, which must logically include the right to decide what will and what won’t go into one’s own body, all those considerations must be deemed secondary to whether laws against those drugs would violate that right. As usual, the most important word in the previous sentence is if.
So I must ask: Do we recognize a right of self-ownership? Is a living man the sole rightful arbiter of what will go into his body? What are the implications of that right? What are the implications of denying that right?
This is where the rubber meets the road.
Either rights exist, or they do not exist. If they exist, they involve absolute consequences…Furthermore, if a right exists, it exists at every moment. It is absolute today, yesterday, tomorrow, the day after tomorrow, in summer as in winter, not when it pleases you to declare it in force. – Louis Thiers
Before the Flexner Report provided governments with a rationale under which to impose State control over medicine, no one had even dreamed of making the State the arbiter of what drugs a competent individual may take or refuse. But shortly after its publication, governments throughout the land started making laws about who may and who may not practice medicine, and under what conditions. It also provided the rationale for the subsequent subsumption of authority over all drugs by the federal Food and Drug Administration.
The consequences of this de facto nationalization of medicine, drugs, and all related subjects have been very wide. Some of the most important ones were unintended by any of the persons involved. If you’ve seen the excellent, largely fact-based movie Dallas Buyers’ Club, you already know about some of them.
The existence of fraudulent treatments for certain very serious diseases — Krebiozen and Laetrile are often mentioned in this connection – is used to rationalize FDA control over all things it deems “drugs.” Worse, its authority has been used to impede the “off label” use of drugs already deemed sufficiently safe; the recent flap over ivermectin as a treatment for COVID-19 is a good example. Still worse, the FDA has recently attempted to extend its authority over vitamins and other supplements, including some that are naturally present in any healthy human body.
The FDA has prevented some abuses. It has also prevented or delayed some cures. It has denied terminally ill persons access to experimental courses of treatment. Its operations are shrouded to some extent, such that it can be very difficult to unearth the reasons for its decisions. But worst of all, its very existence denies each man’s right to feed and medicate himself as he sees fit: his right to self-ownership.
The point of what has gone before is to ask whether we genuinely honor rights as principles that are prior and superior to anyone’s preferences. We know that the State and its operators don’t honor rights. Indeed, the current president has openly said that “no right is absolute.” It’s understandable; our rights impede his agenda and that of his backers. If he concedes that we have rights, he is thereby restrained by them, and cannot proceed upon any course that would violate them.
Those who deny rights almost always seek to violate them. But then, what other reason could there be for denying them? Book tours?
I could go on from here, and at some time in the future I surely will. But allow me to close by citing another writer, one whom I generally approve, who has presented an argument that “drug legalization has failed.” That’s the subject of Daniel Greenfield’s latest opus. While I don’t wish to denigrate his concerns, I must say that he’s posted a non-argument. It contains several misstatements of the facts. It ignores who’s responsible for certain features of the situations it decries. It also fails to take into consideration the important principle that assertions of authority must always be bounded by enforcement power. To assert an authority without the means to enforce it adequately is folly that destroys respect for the law: an important aspect of the rise of anarcho-tyranny.
When conservatives were consistent about rights and the respect they deserve, we didn’t have these problems. Intelligent people, already agreed upon principles, could argue without rancor. Such arguments did not rise above a conversational level of volume. But that was then and this is now. Many a contemporary “conservative,” passionately determined to have things according to his preferences, is just as willing to shred Constitutional protections as any revolution-minded Leftist.
I’m closing comments on this piece, for the question it raises is one with a yes-or-no answer. You must answer it for yourself.
Have a nice day.
