I understand what Damon Linker is getting at in his latest column, on the steady advance of marijuana decriminalization and legalization. But I’m developing something of a peeve against his framework, according to which the advance of “moral libertarianism” makes it impossible for us to understand the moral arguments against legalization:
Americans increasingly believe that individuals should be free to engage in behavior that harms no one besides the person who consensually chooses to engage in it, especially when the harm is either minimal or wrapped up with traditionalist religious convictions that (supposedly) have no business being backed up by law and the coercive power of the state. Once the solvent of moral libertarianism is applied to just about any contrary argument, that argument’s cogency dissolves right before our eyes.
And then we are left with an absence of reasons not to engage in behavior that was once presumed to be both immoral and justifiably illegal.
I understand his argument, and I like John Stuart Mill as much or more than the next guy. And I’m aware that a juvenile libertarianism according to which, “who says?” and “you gonna make me?” are treated as powerful arguments has gotten more popular. But I’ve still got a peeve, and my peeve, like Linker’s argument, has multiple parts.
First of all, what is Linker referring to when he talks about “behavior that was once presumed to be both immoral and justifiably illegal.” What, exactly, is immoral about smoking pot as such? I can only understand that view within a framework according to which a wide variety of other worldly pleasures – drinking alcohol, smoking tobacco, probably even wearing fancy clothes and eating fancy food – are grouped under the rubric of “vice.” Now, that’s a perfectly fine framework; it served our Puritan ancestors well, and it serves the LDS Church, the various Anabaptist sects, and other groups pretty well today. But it’s simply not true that we must choose between this kind of framework and “moral libertarianism” according to which “do what thou wilt” is the only law (provided you’re not hurting anybody else directly). There are a variety of moral frameworks that view the enjoyment of fleshy pleasures in moderation not merely not as vice, but as essential to health – while still caring about the health of the individual, and not just his or her freedom of action. Epicurus was not Anton LaVey.
Once that is granted, though, the question of legalizing pot becomes a practical, consequentialist one. All of Linker’s arguments against legalization are, as it happens, consequentialist ones – and the thing is, they have consequentialist answers. Does the state tutor virtue successfully when it prohibits a practice that is so widely indulged in? What impression does it make on the impressionable when nobody will defend a widely-flouted law on the merits, when the only defense is: change is risky? As for the poor, who do you think bears the brunt of the war on drugs? Those 1-in-20 arrests that are for marijuana possession – who do you think is being arrested? Burke, who did not oppose all change, is more readily enlisted on the side of decriminalization than on the side of prohibition, for the same reason that he is more readily enlisted on the side of same-sex marriage: in both cases, the law would not be driving social change but recognizing a social change that has already occurred. There’s nothing particularly Burkean about using tradition as an excuse for refusing to face that fact that a given custom is now honored largely in the breach.
None of the above arguments require some kind of inherent, principled objection to the state trying to encourage moral behavior. Nor does that fact that an existing prohibition on pot feels less and less sensible mean that there’s any less receptivity, socially, to new restrictions on personal freedom in the name of improving society. The same society can simultaneously legalize pot and put more restrictions on gun ownership, or on casual sex on campus, or on speech deemed hateful or subversive. From the perspective of a true Epicurean, repression and overindulgence look like two sides of the same coin.
At bottom, I’m just unconvinced that “moral libertarianism” is the right way to describe the guiding ideology of our day. I don’t think that our general attitude towards drug use is an indifferent tolerance edging toward encouragement of experimentation (which is what I would imagine “moral libertarianism” ought to mean). We do not say, “hey, if he wants to kill himself with liquor, that’s his business” so long as the drunk isn’t harming anybody else directly. We have no problem, as a society, in saying that addiction is an objectively bad state, or in saying that public policy should aim to reduce the number of people in that state. Drinking, gambling, sex – name any traditional vice you like, we have a public discourse that goes beyond the sacrosanct nature of personal choice in talking about those activities. Most distinctively, we identify an internal problem that directly affects only the afflicted – the psychological experience of a loss of freedom – and we see that as an objective evil we call “addiction.”
This shift in emphasis does have consequences for how we think about policy. The concept of “vice” imputes objective power to the indulgence itself. Gambling, alcohol, pornography: these are vices; they have an inherent allure, an inherent power, which some people will fall prey to more readily than others. And so we need to keep that power in check by hedging it in, even if we know it cannot be extirpated outright. The concept of “addiction,” though, emphasizes not the power of vice but the weakness of the individual. The first “step” of the original twelve-step program read:
We admitted we were powerless over alcohol—that our lives had become unmanageable.
It’s not that alcohol was powerful – it’s that we were powerless. The problem is us, and we have to solve it – not alone, not without help from others, but by changing ourselves. That’s a highly individualist approach to these matters, but it’s not “moral libertarianism” as I understand Linker to be using the phrase.
Or perhaps I misunderstand it.