As the State of California prepares to debate whether or not marijuana should be decriminalized, the Federalist Society sought to resolve an issue of higher magnitude: whether virtue and drug use are incompatible. The lively lunchtime debate featured plenty of snacks and The Law School’s own Professor Richard McAdams and Professor John Baker of the LSU Law Center to hash out an answer.
The most surprising part of the debate was that there was not much of a debate on drug laws at all. Both professors agreed in general the that so-called “war on drugs” had largely been a waste of resources given its growth to a multi-billion dollar economic intrusion and espoused general support for the DOJ’s new stance on marijuana. As for whether virtue and drug use are incompatible, let’s just say the professors agreed that everything in moderation was a good creed to follow. Who says you can’t pass on a question in law school?
Professor Baker began with a summary of the medical marijuana laws in California and wondered aloud whether AG Holder was a libertarian or just soft on crime for the DOJ’s reversal on prosecutions. Given that there are over 4,500 federal crimes, only a small fraction of which are actually enforced, Baker proposes that it just might be an end to the unjust and disproportionate focus on drug laws. Baker even went as far to say that he thinks that the federal government should be out of the business of governing people altogether.
For drug cases in particular, federal policies blur the line between crimes and simple regulatory offenses. To Baker, crimes are acts that need to be prohibited while regulation says what you are doing is actually okay, just let me—the federal government—tell you how to do it. Thus, the federal government spends money on labels and chasing regulatory offenses disguised as crimes in order to justify their existence.
The federal government’s mistake, according to Baker, is the attempt to enforce uniformity across the states where it is not needed, nor ever desired by the founders. Since people may travel from state to state for good or bad purposes, we need the feds to enforce borders; but on drug issues, they are confused. Police powers need to lie with the state and we should encourage experimentation within the states. Las Vegas, Nevada is one such experiment, but it only works if the feds do not push uniformity. Simply put, Iowa is like a field of dreams but New Orleans is not. As a nation, we are better off if the feds stop trying to make them the same.
Instead of an attack on the federal government, Professor McAdams presented two alternative views of what AG Holder’s stance might mean. On one hand, strong libertarians say that this is an unjust intrusion upon liberty and that adults should be able to engage in activities as long as they don’t have externalities. McAdams then alluded to data that supports the position that most of the costs of drug use are incurred because of attempts to regulate and prohibit its use. Furthermore, supporters of this position would tend to think that any costs incurred would simply be the price of liberty. On the other hand, a libertarian could also argue that the failure of the war on drugs is just the evidence of an ill advised attempt to stop a black market and now it's about time for the federal government to try something else.
As for what to do, Baker pointed out that the federal government damages virtue by setting social policy that usurps a state's ability to use its laws to shape its citizenry. Thus state regulations that are over run by federal criminal prosecutions lead to more people being labeled as virtue lacking criminals. McAdams concurred by pointing out that though the US makes up roughly 5% of the world's population, we have over 25% of the incarcerated. McAdams then gave an account of Portugal since it legalized the possession of drugs (up to a 10 day personal supply). Among other things, drug related crimes are down and usage rates for elective drug treatment programs are up. But how does the empirical argument stack up against the virtuous one?
One could argue that mind altering drug use should be criminal, but alcohol is mind altering as well, so what’s the difference. Between the two, there isn’t really a meaningful disparity with respect to virtue. Baker went on to say that when a person becomes inebriated, that person loses the capacity to govern herself and government must step in. Thus, in the absence of personal virtue, government has to grow to make up the slack. If legalized drugs will infringe on virtue, then it could very well lead to larger government and might be a bad idea.
McAdams countered that occasionally, the students and law professors in the room may drink beer or wine after dinner and engage in other mind altering consumption, without suffering meaningful loss of virtue. McAdams then presented more empirical comparisons from international community to show that there is no reason to automatically think that the level of drug use or virtue would change just because we stop putting people in jail.
In the end, both professors agreed that there is a problem if you use anything to the point of wild inebriation, but the discussion went beyond the basic advice you received going off to college.