Four states and the District of Columbia have lifted their prohibitions on recreational marijuana use by adults. That number could double in November, when Arizona, California, Maine, Massachusetts, and Nevada vote on proposals to eliminate state restrictions on possession and cultivation of specified amounts of marijuana by those twenty-one and older.
The fact that these are voter-driven ballot initiatives is both a blessing and a curse.
It is a blessing insofar as the outcome is entirely in the hands of voters. This means that a sound and well-organized educational campaign against legalization has a fair chance of success.
But it is a curse because, if approved by the direct vote of the people, such laws will be increasingly difficult to repeal or overturn. It will be especially difficult given the refusal of the Department of Justice under the Obama administration to enforce federal law regulating marijuana, which remains a Schedule I controlled substance, defined by serious potential for abuse without any legitimate, proven use in medicine. Possession is punishable as a misdemeanor accompanied by a fine or jail time, while the more serious offenses of sale and cultivation are punishable as felonies.
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For both philosophical and practical reasons, it is essential that the measures for legalization this November be defeated.
The Moral Status of Marijuana Use
Marijuana is a psychoactive substance—a substance introduced into the body for the purpose of affecting how one feels. The spectrum of psychoactive substances ranges from your daily cup of coffee or tea to pain killers such as Advil. It includes tobacco, alcohol, and antidepressants as well as less frequently used substances such as marijuana, cocaine, and heroin. Even if such psychoactive substances can be used morally, they can certainly be abused and used immorally.
When it comes to marijuana use, it is possible that there may be legitimate medical reasons to ingest the drug. In such circumstances, when there is an intelligible good to be served by ingesting marijuana and there are no defeating reasons not to do so—consequences of use, side effects, effects on others, availability of other less problematic forms of medical treatment for the health problem in question, legal status of the drug—one may use marijuana.
Thus, it is possible that “medical marijuana” laws may be permissible, so long as such laws provide for a regulatory framework that does not allow individuals to grow their own supply of the drug, ensures that medical prescriptions are used only by those to whom they are issued, and restricts prescriptions for the drug to cases where there is no less mind-altering medical treatment reasonably available to the patient.
But most marijuana use today is not for medical reasons. More typically, marijuana is used either a) with the intention of achieving an altered state of consciousness by “getting high” or b) with the intention of “getting high” as a means to a further end that is perceived as good, such as building community or having a religious or aesthetic experience.
Both of these uses are morally impermissible.
The use of marijuana with the intention of getting high, whether as a means or an end, harms the basic good of health in obvious ways. The effects experienced by someone who has imbibed alcoholic beverages too freely—impaired motor skills and disrupted psychological functioning—are similar to the effects experienced by someone who is high on marijuana. More generally, as Germain Grisez argues, one’s use of the drug for non-medical purposes serves to detract from healthy functioning by either suppressing or intensifying certain functions of one’s body and mind to the detriment of the healthy harmony that should exist among the various functions.
Marijuana abuse also damages friendship. Even if one is choosing to get high with a group of friends, hoping to deepen bonds of loyalty and camaraderie, there is no actual sharing achieved or common good participated in by virtue of the high, as each person’s getting high—a focus on his own state of mind and felt conscious state—precludes him to that extent from communion with the others. One’s subjective feelings cannot be truly shared by others. In other words, regardless of any other goods the group is actually participating in at the same time, getting high together does nothing to contribute to those goods and may harm them.
The most common form of marijuana use today is this kind of abuse, wherein the user intends to get high. Because that intention involves harm to the basic goods of health and friendship, acting with that intention is always wrong.
The Case of Legal Regulation: Is Marijuana Different from Alcohol?
Does the moral impermissibility of marijuana abuse justify legal proscription of its general possession, sale, and use?
Some argue that marijuana use is a merely private vice—if it is a vice at all—and that it does not have much of an effect on others. But as Robert P. George writes, private acts of vice can imperil important public interests when the private acts begin to multiply. Drawing a sharp line between private acts outside the law’s domain and public acts that are subject to government regulation is difficult. Widespread drug abuse is a matter of public concern and is reasonably subject to the reach of the law. Yet marijuana use is admittedly complex. While marijuana is often abused, there are also cases where it is used in a morally permissible way.
Consider the case of alcohol. Alcohol can be abused, and drinking to get drunk is morally wrong (for the same reasons that marijuana abuse is). But our law does not prohibit the possession, sale, or consumption of alcohol. It restricts its possession to those twenty-one and older and regulates its use in various ways, protecting others from the harms that may result from abuse (for example, with laws regarding driving under the influence of alcohol). The thrust of such regulations is to safeguard the public domain by giving people an incentive to confine the consequences of alcohol abuse to non-public domains. We have judged that despite the potential for abuse of alcohol it is more prudent to regulate its possession, sale, and consumption than to outlaw it altogether.
Why should the law treat marijuana any differently?
Defenders of marijuana legalization argue that marijuana can be used just as alcohol is—as a mild social lubricant, or to relax and unwind after a long day at work—without the intention of getting high. They may even concede: smoking marijuana to get high is always wrong, as is drinking to get drunk, but marijuana should not be banned because one can smoke marijuana for other reasons. By prohibiting marijuana, they argue, one is unfairly targeting reasonable uses of the drug and infringing on people’s liberty.
In spite of the similarities raised between alcohol and marijuana, there is a significant and extremely relevant difference. The central case of marijuana use is one of marijuana abuse. Unless marijuana is ingested for medical purposes (an exception that does not require general possession, sale, and use of the drug to be legal), those using it are abusing it. No one sits down to smoke a joint hoping to avoid getting high. No one ever seeks out a seller and says, “I want some marijuana, but not enough to get high on.” Even those who might try marijuana experimentally are intending to get high. Whether that altered conscious state is a means or an end, it is part of one’s intention, and that intention—smoking marijuana to get high—is always wrong.
The most common use of alcohol, by contrast, is not akin to that of marijuana use. Many people consume alcohol frequently without intending to get drunk. While excessive drinking is a serious problem for some people, the central case of alcohol use is not one of abuse, as in the case of marijuana use.
Many people enjoy a cold beer or a glass of wine with their dinner simply because they enjoy the taste, or they have been working in the heat all day, or it goes well with their meal, or because it is beneficial to their health in moderation, or to be sociable. Many people do this without intending—or effecting—harms to health or friendship because they drink only a moderate amount of alcohol. Many people are able to have an alcoholic drink and experience next to no discernible effect on their state of mind or their motor skills.
This difference between alcohol use and marijuana use is morally relevant for the question of what stance the law ought to take toward the recreational use of either psychoactive substance. The fact that most marijuana use is actually abuse, along with the fact that marijuana use is not simply a private vice but an act that affects others beside the user, justifies the government, at least in principle, in banning the substance of marijuana and prohibiting its possession, sale, and use.
Forming a Prudent Drug Policy
Whether or not marijuana should be prohibited requires a prudential judgment on the part of legislators and the people themselves. Making this judgment requires weighing what justice requires, what is in the interest of those who will abuse the drug whether it is legal or prohibited, what the consequences for respect for the rule of law will be when some refuse to obey the law, and more.
Consider the problem of law enforcement. In 1970, Congress passed the Controlled Substances Act, a policy that stemmed from the recognition that the problem of drug trafficking can only be effectively addressed on a national scale.
Witness the drawbacks of marijuana legalization in Colorado. As the attorney general of Nebraska noted earlier this year, marijuana sold legally in Colorado (which legalized recreational use in 2012) reaches a substantial majority of the states in the union. Colorado has almost no protection against non-Colorado residents purchasing marijuana in the state, leading to law enforcement headaches for neighboring states like Nebraska, which still seek to enforce federal law.
There is no such thing as a purely intra-state market in legalized marijuana. A patchwork of different policies on marijuana’s legal status in the states is untenable. The conflict between states over legalized marijuana has resulted in the states of Nebraska and Oklahoma filing a lawsuit against the state of Colorado with the Supreme Court. Regulation of dangerous drugs is not an instance where federalism demands that the individual states be allowed to set their own rules over and against federal policy. Rather than eliminating illegal sales of marijuana, legalization has made Colorado “the black market for the rest of the country.”
Proponents of legalization argue that the current system has led to the overcrowding of prisons with people whose only fault was possessing marijuana illegally. The truth is that the vast majority of inmates in state and federal prisons whose offenses involve marijuana are either serving time for distribution or for additional offenses beyond marijuana possession. Less than one percent of federal and state prison inmates are in jail for possession alone, and many of these sentences were the result of plea bargains leading to the dismissal of more serious offenses.
Legalizing marijuana will not do much to reduce the number of people in prison. In fact, the opposite may be true, as the increase in use bound to follow legalization will probably lead to an increase in crimes committed under the influence of marijuana. Somewhere between one-fourth and one-third of federal and state prisoners say that they were under the influence of drugs when they committed their current offense.
A Child-Oriented Approach to Policy
Legalization does little to reduce black market drug activity, does not unclog prisons, and causes law enforcement headaches across the country. But even more important than these reasons against legalization are arguments that stem from a child-oriented approach to public policy.
A child-oriented approach to policy entails the development and implementation of policies that protect and benefit children—who cannot yet speak for themselves politically but who will determine the future of our society. Because children are the most vulnerable and impressionable members of our society, public policy should take their needs into account.
A child-oriented approach to drug policy would seek to inform children of the health risks of marijuana use, stigmatize its use, prevent children from gaining access to the drug, and foster an environment in which parents are aided and not thwarted in their efforts to raise their children in a drug-free community. Legalizing marijuana will not foster any of these goals. Legalization destigmatizes use, makes it easier for children to obtain the drug, and increases use in the population generally, exacerbating drug-related criminal offenses, addiction, and trafficking.
A recent study published in JAMA Pediatrics found that the rate of marijuana exposure in young children in Colorado has increased 150 percent since 2014, leading to an increase in hospitalizations. In most cases of exposure, the drug was owned by family or friends of the child. In many cases, children are exposed to marijuana in the form of edibles—sweets infused with tetrahydrocannabinol (THC), the active ingredient in the drug—that take the form of brownies or gummy bears. Following legalization in Colorado, cases began to be reported of students bringing marijuana edibles to school and sharing them with friends.
Legalization will only serve to increase the risk of exposure to marijuana for children. And the effects of marijuana and THC on users—especially young people—are not benign. At least one of every eleven young adults who start smoking marijuana will become addicted. That percentage increases in places like Colorado where products have been introduced with unprecedented levels of THC, making the drug up to two or three times as potent as most marijuana trafficked in the last decade.
In a study conducted with a group of college students, those who smoked marijuana were found to have impaired working memory even when they were not under the influence of the drug. Further, THC rewires the functions of the cognitive system by attaching to and modifying receptors in the brain that regulate systems involved in eating, learning, and forming relationships. The risks to health and overall flourishing that children face in a culture with increasing use of marijuana ought to be a primary concern when it comes to shaping drug policy.
Legalizing Marijuana Won’t Make Us More Free
Proponents of marijuana legalization invoke liberty as the driving force behind their movement. But how much freedom does one enjoy when one is dependent on a drug? What are the consequences of a regulated industry that fulfills addicts’ desires while lining the pockets of the government? Colorado’s tax revenue from the marijuana industry totaled $70 million last fiscal year. Whom, or what, is the policy of legalized marijuana truly benefitting—is it the common good, or the pocketbooks of marijuana entrepreneurs and the government? We should be wary of a system that rewards the government by fostering unhealthy and immoral practices among citizens.
No family is better off when one of its own abuses drugs. No child is better off with parents or family members who are drug users or living in neighborhoods and attending schools where marijuana is accessible. No community is better off when a large number of its people are drug users—what employer would be pleased when the pool of potential employees increasingly features habitual drug users? No society is better off with legalized marijuana.
The law is a teacher. While prohibition is not likely to make drug users choose to forgo drugs for the right reasons, criminalization at least indirectly discourages the vice by providing an incentive for people to avoid the behaviors that are occasions for abuse. While eschewing decriminalization, we should at the same time support initiatives—perhaps via more sentencing flexibility for judges—aimed at rehabilitating rather than merely imprisoning low-level, nonviolent drug users and setting them on a path to virtue.
The future of our project in self-government depends on the existence of a free and virtuous citizenry. Widespread drug abuse is a not a sign of liberty realized, but of liberty lost.