Wouldn’t That Be a Good Thing?

Monday, April 28th, 2008

Cato’s Ilya Shapiro writes:

Much as I hate to rain on my colleague Juan Carlos Hidalgo’s understandable happiness at the decriminalization of personal consumption/possession of small amounts of drugs, this doesn’t exactly represent a ray of hope in Argentina’s otherwise gloomy policy mix. Not because I believe in the War on Drugs – I can’t imagine anybody at Cato does – but because it was a court that reached this decision instead of a policymaking body.

Imagine the outcry if the U.S. Supreme Court simply decreed a policy it didn’t like to be unconstitutional – I know, with Justices Stevens and Kennedy at the apogee of their powers, it’s not a far stretch. Better yet, recall the poison the Court injected into our legal and political systems when it short-circuited the political process by inventing a right to abortion in Roe v. Wade (again, I’m not saying anything about the underlying policy arguments).

So it is here: Instead of having the Argentine Congress change the law, the nation’s Supreme Court (by a vote of 4-3) simply decreed that criminalizing drug use is unconstitutional. Reports are still sketchy, but this sounds like precisely the kind of judicial fiat developing (or any) countries need to avoid if they want to strengthen the rule of law.

I don’t know what the Argentine Constitution says about drug use, and it appears that Shapiro doesn’t, either. Wikipedia says, “Section 19 says that private actions of men that don’t harm the public order or another man can not be judjed by authorities,” which to me would certainly seem applicable to recreational drug use.

In any case, Shapiro’s more general point misunderstands a pretty basic tenet of libertarianism (or, if you prefer, classical liberalism, rights theory, liberalism, John Locke, and the Founding Fathers): That we have certain rights that government cannot properly legislate away through the political process. I’d argue that what you decide to put into your own body would certainly be one of those rights.

Fact is, we’d be a hell of a lot better off if the U.S. Supreme Court declared more of what federal government tries to do unconstitutional, because 90 percent of what the government does actually is. Shapiro takes a jab at Justice Stevens, but in fact, he and Stevens are pretty much on the same page, here. It was Stevens, in his opinion in Raich, who said that instead of striking down the way the Justice Department has been enforcing the Controlled Substances Act (or, better yet, striking down the blatantly unconstitutional Act in the first place), supporters of medical marijuana should work to get the laws changed through the democratic process.

When it comes to protecting our fundamental freedoms, we want activist judges. I want them striking down every law that doesn’t have an explicit justification in the U.S. Constitution. Which is to say most federal laws.

Shapiro’s invocation of Roe is a bit different because there’s an arguable case to be made that with abortion, there are competing rights at stake.

But not so with drug use. Is Shapiro really arguing that there’s no fundamental right to recreational or medical drug use–that this is something that should be left to the political process? If so, what other rights–enumerated and unenumerated–does Shapiro feel are negotiable? What’s sacred, and what’s otherwise subject to the whims of politicians and regulators?

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7 Responses to “Wouldn’t That Be a Good Thing?”

  1. #1 |  Mike H | 

    Exactly. Why should the people be forced to regain personal freedoms by starting on the bottom rung of the political process – which takes a lot of money, time and luck – and work their way up?

    These rights were originally abridged by those in the lofty halls of government; surely thence they should be restored.

  2. #2 |  OGRE | 

    Restoration through blood is typically a more sustainable method of recovering abridged rights.

  3. #3 |  nom de guerre | 

    ogre has a point. the list of freedoms taken by government *and then given back* is a short list indeed. especially when compared with the list of things that – once upon a time – government had no say in, and now regulates entirely.

    is it time to start hunting the SOB’s yet?

  4. #4 |  kaptinemo | 

    As anyone who’s studied the problem (re-legalization of cannabis for general consumption) it’s all well and good to say that one should use the political process to change the laws; paean to democracy, and all that.

    But when an entire bureaucratic empire exists, complete with its’ own lobbying arm, and that bureaucratic empire is powered by taxpayer’s dollars, and uses those dollars in that lobbying effort, the going for reform is always uphill and in low gear. Add to this the fact that said bureaucracy is aligned with politically influential groups, who view such reform as sanctioning social deviance (or threatening various apple carts such as lucrative industries protected against competition by prohibition), and the going becomes almost impossible.

    I agree that what is needed right now is a Supreme Court dominated by such as Louis Brandeis, who understood the values of individual liberties and the bulwark they provided against the actions of those whom he termed as being ‘men of zeal, without understanding’. We’ve got entirely too many such running things in this country, and they’ve pretty much run it into the ground.

  5. #5 |  ZappaCrappa | 

    - “Wikipedia says, “Section 19 says that private actions of men that don’t harm the public order or another man can not be judjed by authorities,”

    What a glorious concept!!!

  6. #6 |  Steve Verdon | 

    Fact is, we’d be a hell of a lot better off if the U.S. Supreme Court declared more of what federal government tries to do unconstitutional, because 90 percent of what the government does actually is.

    Isn’t that what the “switch in time to save nine” was partly about. Prior to that event, during the Great Depression, the Supreme Court would routinely shoot down laws and policies simply because they weren’t deemed constitutional. The court applied the same line of thought to New Deal policies and Roosevelt responded with a very blatant power grab threatening to pack the supreme court till he got enough judges on there to agree with him.

    Shapiro doesn’t know his history, either, it seems.

  7. #7 |  Chip | 

    Ilya Shapiro travels back in time to 1954:

    Much as I hate to rain on my colleague’s understandable happiness that states will no longer be able to force black kids to go to separate public schools from white kids, this doesn’t exactly represent a ray of hope in our otherwise gloomy policy mix. Not because I believe in segregated schools, but because it was a court that reached this decision instead of a policymaking body.

    Instead of having Congress or state legislatures change the law, the nation’s Supreme Court simply decreed that segregated schools are unconstitutional. This sounds like precisely the kind of judicial fiat that countries need to avoid if they want to strengthen the rule of law.

    When legislatures violate people’s rights, they should have no redress in the courts. They should be willing to suffer the violations of their rights until such time as they can gain control of the legislative branch.

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