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?