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Should the State Punish Drug Offenders?


Republican presidential contender George W. Bush’s refusal to deny cocaine use raises some fundamental, moral questions: Why should the state be punishing adults for drug offenses? Why shouldn’t people be free to engage in self-destructive behavior as long as their conduct is peaceful? Why should anyone be put in jail, fined, or have his property confiscated for simply engaging in an activity that entails no violence against others?

The answers to these questions ultimately turn on the meaning of human freedom. What does it mean for an individual to be free?

Let’s take the simplest case. A 40-year old single man is alone in his living room drinking vodka, smoking cigarettes, and snorting cocaine. We can concede that his conduct is dangerous and self-destructive. But what business is that of the state? Should the state be permitted to criminalize activity simply because it poses a risk to people who choose to engage in it?

The ultimate political issue in a representative democracy is: Should the peaceful choices that a person makes in his life be subject to majority rule? Or should such choices be immune from the control of the majority?

Most Americans acknowledge that individuals have certain inherent rights that are beyond the reach of the majority. Examples are found in the First Amendment – freedom of religion, freedom of speech, freedom of the press, the right to assemble. For example, even if 95 percent of the American people decided that everyone should attend church on Sunday, they would not have the authority to pass a law to that effect, because the Constitution prohibits the majority from passing such a law.

Why shouldn’t a person’s choices as to what to ingest be subject to the same constitutional protection? It’s his mouth. It’s his body. It’s his choice as to what to put into them. Why should the majority have the power to control this part of a person’s life if it doesn’t have the power to control his religious or intellectual choices?

“But it hurts ‘society,’ if people are using drugs,” it might be suggested. Even if that’s true, doesn’t a person have the right to live for his own sake rather than for the sake of “society”? A truly free person may be part of society but that doesn’t make him owned by society. He continues to own himself and continues to have the right to live his life in his own way, free of state control, so long as his conduct remains peaceful.

This was the central idea of the Declaration of Independence. Every person has fundamental, natural rights that preexist government. Among these rights are life, liberty, and the pursuit of happiness. And the notion that such rights are beyond the reach of government, even in a representative democracy, was later enshrined in the Constitution.

It is true that some people choose to pursue happiness in ways that others condemn. But isn’t that the very essence of a free society? If people are “free” to do only that which the state considers “responsible,” then aren’t people in North Korea and China “free” by that standard?

The true test of a free society is not the extent to which people can engage in “responsible” behavior. The true test is whether they are able to engage in what everyone else considers “irresponsible” behavior, again, so long as the person’s conduct is peaceful (that is, no murder, rape, theft, burglary, etc.). In a free society, it is the duty of the government to protect, not destroy, the exercise of such choices.

Thus, if George W. Bush did, in fact, ingest cocaine, it was his right to do so. People might disagree with his choice, but no one has the right to jail him, fine him, or confiscate his assets for what he did. It is his inalienable right to live his life and make his choices as he sees fit, so long as his conduct is peaceful.

The principle applies to George W. Bush. It applies to everyone else as well.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.