Charles Fain Lehman has changed his mind about marijuana. I haven’t, and never will, change my mind about marijuana.
Lehman, a self-described “conservative,” is a fellow at the Manhattan Institute and contributing editor of City Journal whose work has “appeared in outlets including the Wall Street Journal, the Atlantic, National Review, the New York Post, and elsewhere.” He is “a policy analyst by trade, thinking about social problems and how to make them better from both a quantitative and journalistic perspective.” His interests “are generally at the intersection of policy and pathology: the causes, consequences, and control of death, crime, drugs, sex, and violence.”
In addition to being a columnist and policy advisor for The Future of Freedom Foundation, I am a contributing columnist at the New American magazine, an associated scholar of the Ludwig von Mises Institute, and a columnist, blogger, and book reviewer at LewRockwell.com. I am an accountant by trade, and a Christian libertarian by conviction. Although my interests are broad, I often write on the subjects of libertarianism, the free society, the warfare state, and the war on drugs.
But Lehman hasn’t just changed his mind about marijuana. He has also changed his mind about libertarianism. This is something that I will also never change my mind about.
In his Substack article “How I Changed My Mind about Marijuana,” subtitled “The Case for Prohibition,” Lehman spends several paragraphs denigrating libertarianism before telling us that he voted in 2022 against Maryland’s ballot question 4 “directing the Maryland State Legislature to pass laws for the use, distribution, regulation, and taxation of marijuana.” (The measure was approved by a margin of 67.2 percent to 32.8 percent.)
Lehman confesses that he was a “teenage libertarian.” He was no “fair-weather” libertarian, mind you, but “also read all the books the guys at the Mises Institute shove at you,” including Murray Rothbard’s For a New Liberty and America’s Great Depression. Like any good libertarian, he supported drug legalization: “Only a fool could think drug prohibition was a good idea! Marijuana, especially, should obviously be freely available.” He also “consumed marijuana a handful of times.” But it turns out that his “youthful libertarianism” was “driven by an instinctual contrarianism.” He now considers being a libertarian to be “passé.”
As for marijuana, Lehman thinks that “the arguments for legalization are mostly bad; that the harms of marijuana are, though not overwhelming, significant and probably debilitating for a large minority of the population; and that marijuana legalization will exacerbate, rather than alleviate, the cumulative harm of marijuana.” He believes “that the most commonly used arguments for legalization are not about marijuana per se. They are mostly about the harms of criminalization, and the way in which those harms fall disproportionately on black and Hispanic people.” Although these are indeed arguments used for legalization, they are certainly not the most commonly used arguments. Lehman never actually takes on the main argument against marijuana prohibition and just mentions it in passing.
He considers the notion that “marijuana’s psychoactive ingredients have medical benefits” to be “often overstated.” He finds “more persuasive” than the legal and medical arguments for marijuana legalization “two related and very straightforward reasons to legalize marijuana, ones which do not often feature in the debate but which obviously influence it nonetheless.”
“These are,” he says: “1) by default, people should be able to do what they want with their bodies and 2) marijuana is fun, and fun things are good.” Lehman weakens the seriousness of the first reason by mentioning it in conjunction with the second, which is something that no serious proponent of marijuana legalization has ever put forth. He also believes that “there are substantial harms associated with marijuana, just like any other intoxicant.” Marijuana use is a “social problem” because “marijuana has short- and long-term harms, it’s generally ‘performance-degrading,’ and these effects concentrate in a small, addicted subset of the population.” Therefore, “We should at the very least want it controlled in some way, if not prohibited outright.” Indeed, “If we cannot optimize the market in a vicious good, perhaps it is better to have no market at all, and to actively prohibit the production and sale of that good.”
Before giving my mind on marijuana and why I will never change it, it might be beneficial to take a brief look at the current status of marijuana in the United States. Beginning with Colorado and Washington in 2012, the recreational use of marijuana has been legalized in 23 states and the District of Columbia. Beginning with California in 1996, the medical use of marijuana has been legalized in 38 states (takes effect in Kentucky on January 1, 2025), the District of Columbia, and the other U.S. territories of the Northern Mariana Islands, Guam, Puerto Rico, and the Virgin Islands. Over half of the states have decriminalized the possession of small amounts of marijuana. The recreational and medical use of marijuana are both illegal in the states of Georgia, Idaho, Indiana, Iowa, Kansas, Nebraska, North Carolina, South Carolina, Tennessee, Texas, Wisconsin, and Wyoming. There are potential statewide ballot measures relating to marijuana upcoming in elections in Ohio this year and Florida, Idaho, Missouri, and Nebraska in 2024.
It should be pointed out, though, that the legalization of marijuana by a state — whether recreational or medical — should never be confused with marijuana freedom. Legalization comes with so many government rules and regulations on the state and local level that the marijuana market can hardly be considered free at all.
Most marijuana legalization laws don’t apply to legal adults who have not reached the age of 21 even though once they turn eighteen they can vote, run for office, enter legally binding contracts, marry, engage in consensual sex with other adults, adopt children, join the military, be subject to the draft (when the draft is in force), and produce or purchase pornography.
In most states, medical marijuana is only allowed for certain medical conditions, users must first obtain an identification card, doctors must prescribe the marijuana, the number of cannabis plants that one can possess is limited, and the number of ounces of cannabis that one can possess is limited.
And in spite of the legalization efforts of the states, it should also be mentioned that the federal government still classifies marijuana as a Schedule I controlled substance under the Controlled Substances Act (CSA) with “a high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use of the drug under medical supervision.” Possessing, growing, transporting, or distributing marijuana is a federal felony, with violations resulting in fines and/or imprisonment. And the Supreme Court, in the case of Gonzales v. Raich (2005), has ruled that the Controlled Substances Act did not exceed Congress’s power under the Commerce Clause as applied to the intrastate cultivation and possession of marijuana for medical use.
Therefore, the federal government has the authority to prohibit marijuana possession and use for any and all purposes. According to annual data compiled by the Drug Enforcement Administration (DEA), 5.7 million cultivated cannabis plants were confiscated last year via the DEA’s Domestic Cannabis Eradication/Suppression Program. Even though recreational marijuana is legal in California, the majority of DEA-related seizures and arrests took place in California.
I am of a different mind than Mr. Lehman. There should be no rules, restrictions, or regulations at any level of government for any reason regarding the buying, selling, possessing, growing, processing, transporting, advertising, using, delivering, or “trafficking” of marijuana.
This doesn’t mean that using marijuana is not addictive, harmful, foolish, risky, unhealthy, immoral, sinful, financially ruinous, or dangerous. But it does mean a number of things.
No one should be arrested for a marijuana offense.
No one should be charged with a law violation for a marijuana offense.
No one should be issued a ticket for a marijuana offense.
No one should have to go to court for a marijuana offense.
No one should receive a fine for a marijuana offense.
No one should be required to enter drug treatment for a marijuana offense.
No legal adult should have to wait until he is 21 to use marijuana.
No one should have to get a license to sell marijuana.
No one should have to get an identification card to purchase marijuana.
No one should have to see a physician to obtain marijuana.
Everyone incarcerated for a marijuana-related offense should be immediately released from jail or prison and have his record expunged.
There should be a free market in marijuana just like the free market that exists for fruits and vegetables or over the counter medications.
Any marijuana user should be able to grow as much marijuana as he wants to, purchase as much marijuana as he wants to, store as much marijuana as he wants to, or smoke as much as he wants to in his own home without fear of government agents breaking down his front door and arresting him for doing any of these things.
The use of medical marijuana should not be limited to just serious or specified medical conditions.
Marijuana sales should not be taxed any more than the sale of other goods.
Marijuana businesses should not be regulated any more than other businesses.
Marijuana should not be limited to just medical use.
It should not be illegal to grow marijuana in a publicly visible space.
Commerce in marijuana should not be hindered.
Marijuana should not be available just from state-run dispensaries. In fact, there should be no state-run dispensaries.
Americans should not have to vote to legalize marijuana.
At the very least, marijuana should be as freely available as alcohol. This, of course, is not ideal. There is certainly not a free market in alcohol in the United States. Alcohol is heavily regulated by the federal government and the states. Alcohol cannot be sold before or after certain times of the day depending on where one lives and what day of the week it is. Alcohol is heavily taxed. The legal drinking age is 21. Some states have government liquor stores and outlaw private liquor stores. And some states still have dry counties.
But almost any American who wants to can purchase as much beer, wine, and hard liquor as he wants to, store as much in his home as he wants to, and drink as much as he wants to in his own home without fear of government agents breaking down his front door and arresting him for doing any of these things. As long as they don’t abuse their children, commit a crime, or drive while intoxicated, the government will just leave them alone. (But not if Lehman has his way: “Bluntly, we should regulate alcohol much more stringently than we currently do.”)
Although I advocate a complete and immediate end to the war on marijuana at every level of government, I don’t want to make the perfect the enemy of the good. Some marijuana freedom is better than no marijuana freedom. Legal medical marijuana with illegal recreational marijuana is better than both of them being illegal. Legal medical marijuana with prescriptions and restrictions is better than illegal medical marijuana. And legal recreational marijuana with taxation and regulation is better than illegal recreational marijuana. But not only is it true that all laws that regulate or restrict marijuana should be ended immediately, it is also just as true that all laws that regulate or restrict marijuana could be ended immediately.
The basis of my views on legalization
My opinions regarding marijuana legalization are not based on crime or incarceration statistics, my personal views of marijuana (many medical claims dubious, recreational use is immoral), whether the drug war is “racist,” opinion polls, scientific studies, religion, medical research, or politics. My opinions regarding marijuana legalization are based on a number of things: federalism, the proper role of government, individual liberty, and the nature of crime.
To support any kind of federal role in the war against marijuana is to support a war against the Constitution and our federal system of government. The Constitution nowhere authorizes the federal government to have anything to do with marijuana (or any other drug).
The Constitution nowhere authorizes the federal government to have a drug czar, an Office of National Drug Control Policy, a Drug Enforcement Administration, a Controlled Substances Act, a National Drug Control Strategy, a National Survey on Drug Use and Health, or a Domestic Cannabis Eradication/Suppression Program.
The Constitution nowhere authorizes the federal government to ban any substance. Even progressives after World War I who sought to institute alcohol prohibition knew they could do it on the national level only by amending the Constitution. The Volstead Act to prohibit the “manufacture, sale, or transportation of intoxicating liquors” could not be passed by Congress until after the adoption of the Eighteenth Amendment in 1919. Under our federal system of government, any and all laws related to marijuana must be enacted by the states.
It is not the proper role of government to prevent people from engaging in actions that are hedonistic, immoral, sinful, dangerous, unhealthy, destructive, addictive, or financially ruinous — or for punishing them for doing so. It is not the job of government to keep people from harming themselves.
Although he was a drug warrior, President Reagan nevertheless said it best: “Government exists to protect us from each other. Where government has gone beyond its limits is in deciding to protect us from ourselves.” All government agencies devoted to warring against marijuana should be eliminated. All government bureaucrats who work for those agencies should be let go. All government efforts to study and classify drugs and conduct surveys and issue reports on drug use should be ended. Government should not fund or operate drug treatment centers, supervised drug injection sites, or needle exchange programs. Government should not educate people about the dangers of drug use, provide overdose medications, or persuade people to “just say no” to drugs.
Government marijuana-prohibition efforts lead to even greater evils, as Ludwig von Mises so well explained: “Opium and morphine are certainly dangerous, habit-forming drugs. But once the principle is admitted that it is the duty of government to protect the individual against his own foolishness, no serious objections can be advanced against further encroachments.”
A free man has the natural right to use marijuana — even if it kills him. All men have one thing in common: self ownership. Every free man owns his own body. As the owner of his own body, a man has the natural right to pamper his body or harm his body. Individuals should be free to use marijuana as long as they pay for it, don’t use it on someone else’s property without permission, and accept responsibility for their actions when they use it. Individuals should be free to pursue happiness in their own way even if their choices are deemed by others to be harmful, unhealthy, unsafe, immoral, unwise, stupid, destructive, or irresponsible. Individuals should be free to live their lives in any manner they choose as long as their activities are nonviolent, nondisorderly, nondisruptive, nonthreatening, and noncoercive. Individuals should be free to decide what risks they are willing to take and what behaviors are in their own best interests. In a free society, individual liberty has to include the right to do anything that’s peaceful as long as one does not violate the liberty of another. Anything less is not a free society.
Every crime needs a real victim — not a potential victim or a possible victim but a tangible and identifiable victim who has suffered measurable harm to his person or measurable damages to his property. Marijuana use may be a vice, but it should never be a crime. As explained by the great nineteenth-century classical-liberal political philosopher Lysander Spooner:
Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.
Unless this clear distinction between vices and crimes is made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property — no such things as the right of one man to the control of his own person and property, and the corresponding and coequal rights of another man to the control of his own person and property.
I could not change my mind about marijuana without also changing my mind about federalism, the proper role of government, individual liberty, and the nature of crime. To advocate the government controlling marijuana or prohibiting it outright, Lehman is rejecting a whole lot more than libertarianism.
This article was originally published in the October 2023 edition of Future of Freedom.