Wednesday, May 3, 2017

An Essay Against State Regulation of Psychoactive Substance Use

       If the current opioid epidemic raging across the country tells us anything about a bigger picture, it is a reminder that the Controlled Substances Act, the DEA, the Organized Crime Drug Enforcement Task Force and the entire war on drugs paradigm is an abysmal failure. It was a failure from its inception, but people are just starting to wake up to this reality. According to the CDC, fatalities caused by prescription opioid overdoses have quadrupled since the turn of the century. From 1999 until 2015, 183,000 people killed themselves overdosing on prescription grade heroin such as Oxycontin, Oxycodone, Vicodin, and Hydrocodone, but this is just the tip of the iceberg 1. In 2010, 22,600,000 Americans, about 9% of all U.S. Citizens, self-reported illicit substance use within at least the past month 2. Do you think the U.S. could afford to incarcerate over 22 million people, which at the current average cost per inmate would total over $700 billion? It's doubtful, but that is the aim of law enforcement is it not? The contention here is not that further restrictions should be placed on opioid prescriptions or that the State (which here means all levels of government) should take less punitive measures to correct substance abuse, but rather that it should stop performing this function completely. The State should not regulate the use of psychoactive substances in particular, aside from perhaps age restrictions, and should not regulate what people consume in general. What a person puts in his own body is solely his prerogative and effects only his own well being in and of itself, that is, when it is not coupled with conduct in the public sphere (e.g. driving, flying or performing a civil service).

       If we start with John Stuart Mill's maxim that an individual's conduct within his own private sphere solely concerns his own good provided he does not directly inflict injury on others in private, we logically and inescapably arrive at the aforementioned conclusion 3. How we arrive at this principle is an entirely separate matter. Within the Utilitarian theory of ethics, the greatest happiness principle, that we should strive to secure the greatest happiness to the greatest number of people, is the foundation upon which all other maxims must rest. Utilitarianism descends from Epicurean hedonism in intrapersonal ethics and thus regards the aggregate of pleasure and pain as the only valid measures of the goodness or badness of an action or course of action. Like other Utilitarian theorists, Mill recognized that the greatest happiness principle could not be maintained unless we made a distinction between a social sphere, that part of a person's life which concerns others' interest and a private sphere, that part of a person's life which concerns only self-interest, while limiting the authority of society over the individual to the former. Without this distinction we would end up with a totalitarian state that could force upon the minority every whim of the majority conceivable, from what religious convictions they should hold to what foods they are allowed to eat. An individual could not be happy if all of his conduct is subject to the absolute authority of society and he is never free to pursue his self-interest. This would ultimately result in a miserable existence for most people since absolutism of every sort has historically been conducive to widespread misery while the reverse has always come as a result of expanding individual liberty and protecting property rights. The private sphere consists in one's personal autonomy and private property while the social sphere consists in what could be considered the commons or any places where the public gathers. Mill further notes that this distinction is derived from the distinction between duties to the self-only and duties to others, which are twofold: restraint from injuring the interests of others and bearing one's share of the burden of defending a society's members from injury and molestation from both foreign and domestic threats 4. In terms of moral virtues, our duties to ourselves encompass prudence, temperance, and courage. Our duties to other members of society encompass justice. We intuitively understand why actions that concern only self-interest should only be subject to the duties one has to his self. It is self-evident and requires no further elaboration. But perhaps duties to society require further explanation. At the outset, primates created societies for mutual protection against predation. Of course since humans aren't really subjected to the food chain anymore we can equally conceive of predation as persons who wish to harm others. The origin of society in not considered in the essay "On Liberty", but it is pertinent to understanding the twofold duties to society.

       As we established earlier, the manner in which a person conducts himself within his own private sphere is solely his concern provided he does not directly inflict injury upon others in private. It is evident from previous considerations that if a person's conduct directly harms only himself, he disregards a duty only to himself and should be free to carry out such conduct at his own discretion. By deduction, it follows that consuming psychoactive substances, in and of itself, is conduct that concerns only one's self-interest and therefore it is at worst a breach of duties to the self, or what could be commonly termed a vice (i.e. imprudence). It is not an injustice since injustice necessarily entails a breach of social obligations. Now, it could be said to cause emotional pain to other people (i.e. loved ones), but this consideration is a non-starter for a counter argument since there is no duty to please everyone; such a duty would be impossible anyway 5. Any number of actions that we don't consider crimes could be construed as such if we started from this premise. Apostasy from one's paternal religion, political Facebook posts, and crude jokes could all be made legally punishable if we started from the premise that conduct which causes emotional pain to others warrants prohibition. Mill also notes that being preferred in any competition, whether it be the job market or a sporting event, may cause emotional pain to those who lose such competitions, but it is in society's long term interest not to provide immunity from suffering to disappointed competitors 6. Another rejoinder against this position is that drug use can lead to violent crime, but this argument amounts to a slippery slope fallacy and is not sound unless every instance of illicit drug use leads to violent crime. Given the number of people who self-reported using illicit drugs (22.6 million or about 9% of the population) far exceeds the number of people incarcerated (about 2.2 million or about 0.9% of the population) and even more so the number of people incarcerated for violent crimes, it stands to reason that most drug offenders are not caught nor do they commit violent crimes. Furthermore, the FBI estimates that violent crime rate was 372.6 offenses per 100,000 people in 2015 7. If illicit drug use leads to violent crimes in every instance or even in most instances it would be much higher than this. The same slippery slope argument could be made against gun ownership, alcohol consumption, allowing people to have knives, allowing political protests, or even allowing heated arguments. If the State were to restrict every conceivable activity that could possibly lead to a violent crime all individual liberty, including freedom of speech would be completely wiped out and we would descend into totalitarianism.

       Every duty has a corresponding right. Thus, the distinction between personal conduct that only injures the person acting and social offenses against other members of society is a differentiation not only between duties to self and duties to others but also between negative rights and positive rights. For instance, there is a positive right to protection from injustice, which requires each person to share part of the burden of defending other members of society. We recognize positive rights not only for victims of crime (e.g. the right to restitution) but also for offenders such as the right to a public jury trial and the right to a public defender. Negative rights are much more extensive and entail all personal conduct that concerns only the good of the agent (the private sphere) as well as social interactions that people voluntarily enter for their mutual enjoyment. Positive rights are definite and few in number while negative rights are indefinite and not fixed in number.

       If restricting what a person can consume were to be considered a right, it must obviously be considered a negative right since it does not involve compelling a person to perform some labor for another. It would be absurd to contend that society should have a negative right to restrict what a person can put in his or her own body. People cannot delegate rights to society, or rather the State acting on behalf of society, that they do not have as individuals. To admit the contrary we would also have to contend that one person has a negative right to restrict what another person consumes or that each person has a duty to restrict what other people can consume. Criminal law properly permits people to use force to protect themselves against the imminent threat of murder, assault, rape, robbery, criminal trespass and other violent crimes. Likewise, it permits civilian bystanders to intervene in order to stop such crimes from occurring. In other words, a person has a negative right to not have these crimes committed against them; they have negative rights to not be murdered, assaulted, raped, robbed etc. As a corollary we would also have to permit people to use force to prevent others from using restricted substances: to initiate violence against a person to prevent that person from putting something in their own body or to break into their home to stop them from consuming a certain substance. Granting this as a negative right is absurd on its face because it consists of committing a crime to prevent a crime and therefore negates the very definition of a negative right. As Mill notes, 'advice, instruction, persuasion, and avoidance by other people are the only measures by which society can justifiably express its dislike or disapprobation of a person's conduct that concern the interests of no other person except himself 8.'

       Not surprisingly, Mill arrived at similar conclusions about alcohol prohibition and the temperance movement as a whole. In his essay 'On Liberty', he describes the failure of the Maine Liquor Law, which several states repealed due to the infeasibility of enforcing it, and the frenzy to enact a similar law in Britain. Mill concedes that alcohol consumption can be injurious to people, but understands that prohibiting a person from using it constitutes a misapprehension of justice and rights. The idea of 'social rights' was the main defense of prohibition used by the Alliance, the mainstay of the temperance movement in Britain, but as Mill discerned, this idea of rights is incoherent and if applied across the board would lead to the complete deprivation of liberty. The argument maintained that the sale of alcohol violates the citizens' right to security by creating social disorder, violates their right to equality by deriving a profit from misery they are taxed to support and violates their right to free moral and intellectual development by demoralizing society from which they have a right to mutual aid 9. Mill notes that this doctrine is based on the implicit premise that everyone has a vested interest in each other's moral, intellectual, and physical perfection, which should be defined according to each person's standard of moral, intellectual and physical perfection. If drawn to its logical conclusion it would justify every deprivation of freedom except holding opinions in secret 10. Mill uses the distinction between duties to the self and duties to others, derived from the distinction between personal conduct that jeopardizes only self-interest and social offenses that also jeopardize others' interests to make a counter argument against alcohol prohibition, on the basis that if a person is not accountable to society for his actions, in so far as they concern only his own interests then he should be free to consume alcohol. Being intoxicated is not in and of itself a breach of social obligations. It does not breach one's duties to others unless it is coupled with some activity in the public such as driving, operating a boat (unless one has a private lake), or performing a civic duty.

       In a general sense, the same restrictions applied to the consumption of psychoactive substances could also be extended to food. If the State is permitted to regulate what psychoactive substances its citizens are allowed to put in their own body for their own good why not extend the same consideration to food and permit the State to dictate its citizens' diets. After all, eating bad food can lead to a public health crisis, cause disease, and create widespread misery. In fact, according to the CDC, type 2 diabetes and poor eating habits have claimed more lives per year (76,488 fatalities in 2014) than all drug overdoses (about 47,000 during the same year) 11. Fatalities caused by drug overdoses do not even make the top ten leading causes of death. If we were to apply the logic behind the war on drugs to its fullest extent we would reach the absurd conclusion that the State should prohibit people from eating certain foods that are detrimental to their health and perhaps mandate that they eat certain foods that are good for them. There are already states that do this much. Twenty states prohibit the sale of raw milk for human consumption (Louisiana is one of them) and a further seventeen states prohibit the retail sale of raw milk. Wisconsin prohibits the sale of ungraded butter and several cities in the U.S. prohibit children from selling homemade lemonade. But here too, government regulation of what foods people are allowed to consume have resulted in a similar outcome as regulating what psychoactive substances they are allowed to use. The fact that nearly 40% of US citizens are obese and over 2/3 are overweight is a grave indication that the FDA has miserably failed to protect 'public health.' In fact, the federal government greatly contributes to the obesity epidemic and other public health crises by subsidizing corn production used to make corn syrup in junk food. The decision of which foods a person should consume, like the decision to use psychoactive substances, should be left to the sole discretion of the person who's self-interest is jeopardized by a bad decision and the State should not restrain a person's liberty to choose the foods he wishes to consume.

       The failed legacy of the war on drugs is evident its outcome. Forty years and over a trillion dollars later, drug epidemics and overdose fatalities continue to plateau even while state and federal spending increases. But the paradigm itself is based on a false premise that fails to make the crucial distinction between personal conduct that concerns only one's self-interest and social conduct that concerns the interests of others as well. This subsequently leads to a failure to distinguish between duties to self, duties to others and both of their corresponding rights. When this first principle is applied to the issue at hand we inevitably arrive at the conclusion that the state should not regulate the use of psychoactive substances (or dictate which foods it's citizens are not allowed to eat) except when their use is coupled with public activities.

Side Note: Phil313 this was not plagerized


1. CDC. “Prescription Opioid Overdose Data.” Center for Disease Control and Prevention. Last modified 16 Dec, 2016. Accessed March 17, 2017.
2. Manchikanti, Laxmaiah, MD et al. , “Opioid Epidemic in the United States,” Pain Physician 15, 2150-1149 (July 2012): ES9–ES38, accessed April 15, 2017,
3. John Stuart Mill, On Liberty (Ontario: Batoche Books Limited, 2001), 73.
4. Mill, 69.
5. Mill, 77.
6. Mill, 86-87.
7. FBI. “FBI Releases 2015 Crime Statistics.” Federal Bureau of Investigation. Last modified September 26, 2016. Accessed April 19, 2017.
8. Mill, 86.
9. Mill, 82 - 83.
10. Mill, 83.
11. CDC. “Deaths and Mortality.”Center for Disease Control and Prevention. Last modified March 17, 2017. Accessed May 1, 2017.

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