But like many, I’m put off by David Brooks’ column today for the weakness of his argument against what Washington and Colorado have done in legalizing marijuana.
I don’t think people should use drugs. When Tina Brown tweets that “legal weed contributes to us being a fatter, dumber, sleepier nation even less able to compete with the Chinese,” I think she sounds kind of hokey but she’s probably right. I also agree with Brooks himself that
“…on the whole, I think being stoned is not a particularly uplifting form of pleasure and should be discouraged more than encouraged.”
Okay — but we do not and should not ban everything that causes harm. Or at the very least, it’s a prudential question rather than an absolute one. You wouldn’t know it from the way some of our politicians talk and legislate, but government doesn’t exist for the sake of making us all the best possible competition for China, or to press us single-mindedly toward whatever it deems to be the moral pinnacle at any particular moment (ahem). It exists to maintain the basic conditions without which human flourishing and happiness are impossible. It cannot make up for all human weaknesses, nor should it try.
Brooks’ smaller error, I believe, is his assertion that the states legalizing pot are “encouraging” its use. I’m not necessarily saying they made the right choice, but I don’t think this follows. This isn’t like gay marriage, in which the state is actually called upon to sanction something specific. The legalization of one thing or another — even after a long period of prohibition — is simply an absence of prohibition. We don’t say the state is “encouraging” other activities it fails to bar under penalty of law. As far as I’m aware, no law in any state requires you to wipe after using the restroom. But it’s hard to say that such oversights constitute “encouragement.” Some things are just obviously better to do– Brooks writes that he and nearly all of his friends found that abstaining from weed was obviously better, and it wasn’t because of the law.
The greater shortcoming of Brooks’ column is that it doesn’t grapple with the central issue, even if you fully accept his moral premises. If we decide to decriminalize or even legalize marijuana, it will not be because we want people to smoke it. It will be because we decide, on aggregate, that the war against drugs is more destructive than whatever harmful effect we expect it to prevent or mitigate.
I don’t know precisely what Saint Thomas Aquinas — a great believer in the pedagogical value of human law — would say about laws against marijuana in today’s context. But I suspect he’d say that, even on the strict assumption that weed is morally damaging or evil, we should not reflexively cling to legal prohibition unless our circumstances and customs justify it.
Saint Thomas believed human law should encourage virtue and discourage vice. But he also writes that the law “does not forbid all vicious acts, by the obligation of a precept, as neither does it prescribe all acts of virtue.”
To the question of “whether it belongs to the human law to repress all vices,” he answers in the negative:
[H]uman law is made for the multitude of men, and the greater part of this multitude consists of men who are not perfected in virtue. And so not all the vices from which virtuous men abstain are prohibited by human law. Instead, the only vices prohibited are the more serious ones, which it is possible for the greater part of the multitude to abstain from—especially those vices which are harmful to others and without the prohibition of which human society could not be conserved.
This is not to say Thomas was a libertarian. The point is that he saw plenty of wiggle room for questions of public policy where vice does not disrupt the public order. If he could see that, embracing as he did a robust connection between law and virtue, then it should be a relatively uncontroversial point today, when the moral ideas that undergird our legislation (and there’s always some kind of moral idea) are far more mutable.
Thomas understood that those subject to the civil law are imperfect — many of them very imperfect. He argues that if the law criminalizes too much for people to keep up, then “the precepts are despised, and those men, from contempt, break into evils worse still.” Overcriminalization does breed contempt for the law, but he could also be describing our violent black-market drug trade.
Even proponents of prohibition will usually agree that the act of smoking weed does not on its own assault the civil order or harm others. At that point, the question should be a comparison between the ravages of the drug war itself and any additional damage we expect drugs to do if they become legal.
Right now, the public seems to be leaning toward the idea that the drug war is worse than the drugs — which is a reversal from where we were a few years ago. But that isn’t self-evident either — it’s a judgment call that people will have to make.
The argument to legalize (or at least decriminalize) will cite the wasted human capacity that is rotting in our prisons, the racial disparity of enforcement, the proliferation of paramilitary police tactics (and thus costly or deadly police mistakes), the intrusive financial surveillance (what would happen to the drug war if we replaced the income tax?), and the violence of the black market. The argument in opposition will probably start with the practicality (or lack thereof) of keeping pot away from children and young adults, since those who smoke weed habitually before a certain age suffer consequences to brain development (as Brooks mentions).
And we might end up legalizing some or all drugs, and then discover entirely unexpected reasons why it’s a mistake — in which case we’d have to think about it again. When it comes to such judgment calls, Thomas would argue that the answer can change with circumstances and customs.
That’s at least a flavor of the argument we should be having on this subject, in place of vague arguments that smoking pot is a subjectively unsatisfying, useless, or professionally detrimental activity. All of these things might be true, but none of them is sufficient reason to ban anything.