Michael Rappaport on how Hayek's use of the Ninth and Fourteenth Amendments supports traditional rights - and originalism.
I have long taught American constitutionalism. As I teach it, the Founders created institutions that mitigate against tyranny and against unwise, hastily-considered, and factious laws. While no country can simply eliminate the possibility of unwise laws, the Founders believed we could simulate wisdom in human affairs even when enlightened statesmen are not at the helm by creating conditions for due deliberation. They hoped to maintain this through the creation of many decision points in our separation of powers system. Bicameralism, the presidential veto, and judicial review ensure that many eyes pass over each proposal before it becomes law. Amendments are not only harder to get through Congress, but they require state approval. These are not guarantees, but the Founders’ frame of government worked really well as long as the Constitution of 1789 remained operative.
In class, I put this theory to the test: I challenge students to name the most unjust, unwise law ever passed under the regular procedures of the American constitutional system. Answers recur. “Japanese internment.” That was an executive order, not legislation passed through the system. “American slavery.” While that institution is both unjust and unwise, it cannot be said that the American constitution introduced slavery. The answer most often given, however, is “Prohibition,” by which my students mean a combination of the 18th Amendment, which made the manufacturing, transportation, and sale of intoxicating beverages illegal, and the Volstead Act, whereby Congress, over President Wilson’s veto, passed enabling legislation for this amendment. It is at this point that I, a teacher in the devil’s advocate tradition, defend Prohibition—much to my students’ horror.
Prof. Gamble’s essay describes how religious zeal combined with civic righteousness, progressive technocracy, and faith in a new democratic era to bring Prohibition to America. It is not exactly mudslinging when he calls it the “quintessential reform of the Progressive Era,” but it is no compliment. Prof. Gamble’s history raises fundamental questions of public justice. Were these laws tyrannical and unwise? On what grounds can we evaluate such claims? Is opposition to Prohibition a question of principle or prudence? Does Prohibition even deserve my students’ opprobrium?
Students usually defend the anti-Prohibition position on libertarian grounds. “No government,” they say, “should ever tell people what they can and cannot put in their bodies.” This proves too much. Should there be no evaluation of the safety of medical drugs? Should there be no concern for preventing the use of poisons or for limiting access to dangerous “recreational” drugs? Should there be no drinking age? Should there be no age of consent for sex? What goes into one’s body can sometimes be an object for public concern; the question is when and how. There are very few unvarnished principles in politics; and no theory can avoid the need to recognize exceptions.
It is necessary to go beyond such principles, typical of undergraduates, and to address serious claims about Prohibition as a complex of laws. “Alcohol prohibition was a failure,” argues Mark Thornton in a classic Cato article from 1991, that validates libertarian principles generally that “prohibition of mutually beneficial exchanges is doomed to failure.” Prohibition, Thornton argues, fostered the rise of bootleggers and organized crime. The law did not curb the demand for intoxicating beverages (and supply may indeed have gone up, as people wanted a taste of the forbidden fruit), so supply met demand in the shadows; previously legitimate business was driven underground, where it became violent, anti-social, and difficult to control. This same dynamic (where legitimate, unharmful action is made harmful by being made illegitimate) happens in many walks of life. So in this line of reasoning, reduce the stigma and you tame the practice.
The logic of Thornton’s argument against alcohol prohibition also serves as an indictment of America’s policy of drug prohibition. So, for the adherents of the libertarian position, marijuana and heroin use, become more problematic because of their status as illegal drugs. The ban itself shifts social behavior and expectations, to say nothing of the way it encourages government intervention into private life. By contrast, Thornton and others believe that blessing these drugs with legitimacy will make them safer—and not coincidentally, tame the government as well.
This kind of argument depends on an underlying assumption about whether “mutually beneficial exchanges” should be stigmatized or whether there is a moral equivalence between drinking and drugs like marijuana. Gamble shows that prohibition raised questions of competing harms, considered in the long-term. “For good reason,” Prof. Gamble asserts, those who sought to reform our “alcoholic republic” had “blamed ‘ardent spirits’ for poverty, crime, economic inefficiency, moral degradation, and the destruction of marriages and homes.” If there is indeed a pretty close connection between crime and alcohol, or family breakdown and alcohol, or moral degradation and alcohol, then banning alcohol—or at least curtailing access to it—could be a legitimate government activity. It is necessary to weigh these imagined benefits against the costs of driving the supply for alcohol into the hands of bootleggers and organized crime.
Alcoholism and excessive drinking could, in principle, be problems that require serious public attention. Clearly the Soviets thought so! We members of a liberal society mostly deal with alcohol by regulating the secondary effects of excessive alcohol use. We allow people to drink, but drunk driving is rightly condemned as a crime and public menace. Those under the influence of alcohol may steal or assault, but we prosecute the theft and assault—not the drinking—and do not view the diminished capacity of the criminal as a legitimate excuse. Yet we nevertheless have a drinking age, to discourage unsupervised alcohol consumption by teens. We license alcohol dealers. Many locales restrict alcohol sales in supermarkets after a certain hour, in order to discourage excess consumption during party time. Mandatory closing times for bars are not unheard of. Most alcohol dealers must be licensed. We practice a species of “prohibition,” regulating the time, place and manner of drinking alcohol. So, we might legitimately ask: Did Prohibition simply take decent ideas too far?
The answer to this question depends on the nature of the threat to public order that we face, and what it might take to counter it. Such matters raise challenges to both the justice of our ends and the propriety—to say nothing of the practicality—of our means: Was alcohol such a threat in the early 1900s? Could it ever be such a threat? What would it take to eliminate that threat? Is removing the threat a proper aim of public policy or is mitigating a threat good enough for government work?
Alcohol falls into the category of things that harm some members of society, but not everyone. Much the same is true of marijuana use.
Alex Berenson’s recent book Tell Your Children: The Truth about Marijuana, Mental Illness, and Violence shows that the new marijuana, higher in THC content, causes mental illness and violent actions in a higher percentage of users than the old marijuana, but even still that a majority of marijuana users do not suffer from mental illness and violent behavior. Should the “harmless” pleasure of marijuana smoking be denied to most adults because some children and “weaker” adults may self-destruct through that use? Should the many who bend the elbow moderately and responsibly be denied the pleasure because some abuse it?
Comparing alcohol and marijuana brings us closer to the genuine public concern. These issues are bigger than the narrowly-focused and merely individual harms they directly generate, and or even their secondary effects. Each also raises fundamental questions of long-term harm and public morality. The late Harry Clor defined public morality as “a body of norms rooted in long-range civic interests and generally recognized as such” including “judgments about the worthy and unworthy—and ultimately ideas of the good and the appropriate for human beings.” Civil institutions including the law have something to do with building and sustaining public morality. Our laws concerning drugs and alcohol are attempts to fulfill a vision of a good society, the morality of a public worth living in and celebrating.
Would people in a good society drink alcohol? Smoke pot? Take fentanyl? While there is no doubt some cultural variation on these matters (Saudi Arabia has a different attitude generally toward vodka than Russia), one can begin to answer these questions for a particular community first before proceeding to communities in general; one can ascend from American political thought to political philosophy.
Temperance and the Mean
America, as a nation with Protestant roots, fought against intemperance in the name of achieving greater self-control. Those in the Temperance movement of the 1800s were tempted to define intemperance too broadly and practice temperance too vehemently. This is one of the focuses of Abraham Lincoln’s Temperance Address (1842). Temperance advocates tended to be “impolitic and unjust.” Impolitic, Lincoln held, because a man did not like to be “driven to anything” especially when it was “exclusively his own business” or when it contradicted “pecuniary interest or burning appetite.” Unjust because the strains of anathema and denunciation whereby drinkers and manufacturers of drink were “the authors of all vice and misery and crime in the land” was simply not true.
Drinking alcohol, Lincoln showed, was universally practiced and “everywhere a respectable article of manufacturer and merchandise.” Then the kicker: Even from the beginning of its use, “it was known and acknowledged, that many were greatly injured by it; but none seemed to think the injury arose from the use of a bad thing, but from the abuse of a very good thing. The victims of it were pitied, and compassionated, just as now are the heirs of consumptions, and other hereditary diseases. Their failing was treated as a misfortune, and not as a crime, or even as a disgrace.” The same is true of distilled spirits today.
Alcohol is less dangerous, less liable to abuse than hard drugs like heroin, cocaine, and opioids. It also causes far fewer problems in those who consume it. More than half of Americans have, according to surveys, had a drink in the last month and half of those folks have drunk to excess in the past year. Alcohol-related deaths, while numerous in absolute numbers (averaging around 88,000 per year in recent years according to the CDC), are around 2.5 people per 100,000 population. Hard drugs, in contrast, are used by far fewer Americans. Heroin is used by less than a half a million Americans, but caused over 15,000 deaths in 2017; synthetic opioid use is even lower, but it caused around 28,000 deaths in 2017. Such drugs are more addictive, more dangerous, and less liable to moderate use than alcohol.
Maintaining legal sanctions for those who would use such drugs is part of a society-wide effort to keep the use of such drugs low. Legal sanction helps stigmatize use. This is the contribution of public morality. We do not and cannot look with equanimity on those who peddle and produce drugs and we cannot treat drug use with indifference if we are to maintain a self-governing republic. Hard drugs like fentanyl and other opioids are not (yet!) universally practiced or consumed at anywhere close to levels alcohol is consumed. They are not considered an object of respectable manufacture and merchandising. This is for good reason. Those who take controlled substances outside of the care of a doctor potentially endanger themselves, and respectable medical authorities do not defend them as a “very good thing” when put to recreational use. (Berenson’s book, for instance, debunks all of the popular ways marijuana legalization activists seek to show that its use is a “very good thing.”) Individual health and the effects on responsible, independent, industrious character are the standards used to measure what goes into one’s body. Hence, it makes sense for society to draw the line between distilled spirits and opioids, though we can debate about where the line should be drawn. The numbers who would become addicted and violent matter, and the directness of the link between the use and the corruption of individual character matters.
The problem with prohibition was thus not with the principle underlying it (that there should be some public concern with what goes into one’s body) but with the misapplication and overextension of a theoretically sound principle. Prohibition identified alcoholic spirits as “a very bad thing.” Its concern with the environment within which citizens would be educated was not misplaced, but misapplied. Its attempt to shape public morality was similarly misplaced and based a condemnation of alcohol that overstates its dangers—but its concern for public morality itself was sound. Our laws have a role in teaching what is honorable and dishonorable: legal restrictions on heavy drug use, discouragements from excessive drinking or irresponsible drinking, and many others fulfill this aim consistently with our liberal principles. Alcohol is very different in degree from (for instance) fentanyl because of the historical role in promoting sociality and conviviality that it plays in Western culture and because it is much more susceptible to moderate use—and no country can really afford to ignore that hardly subtle difference. So, I say two cheers for alcohol, but only one for Prohibition—which recognizes the dangers associated with drinking and the shaping influence of law, but not the difference between alcohol and other dangerous substances.