The libertarian position on the government’s drug war is straightforward.

There should be no laws at any level of government for any reason regarding the buying, selling, growing, processing, transporting, manufacturing, advertising, using, possessing, or “trafficking” of any drug for any reason. All government agencies devoted to fighting the war on drugs should be abolished and the war on drugs should be ended completely and immediately. There should be a free market in drugs without any government interference in the form of regulation, oversight, restrictions, taxing, rules, or licensing.

Libertarians hold this position for two basic reasons.

First, libertarians believe that people should be free to pursue happiness, take risks, live their lives, and engage in economic activity any way they desire as long as their actions are peaceful, their associations are voluntary, their interactions are consensual, and they don’t violate the personal or property rights of others. That someone’s choices are deemed by others to be unhealthy, unsafe, immoral, or irresponsible is of no consequence.

Second, libertarians believe that it is not the purpose of government to prevent people from engaging in bad habits, risky behavior, or immoral activities; protect people from harmful substances, unhealthy practices, or dangerous activities; or prohibit what people can buy, sell, or consume. Every crime should have a tangible and identifiable victim with real harm and measurable damages.

There are many reasons why most conservatives support the government’s war on drugs — tradition, culture, society, religion, politics, safety, ethics, morality, science, health, propaganda, misinformation — but now we need to add one more thing to the list.

The latest conservative argument for the drug war is that since drugs interfere with “clear thinking,” government has a responsibility to restrict their use.

Timothy Hsiao is a humanities professor at Grantham University and an adjunct professor of philosophy at Park University. He holds a master’s degree in philosophy from Florida State University and is currently working towards a PhD in philosophy at the University of Reading. His “scholarly work draws on the resources of classical natural law theory to defend a broadly libertarian-conservative approach to the controversial moral issues of our time.”

His recent Public Discourse article — “The Libertarian Case for Drug Prohibition” — is adapted from his journal article — “Why Recreational Drug Use Is Immoral” — that appeared in The National Catholic Bioethics Quarterly 17.4 (Winter 2017): 605–614.

Begins Hsiao,

Many libertarians argue that we should legalize recreational drugs in the name of freedom and personal autonomy. Drug prohibition, they argue, infringes on personal freedom by denying individuals the liberty to do what they want with their own bodies. This is mistaken. In fact, it is drug legalization that infringes on freedom. Drug prohibition, not legalization, is the real pro-liberty position.

If drug prohibition is the pro-liberty position then black is white, up is down, left is right, and war is peace, freedom is slavery, ignorance is strength.

How can government’s prohibiting an action that is private, peaceful, and doesn’t violate the personal or property rights of others be “the real pro-liberty position”?

Continues Hsiao,

All should agree that one of the essential responsibilities of government is to protect and promote personal freedom. To that end, governments have an interest in restricting activities that impair, destroy, or otherwise undermine personal freedom. Now, freedom cannot flourish unless certain background conditions are met. Consider an analogy with markets. If a government wants to protect and promote markets, then it must safeguard the conditions that make a market economy possible. These conditions include the protection of life, exchange, contracts, and private property. Without these prerequisites in place, it would be all but impossible for markets to flourish.

Hsiao is entirely correct, and libertarians would certainly agree with him. How drug prohibition enters the picture requires further explanation. And once it does, we will see that what Hsiao really believes is that governments have an interest in restricting activities that impair, destroy, or otherwise undermine personal freedom, but if the government does the restricting then that is okay.

Explains Hsiao,

If the government has a responsibility to protect and promote freedom, then it must also protect and promote the conditions that make it possible. On this point, one essential ingredient of personal freedom is rationality. Choices can only be free if they are made by a person whose cognitive faculties are functioning in the right way. Reason confers on our actions a certain order and intelligibility that make them explicable and coherent. It is what makes our actions ours, such that we are responsible for them. Our ability to act freely is diminished or destroyed if we are unable to deliberate and think coherently, or if we are subject to overwhelming coercive forces. Freedom isn’t just the bare ability to do something; it is the ability to act under the influence of properly functioning cognitive faculties. Accordingly, since the government has a responsibility to protect personal freedom, it must also protect and promote a culture that is conducive to clear thinking and discourages impaired thinking. The government, therefore, has a responsibility to restrict activities that impair, destroy, or otherwise undermine clear thinking.

This is the first of two places in his article where Hsiao redefines freedom. Evidently, no one should have the freedom to act irrationally, unintelligibly, inexplicably, incoherently, or irresponsibly.

If drinking too much coffee, having a bad case of the flu, going through a divorce, being stressed out at work, or not getting enough sleep can undermine clear thinking, then does the government have the responsibility to restrict the consumption of coffee, compel everyone to get a flu shot, prohibit divorce, make the workplace less stressful, and require that everyone gets enough sleep?

Hsiao doesn’t say, but he is certain that the government should restrict people’s access to drugs.

He continues,

Recreational drug use interferes with clear thinking. The very activity is centered around the consumption of an intoxicating substance that impairs one’s cognition. The whole point is to impair one’s ability to think clearly, which in turn impairs one’s ability to act freely. Thus, recreational drugs should be legally restricted because their use is incompatible with the vision of a freedom-respecting liberal state.

The immediate effects of drug use, which is what Hsiao is primarily concerned with, can include rapid mood swings, delusions, hallucinations, paranoia, a distorted sense of time and self, clouded mental functioning, anxiety, dysphoria, paranoia, altered judgment, cognitive impairment, and psychomotor impairment. Those effects “are by themselves enough to show that recreational drug use is intrinsically antithetical to the good of freedom and personal autonomy.”

To be perfectly clear, Hsiao sums up his argument so far:

One of the government’s chief responsibilities is to protect and promote freedom. In order to do this, it must also protect and promote the underlying conditions that make freedom possible, one of these being clarity of thought. The government therefore has an interest in cultivating a culture that encourages clear thinking and discourages impaired thinking. Since recreational drug use impairs the user’s ability to reason, governments should therefore enact legal restrictions on recreational drugs. In other words, if you value freedom, then you should oppose the legalization of recreational drugs.

Notice what Hsiao is not saying. He is not saying that recreational drugs should be restricted because their use is immoral, addictive, unhealthy, or dangerous. He is not saying that recreational drugs should be restricted because their use might lead to violence, child neglect or abuse, financial ruin, or criminal activity. He is saying only that recreational drugs should be restricted because their use impairs “clear thinking.”

What kind of restrictions on drugs should the government adopt? Hsiao says that “the government should prohibit those substances that have no legitimate use aside from recreation.” Prohibition will drive down the demand for drugs in two ways: (1) by driving up the cost of drugs, and (2) by threatening people with legal punishment.

And who decides whether something has no legitimate use aside from recreation? Why, the government, of course. And that brings us to Hsiao’s problem. He looks to the government to solve problems and regulate behavior. Libertarians don’t believe that it’s a legitimate purpose of government to restrict, prohibit, or be concerned in any way with anyone’s mode of recreation as long as it is peaceful and doesn’t violate the personal or property rights of anyone else. Hsiao does.

Resumes Hsiao,

Where many libertarians go wrong in their support for drug legalization is in their conception of freedom. If we think of freedom as just the bare ability to make choices, then it is understandable why one might think that drug restrictions infringe on personal freedom, since such restrictions do limit our ability to make a range of choices. But not all choices are worth respecting. As I noted earlier, we cannot respect freedom without also respecting the conditions that make freedom possible. One such condition is the preservation and maintenance of properly functioning cognitive faculties. The free choices we should respect, therefore, cannot seek to undermine this condition. Since recreational drug use seeks to undermine clear thinking, the choice to partake in such an activity should not be respected. Indeed, it would be bizarre to argue that the state’s goal of promoting freedom is served by allowing its citizens to impair their own freedom.

Again, who decides whether a choice is worth respecting? Why, the government, of course. And if citizens are not allowed by the state to impair their own freedom, then they are not free at all.

Hsiao also rejects the libertarian argument that “there is a moral right to use drugs that is derived from our right of ownership over our own bodies.” He believes that “it does not follow from the fact that one owns himself that his rights over his own body are absolute and unlimited.” But of course they are. If one’s rights over his own body are not absolute and unlimited, then no one fully owes himself. He shares ownership with the state.

Concludes Hsiao,

To be clear, the argument I’ve offered here is not that recreational drug use should be restricted because it is unhealthy or immoral. Rather it is that recreational drug use impairs and undermines the conditions for freedom, and so the legalization of recreational drugs is incompatible with the vision of a freedom-respecting state. As John Stuart Mill said, “the principle of freedom cannot require that [one] should be free not to be free. It is not freedom, to be allowed to alienate his freedom.” A society that values freedom must cultivate a culture that encourages clear thinking and discourages impaired thinking. For that reason, recreational drugs should be legally prohibited. Libertarians, therefore, should stand opposed to drug legalization.

This is a gross abuse of John Stuart Mill (1806–1873). Mill, in chapter 5 his book On Liberty, made the comment Hsiao quotes in the context of someone’s selling himself into slavery:

In this and most other civilized countries, for example, an engagement by which a person should sell himself, or allow himself to be sold, as a slave, would be null and void; neither enforced by law nor by opinion. The ground for thus limiting his power of voluntarily disposing of his own lot in life, is apparent, and is very clearly seen in this extreme case. The reason for not interfering, unless for the sake of others, with a person’s voluntary acts, is consideration for his liberty. His voluntary choice is evidence that what he so chooses is desirable, or at the least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it. But by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. He is no longer free; but is thenceforth in a position which has no longer the presumption in its favour, that would be afforded by his voluntarily remaining in it. The principle of freedom cannot require that he should be free not to be free. It is not freedom, to be allowed to alienate his freedom.

Hsiao must have missed what Mill wrote about freedom in the first chapter of his book:

The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to attain it. Each is the guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

A free society has to include the right of people to take risks, practice bad habits, partake of addictive conduct, engage in self-destructive behavior, exercise poor judgment, live an unhealthy lifestyle, participate in immoral activities, commit vice, and undertake dangerous actions — including the use and abuse of drugs — as long as they don’t infringe the rights of others in the course of doing these things. Libertarians, therefore, should stand in support of drug legalization.