IV. DRUG USE AND CONSTITUTIONAL PRIVACY
I have thus far set forth a number of negative arguments to show why various moral arguments condemning drug use are mistaken. The remainder of the chapter will consider the affirmative case for allowing forms of drug use, that is, for the existence of rights of the person that include the right to use drugs. In this way, the scope and limits of this right can be clarified, and its relation to the personal ideals secure from state intervention can be addressed.
As Chapter 2 argued, the constitutional right to privacy may be interpreted, consistent with the human rights perspective embodied in the Constitution, as subjecting the scope of the criminal law to constitutional assessment and criticism in terms of the autonomy-based interpretation of treating persons as equals. The United States is a constitutional democracy committed to the conception of human rights as an unwritten constitution, in terms of which the meaning of constitutional guaranties is to be construed. It is wholly natural and historically consistent with constitutional commitments to regard the autonomy-based interpretation of treating persons as equals as the regulative ideal in terms of which the public morality, which the criminal law expresses, is to be interpreted. Sometimes this thought has been expressed, as a rough first approximation, in terms of the harm principle, the principle that the state may impose criminal sanctions only on conduct which harms others. The present account has tried to reformulate the thought in terms of the autonomy-based interpretation of treating persons as equals, and has tried to show how this conception imposes specific constraints on the kinds of principles that may permissibly be enforced by the public morality. The traditional idea of "harm," for example, appears in the account, but is interpreted in terms of the rights of the person, in contrast to Mill's utilitarian reformulation.[275]
A corollary of this way of thinking is that, when the scope of the criminal law exceeds such moral constraints, it violates human rights. The constitutional right to privacy expresses a form of this moral criticism of unjust overcriminalization, and may be understood as a convergence of three viewpoints. These include, first, the view that the traditional moral argument for criminalization is critically deficient, and, indeed, demonstrably fails to respect human rights. A second element is an antipaternalistic feature. The still extant force of the invalid traditional moral arguments distorts the capacity to see that certain traditionally condemned life choices may be rationally undertaken. Paternalistic interference is tolerated and even encouraged, when, in fact, such interference cannot be justified. Third, there is a strong autonomy-based liberty interest in protecting human dignity from the invasions of moralism and paternalism.
In light of this convergence of factors, it is natural to expect that the constitutional right to privacy would have been aggressively invoked to invalidate prohibitions on drug use, as it was in sexual[276] and, more recently, right-to-die contexts.[277] In fact, aside from a free exercise of religion case not directly relevant to constitutional privacy issues, in only one notable case, Ravin v. State[278] has a court unequivocally pursued such a privacy argument to strike down prohibitions of marijuana use in the home. Even the Ravin court, however, refused to attach the right to drug use in itself, finding the privacy right to arise out of the home context instead.[279] In short, American courts seem disinclined to pursue privacy arguments in contexts of drug use because they fail to identify drug use as a basic life choice.
In my view, this judgment cannot withstand critical examination. In order to understand why decisions to use drugs are embraced by the constitutional right to privacy, it is necessary to draw together earlier observations regarding the idea of human rights, the values of dignity and moral personality that it encompasses and should protect, the unjust moral argument that often underlies prohibitions of drug use, and the necessary implications of these ideas and values for the protection of certain forms of drug use. Even if decisions to use drugs were, in fact, rarely or never made or acted on, the right to so decide is, for reasons now to be explained, fundamental.
I have interpreted the human rights perspective in terms of the autonomy-based interpretation of treating persons as equals, which includes respect for the higher-order interests of persons in freedom and rationality. One central component must be respect for the capacity of persons—beings capable of critical self-consciousness—to regulate and interpret their experiences in terms of their own standards of reasonable argument and evidence. Thus, both historically and as a matter of moral principle, respect for independent religious conscience and for principles of religious toleration have been at the heart of evolving ideas of human rights. Historically, respect for religious belief has expressed what is today regarded as the deeper principle of respect for individual conscience, the right of persons independently to evaluate and control their own experience.[280]
Commitment to this basic moral principle requires a neutral respect for evaluative independence. But this principle is, as we have seen,[281] violated by the moral perfectionism that has dominated the American approach to drug control. Indeed, this moral perfectionism attacks the very foundations of evaluative independence; for it seeks to inculcate through law a kind and quality of subjective human experience modeled after a religious ideal of rigid self-control dedicated selflessly to the good of others. In the place of independent control over and evaluation of one's own experience, we have a reigning orthodoxy. Majoritarian legislatures seek to enforce a kind of secularized version of the religious technology of self-mastery.[282] The state, consistent with the autonomy-based interpretation of treating persons as equals, has no just role adjudicating among or preferring, let alone enforcing, one such technology over another. Such a use of state power is precisely the form of content-based control over ways of life, thought, and experience against which constitutional morality rebels.[283] Indeed, the enforcement of perfectionist ideals expresses precisely the contempt for autonomous evaluative independence and self-control that should trigger appropriate constitutional attack and remedy.
It may be objected that drug experience is not the kind of subjective experience protected by constitutional principles of toleration.[284] This is not an argument; rather it is an expression of the long American tradition of the public morality. This tradition cannot, as has been shown, be sustained. It is based on untenable forms of moral argument and is, on examination, inconsistent with deeper constitutional values to which all espouse fundamental allegiance. It fails to observe constitutional constraints on the kind of harm that may be the object of criminal penalties; indeed, ideologically, it seeks supremacy for its own model of self-mastery through the criminal law in the way that constitutional morality clearly forbids. In short, since this common sense of public morality cannot be sustained, higher-order interests in freedom and rationality would identify respect for choices to use drugs as an aspect of personal dignity that is worthy of protection under the constitutional right to privacy, and call for its implementation by courts and legislatures.[285]
A fair-minded respect for this right will assure respect for the pluralistic cultures and ways of life which different patterns of drug use embody and which have been heretofore lacking in America's cultural life. Patterns of drug use are implicitly ideological: alcohol use, for example, is often associated with cultural patterns in which aggressiveness plays a central role; use of marijuana, in contrast, is associated with more peaceful and inward ways of life.[286] Respect for the right of drug use would preserve individual and subcultural experience and experiment from a majoritarian cultural hegemony, rooted in a crude and callously manipulative utilitarianism. There is no good reason why this utilitarian ideology has been permitted to go unchallenged as the governing American ideal in matters of drug policy; it trivializes our vales into simplistic subservience to technological civilization[287] and fails to take seriously American ideals of human rights and their implications for a pluralism of spiritual perspectives.
We may summarize the implications of this right to use drugs in terms of the background moral principles, expressive of the autonomy-based interpretation of treating persons as equals, which define its limits. The principle of autonomy in matters of drugs does not apply to persons presumably lacking rational capacities, such as young children, nor does it validate the use of particular drugs in circumstances where they would lead to the infliction on others of serious bodily harm. There is no objection, for example, to the prohibition of drugs whose use demonstrably leads to violence[288] or to limitations of drug use in certain contexts, such as before driving. In addition, the liberty of drug use includes the right of others to avoid involvement in the drug experience. There would be no objection therefore, to reasonable regulations of the time, manner, and place of drug use, or of the obtrusive solicitation of drug use.
Finally, it is important to remind ourselves, yet again,[289] that there are limits to an argument grounded in human rights of the kind here presented. To say that a person has a human right to do an act is to make a political and legal claim that certain conduct must be protected by the state from forms of coercive prohibition. To assert the existence of such a right is not to assert that it should be exercised. The latter question is an issue of personal morality. Its disposition may turn on considerations that have no proper place in questions of political and legal morality.[290]
To say, therefore, that people have a human right to use drugs is not to conclude that everyone should exercise this right. For example, a person might justifiably invoke certain perfectionist ideals in declining to use drugs. These ideals might include religious dedications or purely secular conceptions that the control and cultivation of aspects of personal competence and subjectivity are inconsistent with drug use. Certainly, such ideals cannot justifiably be invoked to qualify our general rights of autonomy, for self-respect and fulfillment do not require conformity to such ideals. Even as personal moral ideas, however, perfectionist notions may be criticized as inhumanly rigid, masochistically manipulative, directed at questionable moral aims, and insensitive to the values of spontaneity and humanely varied experience. Nonetheless, an individual may justifiably espouse a moral ideal, regulate his or her life accordingly, and criticize others for not observing as humane an ideal in their personal lives. However, legal enforcement of such an ideal wrongly imposes a personal ideal upon persons who may find it unfulfilling or even oppressive and exploitative.
