That messy freedom thing

Legend has it that, at a Cabinet meeting, all of Abraham Lincoln’s secretaries voted “nay” on a proposal, after which the president raised his hand and said “the ayes have it.”

The story comes to mind when considering the debate over whether to legalize recreational marijuana in Arkansas.

There are dozens of reasonable arguments against the idea being put forth by intelligent, well-meaning folks, and only one of significance in its favor.

As with Lincoln’s “aye,” however, that lone argument carries the day, because it is an argument on behalf of personal freedom. A yes vote will have the effect of expanding it, a no vote the effect of perpetuating its restriction.

The hunch is that legalization of marijuana is going to cause an assortment of problems, some of which will flow from the inclusion of dubious provisions and exclusion of desirable ones in the actual content of the initiative.

At the least, those who support legalization should be honest enough to admit that it will probably make dumb people who do dumb things do even more dumb things.

But even if we knew for certain that many of the negative consequences predicted by critics would be realized, a yes vote on Issue 4 would still be justified because freedom is a value; indeed, the highest value, and values aren’t amenable to cost-benefit analyses. An instrumental argument can probably be made on behalf of the concept of individual liberty, but the attempt would be demeaning, akin to placing humanity’s greatest achievement (the free society) on a par with efficient trash collection and road repair.

It isn’t a matter of dollars and cents or the “welfare of society” (a dangerous phrase usually invoked to restrict individual liberty for some hazy collective benefit), but principle — that legal adults should be free to engage in whatever behavior they wish so long as it doesn’t directly and unmistakably injure others.

Without such a decision-rule to guide us, without recognizing that the concept of the “victimless crime” is logically incompatible with freedom, the substance of our freedoms becomes merely arbitrary, little more than a set of random dispensations bestowed from on high and thus perpetually in danger of being revoked.

A massive burden of proof should consequently be placed on the shoulders of those seeking to restrict even the most trivial expressions of freedom — in this case they must convince us that an otherwise law-abiding fellow sitting on his back deck smoking a joint after dinner, minding his own business, is actually a menace to society who should be jailed.

Without the ability to persuade us on the matter in such a fashion, as a question of just punishment for specific individual behavior, “social costs” and other ancillary lines of argument become irrelevant, even vaguely offensive.

Great confusion occurs on all this when we fail to understand that freedom is not a means toward an end but the ultimate end in itself toward which all means aim. It is why we have everything that can be considered institutional and/or political, everything we have been striving for since Thomas Jefferson wrote “life, liberty, and the pursuit of happiness” 246 years ago.

The founders didn’t shirk from placing the highest value on liberty because its exercise might sometimes cause problems. To the contrary, they recognized that problems and complications will be forever inherent in the concept itself, but are insufficient grounds for denying it. (Freedoms like speech, religion and assembly bring assorted problems and complications as well, but we seldom think in those terms because, again, we would not sustain a free society for long if we did.)

Granted, ingesting marijuana would appear to constitute a rather trivial component of freedom, but within that triviality can be found the same logic that buttresses the more important and obvious components thereof. It might be the case that the firm defense of what appears to be a rather frivolous exercise of freedom stands as a first line of defense that adds extra insulation for what many consider to be the crucial manifestations.

Freedom is indeed seamless and indivisible in this sense, and we should probably be unsettled by any efforts to parse the concept, to distinguish more important freedoms from lesser ones and thereby treat it in a hierarchical, relative fashion. We need to be able, for purposes of consistency upon which the rule of law and equality before it depends, to persuasively explain why we allow freedom sometimes but not others.

For those with an insufficient appreciation of freedom, there will always be plenty of reasons lying about to restrict it in this or that particular case, and the argument that we shouldn’t permit a particular freedom for all because it will be inevitably abused by some is actually an argument on behalf of prohibiting all freedom.

Thus a hypothetical: If data could be presented proving beyond doubt that societies that permitted freedom of speech were much more violent, unstable, and poorer, would it be desirable to prohibit freedom of speech?

Unfortunately, and likely unintentionally, many of the arguments now being put forth in opposition to legalization of marijuana contain within their reasoning the answer “yes.”