Obviously, if Americans ever come to enjoy freedom as a fundamental right, the state and federal drug laws would have to be much different from what they are today. Some restrictions might remain, but they would be only those that are narrowly tailored to serve a demonstrably compelling governmental interest and that have no less restrictive alternatives. The wholesale long-term incarceration of a substantial segment of the American people would cease.
In recent decades, our nationís drug laws have accounted for the fastest growing share of the nationís prison population. These laws do much to give America the highest rate of imprisonment (i.e., lowest rate of liberty) in the world.
Not only that, due to the serious social disabilities that are imposed on ex-cons, the drug laws are helping to create a whole class of economic invalids, tens of millions of people who will mostly be a net drag on our nationís vitality and strength for the rest of their lives.
The deficiencies in the ďProhibitionistĒ approach to the drug problem have been recognized and written about elsewhere and need not be repeated here. However, in doing the balance of considerations pro and con, a factor that is too often overlooked or downplayed is this:
In a nation of free people, liberty is a fundamental right.
When liberty is a fundamental right, merely having a so-called rational basis to criminalize drug-related conduct is not enough to justify doing so. Our present drug laws would not survive the strict scrutiny that they deserve.