Legalization, Temperance, and the Art of Persuasion

As a Republican “in the wilderness,” I listened with new ears to the most recent Intelligence Squared debate considering the motion to legalize drugs.  My views having transitioned from Against to Undecided, I expected the proponents’ arguments on this occasion might hit their mark.  To my surprise, they did not.  To the combatants in this particular culture war, I submit this dispatch from the fence.

First, if your audience is willing to consider abandoning its position for yours, it likely will do so only on the narrowest grounds available and, when put to a choice of alternatives, it will always change its opinion on “lower” things before it will change its opinions on “higher” things.  In my case, I consider it a significant shift of position toward the pro-legalization side to have shed my presumption in favor of criminalization.  The effective advocate will realize I would have gotten there by changing my mind about one of two things:  the relationship between drugs and people, or the relationship between drugs and the state.  Is it more plausible that I’ve formed new opinions about the conduct of shooting heroin and smoking crack?  Or that I’ve formed new opinions about whether and how the state should insert itself into that conduct?

The latter, it should be clear.  Why?  Because it is the narrower ground on which I can change my position, which presents the least amount of disturbance to my other preexisting beliefs and values.  Here, the former option would require me to change my opinion on a moral question about the rightness or wrongness of doing drugs.  While my opinions on the limits of government are also strong, moral questions take priority.  Thus, while I still would not be willing to grant drug use the status of a “right,” I may be (and perhaps already am) persuaded that many of our laws that intervene in this conduct are a bad idea.  The advocate who declines this opportunity of persuasion to instead insist upon a “right” to do all manner of drugs–that is, to insist I abandon my higher moral principle in favor of his–will necessarily fail to win converts who otherwise might be ready to join him.

Second, the judicious advocate seeks consensus, not domination.  Characterizing laws against drugs as “racist” tends to inflame rather than illuminate.  In my case, this claim, made by the pro-legalization advocates in the Intelligence Squared debate, actually tended to reverse my cognitive trajectory toward decriminalization.  I am not likely to continue a journey to a point of view that calls me a racist for previously holding a different view; better to hold the line and push back against the interlocutor who has, by striking at my character rather than my reason, made me his enemy.

Abraham Lincoln, who has a movie out I understand, offered similar advice in his Temperance Address that applies just as well to legalization advocates as it did to teetotalers in the 1840s:

Too much denunciation against dram sellers and dram drinkers was indulged in. This, I think, was both impolitic and unjust. It was impolitic, because, it is not much in the nature of man to be driven to anything; still less to be driven about that which is exclusively his own business; and least of all, where such driving is to be submitted to, at the expense of pecuniary interest, or burning appetite. When the dram-seller and drinker, were incessantly told, not in accents of entreaty and persuasion, diffidently addressed by erring man to an erring brother; but in the thundering tones of anathema and denunciation, with which the lordly Judge often groups together all the crimes of the felon’s life, and thrusts them in his face just ere he passes sentence of death upon him, that they were the authors of all the vice and misery and crime in the land; that they were the manufacturers and material of all the thieves and robbers and murderers that infested the earth; that their houses were the workshops of the devil; and that their persons should be shunned by all the good and virtuous, as moral pestilences — I say, when they were told all this, and in this way, it is not wonderful that they were slow, very slow, to acknowledge the truth of such denunciations, and to join the ranks of their denouncers in a hue and cry against themselves.

To have expected them to do otherwise than they did — to have expected them not to meet denunciation with denunciation, crimination with crimination, and anathema with anathema, was to expect a reversal of human nature, which is God’s decree, and never can be reversed. When the conduct of men is designed to be influenced, persuasion, kind, unassuming persuasion, should ever be adopted. It is an old and a true maxim, that a “drop of honey catches more flies than a gallon of gall.” So with men. If you would win a man to your cause, first convince him that you are his sincere friend. Therein is a drop of honey that catches his heart, which, say what he will, is the great highroad to his reason, and which, when once gained, you will find but little trouble in convincing his judgment of the justice of your cause, if indeed that cause really be a just one. On the contrary, assume to dictate to his judgment, or to command his action, or to mark him as one to be shunned and despised, and he will retreat within himself, close all the avenues to his head and his heart; and though your cause be naked truth itself, transformed to the heaviest lance, harder than steel, and sharper than steel can be made, and though you throw it with more than Herculean force and precision, you shall be no more be able to pierce him, than to penetrate the hard shell of a tortoise with a rye straw.

Such is man, and so must he be understood by those who would lead him, even to his own best interest.

In this spirit, legalization advocates might appeal more successfully to conservatives by first acknowledging the destructive force that drugs play in the lives of too many Americans, particularly those who are poor and lower-middle class, in contrast to the relatively wealthy and well-educated represented in the pro-legalization camp.  (It is this demographic divide that accounts for a great deal of the intellectual divide on the issue, I submit, given the stark difference that drugs play in the lives of educated trendy urbanites compared with a less educated lower middle class who are more dependent on family and thus more likely to suffer community effects of drug abuse.)  Also effective would be an acknowledgement of the noble purposes intended by opposing drug use, and to stop assuming base racial motives.

From there, the effective advocate ought to have won enough trust that his practical arguments will begin to hit their mark:  that there are more productive and efficient ways to prevent and cure the destruction drugs cause; that incarceration for drug use is tantamount to sending nonviolent drug users to “finishing school for criminals”; that one of the most powerful public sector unions, the prison guards, is rabidly in favor of the drug war because of the effect it has on swelling their own ranks and increasing their influence on public policy.  Moreover, there is no need for the sticker shock associated with the idea of legalizing all drugs.  There is an obvious middle ground short of creating a “right” to do all manner of drugs, such as repealing minimum sentences, replacing incarceration with rehabilitation, legalizing marijuana only, leaving these matters to the states and possibly even to municipalities, etc.

Republicans might be in a good position to get to a more sensible policy on drugs.  Perhaps even a better position than Democrats, given that Republicans are more comfortable drawing moral distinctions about certain behavior:  Republicans can support laws that make certain drugs unlawful or tightly regulated and still oppose overweening “nanny laws.” It might not satisfy libertarians, but surely they’d appreciate some momentum toward reform.

But so long as the motion is whether to grant unfettered legalization based on a supposed moral right to do drugs, I don’t see how anyone other than doctrinaire libertarians can support it.  We need a consensus that includes more than doctrinaire libertarians, and consensus will never be formed so long as the issue is framed in this way.

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. Great post, Tim. FWIW, I try to take the exact tack you propose when talking to conservatives about this.

    I also think it’s a mistake to talk about some kind of positive right to take drugs. For instance, I think it would be insane to remove prescription controls from anti-biotics, but at the same time I advocate decriminalizing recreational drug use. Inconsistent? From a strictly libertarian perspective, sure. But that’s not my reasoning. I take a more cost/benefit approach. Do the risks and harms of allowing the use of a particular drug outweigh the harms of prohibition?

    • In Mexico, a pharmacist can write a prescription for antibiotics.
      They are still prescribed medicines, but the prescribing regulations are relaxed.

      • That sounds okay to me. I just don’t want them over-the-counter. We’re already facing too many problems with antibiotic-resistant strains of bacteria emerging due to misuse of antibiotics.

  2. As someone who has long hoped for drug legalization i agree with most of what you say about the way to many legalization folks talk. Drugs do destroy peoples lives, there is no way around that. I still think some should be legal but that doesn’t minimize the damage they can cause. Noting the terrible affects of the WOD is something lots of people who otherwise are against legalizing can see in my experience.

  3. This post touches on a whole lot of the frustration I have with the anti-death penalty movement, with which I agree on policy but so rarely on tactics.

    With regard to decriminalization, this is extremely well put. A whole lot of the context of the debate seems to be about being righteous, rather than convincing people that you are right.

    To this I would add, Barry Cooper is an absolutely terrible spokesperson. Given his background, he should be a fantastic one. But he’s not.

    • Aughh… the death penalty. I’m agin it but I fully agree that there are clearly people that deserve it. My objections are purely pragmatic.

      I also don’t quite understand the type of person (basically conservatives) that will harangue you for hours on end about how incompetent the government is, but then turn around and claim our justice system never sends innocent men to death row.

      • My objections are both moral and pragmatic (and some interplay between the two).

        But if accepting the argument you are making depends on first convincing someone that our broad society is fundamentally racist, classist, bloodthirsty and oppressive… you’ve just made your job a whole lot harder than it needs to be. If your argument depends on someone agreeing that we should define what qualifies as a civilized nation by what European countries are doing, you’ve made your job a whole lot harder than it needs to be.

        Anyway, I’ll shut up now. Sorry if I pulled things off to a tangent, Tim.

        • I shouldn’t have said purely pragmatic because I have a moral argument as well.

          It’s simply that I define murder as the unforced, unnecessary killing of another human being. I see no real purpose being served by executing someone that isn’t already served by life imprisonment. Either way, the convicted dies in prison. Since it is unnecessary to the purposes at hand, state execution is murder in my eyes. Furthermore, it is a murder that we all vicariously participate in by dint of citizenship in the government doing the execution.

          Yes, I also oppose state funded abortions even though I’m pro-choice. I don’t believe people who believe other than I do should be forced to participate.

          • Yeah, the “unforced, unnecessary” being precisely where the pragmatism and morality intersect for me. Take that out, and my whole calculus changes.

          • That’s the Vatican’s position, BTW, that it’s unnecessary, not necessarily that it’s inherently wrong.

            “[The] dawn of the Third Millennium would have been remembered forever as the pivotal moment in history when the community of nations finally recognised that it now possesses the means to defend itself without recourse to punishments which are “cruel and unnecessary”.

        • The death penalty is a very good parallel here. There are moral underpinnings on both narcotics and criminal justice/punishment that tend to carry the day with conservatives. But there are secondary yet powerful limited government and economic considerations. I’ll admit that I voted against the initiative to abolish the death penalty in California a few weeks ago, but I did hesitate over it. Like with drug laws, if the arguments were focused on the pragmatic rather than the moral, I’d be much more inclined to change my vote.

          • You’ll get a chance to vote for abolition of the death penalty again in a few years. It keeps coming up, and it’s losing by less each time.

  4. I think there are different aspects of it which need to be considered separately.
    For example, Chicago recently reduced possession of marijuana to a ticket. Just a couple of weeks after that, there were two big busts of growing operations.
    What I’m driving at is that production and distribution are notably different than recreational use.
    And while we’re at it, it should be noted that use differs on a range from recreational to physical dependency.

    I take marijuana as a given, as far as recreational use is concerned. Production and distribution present other issues, though I’m sure some rational level could be determined where regulation would be compelled.
    In fact, I would go so far as to say that small amounts of opiates and meth should be exempt from prosecution; but again, production and distribution are entirely other matters.

    Aside from the stark issue of a prosecutable offense, there are the attendant issues of relapse in the probation /parole system. I think that’s the one that really gives the prison guards more control, needlessly destroys families, etc.
    Also, the relation to DWI/OWI laws presents some interesting questions. I really don’t care for those types of laws where a separate offense is created, but to add intoxication as an aggravating factor in sentencing is something that I could support.

    • You should take a look at the system they’ve set up in Colorado for growing/distributing pot. They put a lot of thought and work into setting it up specifically to keep the criminal element out of the loop. Basically, if you get a joint at a dispensary you can identify every hand that’s touched it.

      • Colorado may have gone too far in the other direction, though. Basically limiting supply to the point that a black market will still exist (with demand possibly being amplified by the legality of it). I will be interested to see how it works. I want as many states as possible to try as many things as possible so that we can find the right combination.

        • Perhaps. I didn’t get the impression that the laws were intended to limit the supply so much as certify the provenance. I do note that they have fairly hefty licensing fees and taxes attached to it, however. If that makes the good legal weed substantially more expensive than street weed that could be a problem.

          On the other hand, I think people might be willing to pay a bit of a premium for weed that’s quality assured and free of legal hassles. Sort of like the way legal, reasonably priced music downloads has driven a lot of the illegal file-sharing out of the market.

          • Oh, I don’t think that was the intent, but I do fear it may be a result. I am hoping it all works out splendidly, but I want to be careful about puffing up any particular model too much.

            Living in proximity to Montana and all of the problems they had with what appeared to be a sensible model has made me cautious.

          • Jesus, it’s a weed. You don’t need to legalize it to the extent that it’s monitored and regulated as a commercial crop. Just let private citizens buy seeds and hydroponics kits and grow their own.

            I think of recreational pot like the homebrew market. It’s not like meth, where making your own can blow up your neighbor’s house.

  5. Nice post, Tim. Two questions.

    1. Would you be amenable to the argument that drug laws have racist effects, or that the police tend to enforce them in a way that is not racially neutral?

    2. What do you mean by “in the wilderness?” That Republicans are in the wilderness these days, or that you are in the wilderness vis a vis the GOP?

    • Regarding #1, Tim might be amenable to that argument, but it’s still one that should be applied judiciously. If you want to argue for the decriminalization of drugs, you shouldn’t have to argue about the extent of racism in society and law enforcement first. Regardless of the truth behind the argument. On the other hand, if you already know that the person is a strong believer in different treatment of different races by law enforcement (and society at large), then have at it.

      Filed under “things I have learned along the way”… YMMV.

      • If I mow my grass, though it destroys potential habitat for birds, it doesn’t mean that I hate birds when I mow my grass.

  6. When we regulate something we do NOT automatically condone it’s use; the regulations concerning alcohol and tobacco are there to protect us from the vast increase in criminality that would otherwise exist if these substances were prohibited.

    A regulated and licensed distribution network for all mind altering substances would put responsible adult supervision in between children and premature access to drug distribution outlets (illegal street dealers). Regulated and licensed distribution would reflect and respect society’s values, thus preventing children obtaining easy access to these dangerous substances. What we need is legalized regulation. What we have now, due to prohibition, is a non-regulated black market to which everybody has access and where all the profits go to organized crime and terrorists.

    If you support prohibition then you support bank-rolling criminals and terrorists. There’s simply no other logical way of looking at it.

    It is now the duty of every last one of us to insure that the people who are responsible for this shameful situation are not simply left in peace to enjoy the wealth and status that their despicable actions have, until now, afforded them. Former and present Prohibitionists must not be allowed to remain untainted and untouched from the unconscionable acts that they have viciously committed on their fellow citizens.

  7. I am not likely to continue a journey to a point of view that calls me a racist for previously holding a different view; better to hold the line and push back against the interlocutor who has, by striking at my character rather than my reason, made me his enemy.

    Can we get this posted as “Helpful Hint #1”, under the “Commenting Policy” link?

  8. The problem is that most people never move beyond the conflation of “government”, “church”, and “parent”. Therefore, obviously, if the church says something is wrong, then government should ban it, and of course government’s authority to do this is unquestionable because when you talked back to your dad he smacked you.

  9. “so long as the motion is whether to grant unfettered legalization based on a supposed moral right to do drugs…”

    I can hear James Madison’s ghost screaming.

  10. “Republicans might be in a good position to get to a more sensible policy on drugs. Perhaps even a better position than Democrats, given that Republicans are more comfortable drawing moral distinctions about certain behavior”

    I think this is exactly right Tim. Nuance is key with drug laws.

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