It’s been in the news the past few days, that the West Virginia Legislature is considering a bill which would legalize marijuana in the state. Introduced by the Democrats, it’s been the subject of knee-jerk criticism by many who claim to have conservative principles. This is yet another illustration of how many so-called conservative politicians misunderstand the conservative principle of “less government,” and even more importantly, the obscure concept of “liberty.”

Now, I have no desire to smoke anything but cigars, but stop and think for a moment . . . . Speaking of liberty, I wonder how Patrick Henry, George Washington, Benjamin Franklin,  or Alexander Hamilton, would have felt about the prospect of a legislature enacting laws criminalizing the possession of a particular plant? What about the criminalization of any object, just in general?

The Constitution, which all elected politicians took an oath to defend, and which all lawyers and judges took an oath to defend, was ratified in 1788. As of 1790, we had exactly thirty (30) federal crimes on the books. See Crimes Act of 1790. The crimes at that time were treason, misprision (concealing) of treason, piracy, counterfeiting (manufacturing), interference with diplomatic immunity, passport obstruction or assault on an ambassador, murder, manslaughter, mayhem (unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose or a lip, or cut off or disable any limb or member of any person….), larceny, misprision (concealment) of felony, obstruction of dissection, corruption of judicial records, perjury and subornation, judicial bribery, obstruction of judicial process, and prison break.

In 18th century, and early 19th century western civilization, criminalization of the possession of objects, drugs, alcohol, etc., was not a thing at all. On the other hand, the outlawing of drug and alcohol possession had long been a central component of Sharia Law, and Muslim dictatorships, as well as in regimes in the Far East:

The prohibition on alcohol under Islamic Sharia law, which is usually attributed to passages in the Qur’an, dates back to the 7th century. Although Islamic law is often interpreted as prohibiting all intoxicants (not only alcohol), the ancient practice of hashish smoking has continued throughout the history of Islam, against varying degrees of resistance. A major campaign against hashish-eating Sufis was conducted in Egypt in the 11th and 12th centuries resulting among other things in the burning of fields of cannabis . . . .

A number of Asian rulers had similarly enacted early prohibitions, many of which were later forcefully overturned by Western colonial powers during the 18th and 19th centuries. In 1360, for example, King Ramathibodi I, of Ayutthaya Kingdom (now Thailand), prohibited opium consumption and trade. The prohibition lasted nearly 500 years until 1851, when King Rama IV allowed Chinese migrants to consume opium. While the Konbaung Dynasty prohibited all intoxicants and stimulants during the reign of King Bodawpaya (1781–1819). As the British colonized parts of Burma from 1852 they overturned local prohibitions and established opium monopolies selling Indian produced opium.

In late Qing Imperial China, opium imported by the British East India Company was consumed by all social classes in Southern China. Between 1821 and 1837, imports of the drug increased fivefold. The drain of silver to India and widespread social problems that resulted from this consumption prompted the Chinese government to attempt to end the trade. This effort was initially successful, with the destruction of all British opium stock in June 1839 (see Destruction of opium at Humen). However, to protect their commerce, the British declared war on China in the First Opium War. China was defeated and the war ended with the Treaty of Nanking, which protected foreign opium traders from Chinese law.

The first modern drug law in the western world was in England in 1868.  The first law against drug possession in the U.S. wasn’t until 1875, from San Francisco, where it was attempted to stop the Chinese immigrants from enjoying their “opium dens.”

Politicians will be politicians, and now as of 2015, we now have over 5,000 federal crimes on the books – up quite a ways from the original 30 in the America as created by our founding fathers. In total, that’s 27,000 pages of descriptions of federal crimes in the U.S. code books. Although the U.S. consists of only about 5% of the world population, we incarcerate around 25% of the world’s prisoners. 40% of those are Black Americans. See The Overcriminalization of America, Charles G. Koch and Mark V. Holden, January 7, 2015.

As for state politicians keeping themselves busy attempting to keep their constituents safe, Arizona has over 4,000 statutory state-level crimes on its books (that’s in addition to the 5,000 federal crimes); North Carolina, where I went to law school, has added five sections to its criminal code each year since Wortd War II, and its legislature has added 318 new crimes since 2009 alone.” Anyone can be a criminal when there’s 5,000+ crimes to choose from:

The story of fisherman John Yates presents a second concern commonly raised about overcriminalization: arbitrary or abusive prosecution. Prosecutors brought charges against Yates and secured a felony conviction for a violation of the “anti-document-shredding” provision of the Sarbanes-Oxley Act. What did Mr. Yates do to deserve time in a federal prison? He threw three of the approximately 3,000 fish he caught that day back into the ocean because he knew they were undersized according to federal regulations, in effect destroying evidence. While the Supreme Court overturned his conviction eight years later, not everyone facing a similar situation has the chance to have the Supreme Court hear their case.

Our country was born out of the English common law, and where there is a void, our courts still look to the English common law for clarification on may topics of criminal law. It might surprise you to learn that the prosecution of crimes in our mother country was originally a private matter, rather than public.  There was no real police force anywhere.  Nor an army of prosecutors. The first real police force was created in 1829, and then that was only in London. The criminal justice system itself, was mostly privately operated and funded:

England in the 18th century had no public officials corresponding to either police or district attorneys. Constables were unpaid and played only a minor role in law enforcement. A victim of crime who wanted a constable to undertake any substantial effort in order to apprehend the perpetrator was expected to pay the expenses of doing so. Attempts to create public prosecutors failed in 1855 and again in 1871; when the office of Director of Public Prosecution was finally established in 1879, its responsibilities were very much less than those of an American district attorney, now or then. In 18th century England a system of professional police and prosecutors, government paid and appointed, was viewed as potentially tyranical and, worse still, French.

Under English law, any Englishman could prosecute any crime. In practice, the prosecutor was usually the victim. It was up to him to file charges with the local magistrate, present evidence to the grand jury, and, if the grand jury found a true bill, provide evidence for the trial.

In some ways, their system for criminal prosecution was similar to our system of civil prosecution. Under both, it is the victim who ordinarily initiates and controls the process by which the offender is brought to justice. There is, however, at least one major difference between the two systems. If the victim of a tort succeeds in winning his case, the tortfeasor is required to pay him damages. If the victim of a crime won his case, the criminal was hanged, transported, or possibly pardoned. The damage payment in civil law provides the victim with an incentive to sue. There seems to be no corresponding incentive under the 18th century system of private criminal prosecution.

Somewhere we left our English common law heritage, and the heritage of western civilization itself, to embrace becoming a police state society, seeking to control every aspect of human life. Anglo-American criminal law did not seek to control, or somehow enhance society, but rather to punish violators, reimburse victims, and to prevent future misconduct.

It was the authoritarian regimes of the Middle East and the Far East, which for centuries kept their subjects under their control, and which is a criminal justice model based on what they see as enhancing the community, in the form they see as most proper. As Professor Dubber wrote, the inevitable result of this sort of a police vs. citizen dichotomy is a divided nation:

In the communitarian approach to the question of police control, the battle lines are clearly drawn. On the one hand is the community of potential victims, the insiders. On the other hand is the community of potential offenders, the outsiders. The boundaries of these communities are not fluid. One either belongs to one community or the other. And it is the duty of the community of potential victims to identify those aliens who have infiltrated its borders, so that they may be expelled and controlled, and their essential threat thereby neutralized.

Policing Possession: The War on Crime and the End of Criminal Law, Markus Dirk Dubber, Journal of Criminal Law and Criminology, Vol. 91, Issue 4 (2001).

And here we are then, a divided country, full of people who would probably get along just fine as individuals, but who have been turned into competing interest groups in the politics of the criminal justice system.

Possession crimes were used against Black Americans, throughout the Jim Crow era, by depriving them of the right to possess firearms. The legacy of doing so, still reverberates today, constantly. This is where the so-called Constitution-loving conservatives suddenly realize, what a minute, you mean they can do that to me too?  But, but, but, I’m a law abiding citizen . . . .

The anxiety about gun control, i.e., the regulation of gun possession, arises from this tension, this uncertainty amongthose who once clearly identified themselves with the policers in their effort to control undesirables.

Privileged members of thepolitical community are appalled to find themselves treated bythe law, if not necessarily by its enforcers, as presumptively dangerous, and therefore as vagrants, felons, aliens, and “negroes.” Pointing to the Second Amendment, they challenge the state’s claim to original ownership of guns as dangerous instruments,with possession to be delegated to those deemed worthy. Men of “good moral character” balk at the requirement that they demonstrate their moral fitness to a state official.

They are, in short, experiencing the very sense of powerlessness so familiar to the traditional objects of police control. Now, they too are the outsiders who find themselves confronted with the arbitrary discretion of a superior power, the state. And this sense of alienation only grows when these state-defined sources of danger realize that state officials are exempt from the general prohibition of possession.