Justice Samuel Alito's draft majority opinion overturning the Supreme Court's abortion precedents touches on drug legalization in a way that raises interesting issues regarding the government's authority to forbid the consumption of certain intoxicants. "Attempts to justify abortion through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much," Alito writes. "Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history."
I am not so sure about that. It is true that courts have not been receptive to the argument that drug prohibition inherently violates fundamental rights. But if the test for whether a right is "deeply rooted in history" hinges largely on whether Americans were long accustomed to exercising it without government interference, the freedom to consume intoxicants seems like a more plausible candidate than the right to abortion. If Alito delved into the history of drug legislation, he would discover a long tradition of pharmacological freedom. And even if that record does not impress him, he should recognize that the federal government's authority to ban drugs is based on the sort of implausible, ahistorical constitutional interpretation that he condemns in the context of abortion.
