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From Conscience to Constitution: Should the Government Mandate Virtue?

photograph of cards, dice, chips, cigarettes, and booze

You have probably heard it said that you can’t legislate morality, that making laws that require people to do the right thing is both ineffective and authoritarian. Nevertheless, in his recent Atlantic article entitled “American Has Gone Too Far in Legalizing Vice,” Matthew Loftus encourages politicians to do just that. By legalizing sports betting and recreational marijuana, Loftus argues that states are neglecting to consider the countless addicts that will result, and that lawmakers should do more to outlaw these harmful vices.

On Loftus’s view, public policy plays a role in the habits that we form, and creating an environment where more people succumb to their vices is neither good for addicts nor the political communities that will be left picking up the pieces. A substantial portion of gambling revenue comes from those who struggle with addiction, and legalizing marijuana is linked to higher rates of drug abuse. If these activities remained illegal, then fewer people would get hooked.

On this score, it seems that Loftus is obviously correct. Our environments play a significant role in the habits we adopt. If I am surrounded by responsible peers, I will be more likely to study for my next exam, while if many of my friends are cutting class, I will be more likely to skip out as well. These choices then form my habits. In the good case, my habits will be virtues like temperance, honesty, and diligence. In the bad case, my habits will lead me into all sorts of vice, including destructive addictions like gambling and drug use.

But even if it is true that our environments form our habits, the question still remains whether it’s the government’s place to guide us towards virtue instead of vice.

As a democracy founded on the rights to “life, liberty, and the pursuit of happiness,” it may be too heavy-handed for political leaders to require us, or even nudge us, to live a certain way.

This concern is amplified by the fact that many of the philosophers who have been the staunchest advocates of state-sanctioned virtue have not been very enthusiastic about democracy. According to Plato, a well-functioning political community should mirror the way that virtuous individuals conduct their lives, while for Aristotle, the purpose of government is to help citizens to live flourishing lives of virtue. But Plato also held that we should all be ruled by philosopher kings, a class of highly educated rulers, and that the freedoms granted within democracies would inevitably lead to anarchy. Likewise, Aristotle thought that monarchy and aristocracy are superior to democracy. An emphasis on character formation through the law might also lead to rejecting democracy as a promising form of government rather than embracing important constitutional freedoms.

These considerations reveal that there is some tension between allowing citizens the freedom to conduct their own lives and passing laws that promote virtue. Part of this tension arises because we often disagree about what is morally best, a fact that the political philosopher John Rawls called reasonable pluralism. Intelligent, well-intentioned citizens can find themselves at odds over many key moral questions.

Is gambling a harmless pastime or a serious moral vice? Is access to abortion a central human right, or the murder of an innocent human being? By enforcing policies that promote particular virtues, lawmakers may have to come down on one side or the other of these ongoing debates.

Furthermore, even in cases where we can agree on what is morally best, it is not clear that the law should prevent us from doing things that we know are to our detriment. Certainly the law should prevent us from interfering with how others choose to pursue happiness, but if we are only hurting ourselves, then why is that anyone’s business besides our own? Part of making room for the pursuit of happiness is allowing citizens to decide for themselves what they pursue, not limiting them to only a menu of government-approved options.

All of this, however, overlooks the fact that promoting certain virtues might be an unavoidable aim even for democratic governments. If it is true that political institutions should enable their citizens to freely pursue their vision of the good life, this goal cannot be accomplished by being completely hands off.

To form and pursue their understanding of the good, citizens need wisdom, discernment, courage, and perseverance, amongst other virtues. These virtues are necessary, not because the government wants to control our lives, but because without them we would be incapable of controlling our own lives.

We would instead be left to the dictates of momentary desires or, in the worst case scenario, crippling addictions from which we cannot recover.

This insight opens up a potential middle road between fully laissez-faire public squares and domineering, authoritarian governments. According to the philosopher Martha Nussbaum, political institutions should cultivate the capabilities necessary for their citizens to pursue self-directed lives. By promoting these capabilities, or virtues, governments ensure that their citizens are able to pursue their own unique visions of the good.

This approach allows that the law can encourage citizens in virtue in a way that creates and supports their ability to choose the life that they want to lead. On this model, the rule of law would not be completely value neutral, but it would make space for people to be able to choose many of their own values.

Forbidding certain kinds of vice, like preventing adults from gambling or using addictive substances, would for the most part be off the table. Unless the government wants to endorse a more robust picture of what a good life is like, the default position would be to let those who can choose their own informed goals pursue those ends. Recreational activities, like football or freediving, come with substantial dangers, but it is typically left up to individuals whether they want to take on those risks. In contrast, protecting those who are still forming the ability to choose their own life paths, like forbidding Juul from marketing to children, would be well within the purview of government officials.

Of course, just having laws that promote virtue does not ensure that anyone will become particularly moral. While they may succeed in outlawing vice, laws simply compel behavior, and those who begrudgingly comply out of fear of punishment would not for that reason become deeply good. The law, rather, would act as a guide for what kinds of values might be worth adopting, and citizens can then decide whether or not they want to choose these ideals for themselves. Policies like sin taxes, for instance, allow states to discourage vice without outright banning it.

Thus, even a view like Nussbaum’s leaves plenty of room for people to develop their own distinctive moral characters. Democracies can lay the groundwork for citizens to live meaningful and fulfilling lives, but at the end of the day, it is up to them to decide what values their lives will ultimately serve.

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Reduction of Harm: Fentanyl Testing Strips for Drug Users

Photograph of a kit for needle exchange, including three needles, cotton pads, and alcohol wipes

In 2017, more than 49,000 Americans died from opioid overdoses, the highest rate that America has ever seen. Of these opioids on the rise is the illicitly manufactured fentanyl drug which can be mixed into heroin and other powdered drugs. Fentanyl is also a prescribed pain killer, but it is the illegally synthesized opioids made with this drug that have caused 29,406 deaths the past year in the US and a 22-fold increase from 2002 in overdose-related deaths. Fentanyl is a drug that is 50 times as potent as heroin and this deadly synthetic could be responsible for the worst drug epidemic in U.S. history.

There is now a way for users to take caution from using drugs that contain this synthetic opioid. On the market for $1 a piece, there are two-inch fentanyl testing strips. When drug users dip the strip into a drug it will reveal if the drug contains fentanyl by the presence of a red line. Along with detecting fentanyl, it can detect nine different chemically analogous drugs, such as carfentanil, which is 10,000 times as potent as morphine. The test strips were originally created for doctors who use them to test the urine of patients  who use fentanyl as a prescribed pain medication. BTNX Inc, a main commercial provider of these strips, is now selling more strips to harm-reduction groups and city/state governments then they are to doctors.

A study conducted by Research Triangle Institute (RTI) International,  looked to see if drug users would change how they used drugs if they had access to these fentanyl strips. They surveyed 125 heroin users from Greensboro, North Carolina at a needle-exchange program site. Eighty-one percent of users reported using the strips and 63 percent got a positive result for fentanyl in their drugs. Those who had a positive result for fentanyl were five times likely to change how they use in order to avoid overdosing. Responders reported using less drug then usual, administering a tester shot, pushing the syringe in slower than normal, and snorting instead of injecting. These practices can decrease the rate and amount of the drug that goes into the bloodstream making them a safer way to use.  Jon Zibbell, an author of the study, says, “An important insight from the study is that people who inject drugs can and will change their behavior when they have information about the risks involved. The bottom line is that fentanyl test strips may represent a new technique to prevent opioid overdose by allowing people to check street drugs for fentanyl and modify consumption behavior accordingly.”     

These testing strips have similar intentions to needle-exchange programs and naloxone antidotes for overdoses. Needle-exchange programs have been found to reduce the amount of blood-borne infections, keep the streets safer for kids with less loose syringes, and provide safe spaces for drug users who have been rejected from their families. These spaces create opportunities for users to turn their lives around and make productive, clean lives. Similarly, naloxone is a medication that will rapidly reverse overdose. It comes as an injection, auto injection, or nasal spray for trained personnel or family members of opioid users to access in case of emergency.

The intentions behind the fentanyl strips for drug users are morally sound in that they align with the needle-exchange programs and naloxone antidotes. They work to decrease overdose, spread of disease, and overall harm to users. However, we must consider if these fentanyl strips are actually effective at decreasing drug overdose. Are they actually being used as something productive, to decrease the amount of harm to users? Or are they promoting the drug industry as “safer” ways to use? If they do little to eliminate harm to users then they could just be weakening drug laws and promoting usage as an unintended consequence.

A few cities such as Baltimore, Philadelphia, Columbus, Ohio, and Burlington, Vermont, have started providing test strips at their needle-exchange sites. However, something that is restricting the wide distribution is that there are paraphernalia laws in place that prohibit the use of devices to aid drug users in using drugs. The needle-exchange sites are not nationally used today: fifteen states still outlaw them. Though this restriction has been loosened for when it comes to clean needles, it could still apply to test strips.

The cons of the testing strips, according to the RTI study, is that though users are more likely to change the way that they use the drugs, they do not stop using. The respondents said that they were more likely to reduce how much they use. They were also more likely to snort the drug instead of inject it, which leads to less being absorbed in the blood stream. However, none of the respondents said that they would throw out the drugs even though they had a 63 percent positive finding for the potent fentanyl drug. Not to mention, the cost of the strips may be too much of a burden for the users to take on as a way of protection.

On average, a clean syringe costs $0.97, similar to the $1 cost of a testing strip. The fact that the strips cost one dollar may seem like a cheap price but on average, heroin users inject four times a day. When injecting this frequently, the process could potentially become too costly to be worth clean syringes and testing strips to users. To counter this barrier, some people suggest that users should just assume that all heroin contains fentanyl and adjust accordingly. Jon Zibbell says, “We have a poisoning epidemic. When there’s E. coli in the lettuce, you test the lettuce. You have to test the product to see what’s in it.”

In order for these testing strips to be implemented in a positive way, there needs to be more solid evidence that they will function as harm prevention. From the Harm Reduction Journal, Don C Des Jarlais writes about how the way that needle-exchange programs were so successful was through vast amounts of research and activism to put the harm reduction measures into place. He says, “The researchers then provided the data needed to justify large-scale public expenditures on harm reduction programs (primarily by state and local governments). Without these public expenditures, the harm reduction programs would not have achieved the scope they needed to be successful to stop the HIV epidemic among people who inject drugs (PWID)”. Fentanyl testing strips seem to be in the horizon towards lowering drug overdose, but more research needs to be done. This research must prove that because of access to the fentanyl strips, drug users will change the way or amount that they use, ultimately proving that the fentanyl strips can decrease the rate of opioid overdose deaths.