8 Marijuana Politics
The Barnette holding and other Supreme Court decisions are clear
examples of the Court recognizing the prob­lems of standardization and
paternalism through intrusive government actions. This idea was clear in
1943 when Barnette was deci­ded and has continued in recent years in
Roberts v. United States Jaycees,46 quoting the “ability in­de­pen­dently to
define one’s identity that is central to any concept of liberty,” 47 and the
dissent in Bowers v. Hardwick claiming the right to privacy is a right to
“self-­definition.” 48 Even though the Court recognizes the prob­lem, it has
done ­ little to fashion a solution.
The final argument in support of the self-­determination concept and
its relationship to drug use is that of pervasiveness. In a 1992 book titled
Our Right to Drugs: The Case for a ­ Free Market,49 Professor Thomas Szasz
concludes that the pervasiveness argument supports the self-­determination
theory in the privacy and autonomy situations relating to drug use. Pro-
fessor Szasz also notes that the Supreme Court in its historical privacy
case of Griswold v. Connecticut50 accepts the pervasiveness theory, and the
concurring opinion by Associate Justice Arthur Goldberg in fact relies
heavi­ly on it. In Griswold, Goldberg refused to find the state’s argument
regarding anti-­extramarital relations as the basis for the law as compel-
ling in light of “admitted widespread availability to all persons in the state
of Connecticut, unmarried as well as married, of birth-­control devices for
the prevention of disease.  .  .  .”
51
This widespread availability and implied
public demand supports the Connecticut public’s recognition of a right to
nonprocreational sexual relations as a pervasive right, a right that a signifi-
cant portion of con­temporary society believes is inextricably connected
with the inherent dignity of the individual.52 Based on this recognition, Pro-
fessor Szasz provides two considerations that the right to self-­determination
is inherent in the right to drugs, a pervasive right recognized by society.
In the first consideration, the relationship between the exercise of an indi-
vidual’s ­ free ­ will to use drugs and the concepts of autonomy, dignity, and
moral responsibility provides support for this claim. According to Profes-
sor Szasz, this recognition of the relationship satisfies the criterion of per-
vasiveness.53 The second consideration comes from the data on drug use
in the United States, which provides ample support for the significant
recognition of a right to drugs. Both casual drug users and addicts alike
are understood to be asserting a right to drugs by their acts of defying
current prohibitionist laws.54 The 21 million to 25 million Americans who
have used cocaine and the 70 million Americans who have used some
type of illegal drug can be counted in calculating the pervasiveness of this
recognition of self-­determination and the right to drugs.55 Just as the
widespread availability of contraceptives in Connecticut in 1964 (despite
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