10 Marijuana Politics
This example from Professor Feinberg clearly shows an individual
committing self-­regarding acts. As noted, the “indirect” or “remote” effects
on outsiders are minimal and do not change the fact that the actions of
the individual do not violate the “harm to ­others” princi­ple cited by Mill.
The basic contention of this concept is to examine the relationship
between the individual and the state and determine who should make the
decisions regarding the best interests of an individual. Mill himself
answers this question by noting that even when the state acts in a good
faith, the action is self-­defeating; an adult’s own good is “best provided for
by allowing him to make his own means of pursuing it.” 62 In essence, the
harm princi­ple allows the individual the right to define oneself even
in opposition to widespread, traditional, “normal” values,63 assuming the
defining acts are self-­regarding.
The “right to be let alone” that has become a standard phrase in privacy
jurisprudence should only be circumscribed by the state when the harm
princi­ple has been ­ violated. However, this is not the case ­today, and ­ under
the guise of the police power the state violates this “right to be let alone”
and the individual receives ­ little protection from the courts. A few courts
and some judges have recognized this prob­lem but remain the minority
throughout the judicial system. In 1998, the Hawaii Supreme Court in
State v. Mallan64 held that the right to possess marijuana is not protected ­
under the right to privacy by the state constitution. In his dissent, Justice
Levinson wrote, “Legislative enactments intended to compel purely per-
sonal safety, health, morals or welfare, ­under pain of criminal punish-
ment, constitute unreasonable exercises of the police power; and such
legislative enactments are therefore unconstitutional.” 65 Levinson rejects
the regulation of personal, private conduct ­under the state’s police power
absent a showing that harm or likelihood of harm to ­others would occur.66
The other boundary mentioned by Levinson in his dissent is that once
the right to privacy is implicated, the protection afforded to the individual
can only be impinged upon when the state demonstrates a compelling
interest to do so using the least restrictive means pos­si­ble.67 This pro-
posed standard rejects the rationale basis standard of review and would
require the state to show far more to demonstrate a compelling interest.
The point being, legislation that interferes with an individual’s right to
privacy by prohibiting activity that does not violate the harm rule should
be considered unconstitutional. Although the Mallan case was primarily
focused on the privacy article of the state constitution of Hawaii, the argu-
ment can be made that the Ninth Amendment supports this contention at
the federal level.
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