This coming election day, with the proposition on the ballot to legalize the small-scale growth, distribution, and possession of marijuana, we in the golden state have the chance to repeal an outdated law that has done too much harm for too long. Unfortunately, the current debate surrounding the prospect of legalization obscures the simple heart of the issue at stake.

I said the law was “outdated,” but the prohibition of pot was never the right answer for its time. Only its motives were clearer. The first states passed anti-marijuana laws in the twenties during Prohibition (strange how alcohol is such a vital part of our culture that we can characterize an era by its absence). The criminalization of pot emerged in an age in which legislators and courts thought the consumption of alcohol posed too great a burden on society to be considered an inalienable right of liberty or property, as protected under the First and Fourteenth Amendments of the Constitution.  Marijuana, its detractors worried, would become the substitute narcotic in that period of unquenchable thirst. But we have since come to feel differently about the freedom to consume alcohol, despite recognition of its potential dangers.

When the first federal law against the drug, the Marijuana Tax Act of 1937, was passed, most Americans had still never heard of the drug. Why? Because the law targeted the practice of a specific demographic, itinerant Mexican workers, who were immigrating in greater numbers to the south and west of the country. In other words, the prohibition of marijuana proceeded under the radar of public opinion because, unlike the prohibition of alcohol, it targeted a demographic that no one who was then considered part of ‘public opinion’ cared about.  Meanwhile, the blatant unconstitutionality of the law could be ignored in the face of fear-mongering claims about the drug’s effects, which produced criminal depravity, insanity, and other gangrenous blights on the social body.

In the fifties marijuana became a household name, known mostly as a drug of questionable urban types — blacks, Latinos, poets, and jazz musicians — that, without strict prohibition and stiff prison terms, would infect white youth. Despite the draconian measures, in the sixties and seventies, those fears came true.

Fortunately, as a result, the discourse has moved beyond the myths of reefer madness. This is due less to the recent scientific and medical studies that have been marshaled in support of the benefits of marijuana and more to the simple fact that many Americans under sixty-five now have first-hand empirical understanding of the positive and negative effects of the drug — not something you’d want to smoke right before you operate a submarine, but unlikely to turn you into a frothing rapist.

Instead, the opposition today, no longer able to embellish with quite the same high moralist rhetoric of yore, voices supposedly practical objections. They complain about the great tax burden that would come from legalization and its incurred medical costs. Guess what? We already incur those costs, whether or not pot is legal.  They complain about youth having easy access to the drug. Again, this is already the status quo. According to one study, teenagers have an easier time getting black market marijuana than they do liquor on the shelves.

At a recent conference in Cartagena, Colombia, Latin American leaders condemned California’s Proposition 19, claiming the legalization of marijuana in the United States undermines their war against drugs and mocks the tragic nature of the narcotics industry in Latin America. But legalization will only further emphasize, perhaps painfully, the senselessness of the violence associated with the cultivation and distribution of this plant and the futility of the war on drugs.

Yet the supporters of legalization are also guilty of obscurantism in this debate. They tout the supposed social benefits legalization will bring by striking a blow against the prison industry, ending the cycle of poverty and jail, helping defuse the violence of the Mexican drug cartels, and creating state revenue for education. Certainly the laws against marijuana and the way they have been enforced by police and prosecutors have helped to destroy black and Latino communities and fund an industry of incarceration. But legalizing marijuana is not going to fix those problems. And legalizing marijuana in California is not going to quell the bloodlust of the Mexican drug cartels. I’m also skeptical legalization is the key to solving the problem of California’s education system.

The truth is we don’t know what the effects of legalization will be. We have to wait for the law of unintended consequences to show us. But we do know that it is both high time and just to do away with a law that infringes upon a basic civil liberty — the freedom to exercise sovereignty over one’s mind and body.  John Stuart Mill, in his stunning and still relevant 1859 treatise On Liberty, put in pithy terms what has come to be known as the principle of negative liberty:

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil in case he do otherwise.

The legalization of marijuana aims to recover this principle of negative liberty from nearly a century of violation. Proponents of legalization should keep their utopian visions in check, for they risk making a simple issue of negative liberty, concerning a trivial act of personal pleasure, into a vehicle of social reform. The repeal of an irrational and unjust law, insofar as it constitutes a critical revaluation of our own past and a respect for the civil liberties that this country prides itself on, is a social reform in itself.

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