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J. Lincoln Jensen

Ms. Oberg

English 11 A5

7 February 2019

The Constitution’s Power over Free Will

The definition of free will is “the power of acting without the constraint of necessity or

fate; the ability to act at one's own discretion.”(Merriam-Webster). Free will is such a volatile

and unpredictable ability we all possess that there have been laws put in place to limit it. Some of

these laws protect us from the free will of others; for example, murder is a crime that is

committed by ending the life of another. One person's actions as a result of their free will

conflicts with someone else's in a negative and none desirable way. These laws obviously have a

good reason for being in place, it's unfair that someone else's choices and desires should

supersede your wants and needs. But what about the laws that prohibit a individual's actions

between themselves and other consenting adults? Such as the illegality to do certain drugs,

despite an individual consenting to it. This brings up the question, are these laws constitutional?

As long as your actions don't affect someone else in a negative way, why are they illegal?

Perhaps because you can't choose always choose who your actions affect but these laws still take

away the individuals freedoms. When do the rights of others supersede your right and claims to

life liberty and the pursuit of happiness?

In the Preamble of the Constitution of the United States it states, “We the People of the

United States, in Order to form a more perfect Union, establish Justice, insure domestic

Tranquility, provide for the common defence, promote the general Welfare, and secure the
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Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for

the United States of America.” under certain circumstances that paragraph contradicts itself.

Specifically the parts that mention “promote the general Welfare” and “secure the Blessings of

Liberty to ourselves” because the general welfare of the majority can sometimes be at the cost of

personal liberty. An example being Medicare, it uses the taxes of the individual, taxes that hurt

the individual’s economic standing. The government then uses the money to provide for those

who are 65 or older and those with disabilities. Though this may one day help the individual who

sacrificed their pay for it, at the time of collection it hurts the individual for the greater good of

the general public. Though the Preamble does state to “secure the Blessings of Liberty” I see no

option to choose to have your taxes not go to Medicare, and if you choose to not pay taxes at all

you are punished. So in this instance we see that the general Welfare is placed above the liberty

of the people, and it is perfectly legal. While some victimless crimes (Ex: recreational marijuana

use in a state where it is not allowed) may or may not hinder the individual and do not hinder the

general population are illegal actions. In the example of Medicare the general Welfare is put

above the liberties of the people legally, which is fairly reasonable. While recreational drug use

does not directly impact the general Welfare and is the choice of an individual, is illegal. It is

understandable that the general Welfare can be put above the liberties of the people, but when

the actions of the individuals have no effect on the general Welfare I think it is simply absurd

that the liberties of the people are limited through laws. It defies the principles that America was

founded on “Life, Liberty, and the pursuit of happiness.”

The Constitution seems to be fine with any amount of personal liberty as long as the

general Welfare is taken care of. Yet numerous consensual actions that do not hurt the General
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population are still crimes. Perhaps the Bill of Rights and it's numerous Amendments say

something that could give permission to the government to make these consensual actions

crimes. Yet upon further analysis none of the amendments give the government power to make

these consensual actions illegal. Most of the amendments declare the rights of the people and

specify the powers of the government. The only one to limit the liberties of the people is the 18th

Amendment which brought about the prohibition. As we all know that did not go over well, and

only a few years later it was repealed by the 21st Amendment. The only Amendment in the Bill

of Rights that could be seen as excuse to take away the liberties of the people is the 10th

Amendment. Which states “The powers not delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This

would mean that the when the liberties of the people are taken away through the illegalization of

consensual actions it would be the fault of the people and the state. Does this make it

Constitutional to take away the liberties of the people as long as the entire state democratically

agrees to it? This is what happens in most today, certain victimless crimes exist in some states

while being non existent in others. For example, in Nevada it is perfectly legal to purchase

marijuana for recreational use, in other state such as Utah and Colorado it's only available for

medical use, it is even completely outlawed in certain states Texas and Kansas being prime

examples. This seems like a fine solution, to let states choose for themselves what liberties they

deem necessary to take away from the people. But does this make it Constitutional?

A large push to keep these consensual actions crimes, is that most of them have indirect

victims or indirectly hurt the general populous. This could give Constitutional reasoning to

keeping victimless crimes to limit the liberties of the people. Since the general Welfare would
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need to be preserved, the personal liberties of the people would be sacrificed. Most victimless

crimes have indirect victims. There are numerous examples of this, going back to recreational

drug use, most of us have seen or heard about crazy drug maniacs doing something stupid or

dangerous on the news. Drugs can completely ruin people's lives through addiction, causing

them to only care about the drug and ways to get more of it. While this is technically the users

choice at first, meaning it has no victims; these addictions can completely destroy a family.

Another victimless crime that does something similar to this is prostitution. Currently in 49/50

US states prostitution is completely illegal, and in the 50th state it has very specific rules that

prohibit when and where it can be done. Despite being between to consenting people, again

meaning it has no victims; it has its own problems that can indirectly make victims. A large

problem being the increased spread of STDs, which certainly hurt the general population. While

these are both logical arguments on why the liberties of the individual should be limited for the

general Welfare. I believe there is a better option. Instead of punishing the action that may

increase the problem, punish direct spread of the problem. Going back to the example of

recreational drug use, instead of having the action be punished; treat it like alcohol. It's not

illegal to partake of but if you hurt someone while under the influence then it's all on you. If you

choose drugs over the welfare of your family there should be a punishment. This can also be

applied to prostitution, it shouldn't be illegal to have that consensual action but instead be illegal

to spread an STD. I feel this would be a just solution for most if not all victimless crimes, it

would also be constitutional by keeping the liberties and freedoms until their actions threaten the

general welfare. This solution would turn dangerous cartels into legal corporations, a unsafe and

illegal action into a much safer viable profession.

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The Constitutionality of victimless crimes is a topic with numerous perspectives that all

must be considered. It can be seen as a limit of the individuals liberties if the crime doesn't

hinder the general Welfare. They can be seen as something that should be decided by the states,

since not directly mentioned in the Constitution. And they can be seen as not victimless at all

since they all might have indirect victims that were never intended. My final opinion on the

subject is that, a victimless crime is an consensual action between one or more adults and it is my

opinion that the liberties of the people should only be limited to protect the general Welfare. If

both can be maintained that is the best solution. I believe this can be obtained through the

abolishment of the laws that make consensual actions crimes, and instead create laws that make

the indirect harm done to the general populace the crime. This allows the greatest amount of

liberty and freedom to the individual while still having laws in place to protect the general

population. The freedom of the people should always be something we strive to preserve, it is

what this country stands for being “By the people, Of the people, For the people.”
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Works Cited

”Williams, Peter Mc. ​Ain't Nobody's Business If You Do ​.

The Constitution of the United States

“State Marijuana Laws in 2018 Map.” ​Governing Magazine: State and Local Government News

for America's Leaders​, Governing,

www.governing.com/gov-data/safety-justice/state-marijuana-laws-map-medical-recreational.htm