As a person who favors liberty more than most (personal responsibility as an essential corollary), I was pleased to see President Joe Biden’s recent announcement that he would pardon some 6,500 people convicted federally of simple marijuana possession. The federal government will also more rapidly consider rescheduling marijuana based on a more balanced assessment of its utility as medicine versus its susceptibility to abuse. The lesson I take is this: Our byzantine and inefficient system of government helps protect liberty and personal responsibility, and that makes for a better society, both spiritually and economically, over the long haul.

More bluntly, Congress shouldn’t pass preemptive privacy legislation. (I get to the point eventually.)

We do indeed have a complicated system of government. Powers are divided up in multiple ways. Separation of powers, for example, means that varied and criss-crossing political majorities must agree before the federal government acts (in theory—sorry about current practice).

In general, federalism means that national public goods such as defense are reserved to the federal government, which is uniquely positioned to administer them uniformly and without state or regional favor. Most social and economic policies are handled at the state level, closer in administrative terms to where most social and economic life happens. (In this area, too, modern practice is degraded.)

States are not obligated to regulate it all, though. They can delegate to localities or simply leave a policy question alone and let people decide things for themselves. Personal responsibility thrives when liberty requires its exercise.

This Rube Goldberg arrangement of powers does something very special. It makes room for policy changes in ways that uniformity would not.

Imagine that all marijuana policy was established and implemented by the federal government—or worse, by a federal czar. Once a policy was set, neither state competition nor interbranch competition could dislodge it. Anyone deviating from the policy would be a criminal, and most people prefer to live quiet, law-abiding lives, so avenues to policy change would be sharply narrowed.  

The system we’ve got has some play in the joints. With effort—a good deal of effort over many years—advocates have been able to pursue marijuana-law reforms, first at the local level (which still administers day-to-day policing), then at the state level, and now at the federal level. The recent change is a far cry from full reform. But we have a system in which there can be change—in which laws can update to reflect new and changing social norms in a steady, evaluative fashion.

Let’s turn this insight to the debate about whether privacy legislation should preempt state law: We are at an early stage of development in the interplay between information technology and societal mores. One might argue that we’re at something akin to the Marihuana stage, where pearl clutching, rather than open-minded tolerance or rational assessment, is the dominant motif of policymaker outlook.

In a recent post, I caricatured the approach of the typical privacy scholar or activist to the lives of the people they would protect:

The great unwashed do not know how to live. Look at them out there, socializing on stoops while their children play on the sidewalks. They live near stores, and they’re inveigled by hawkers and salesmen. They endlessly encounter strangers. The noise! It’s dangerous. It’s too much. We must help them.

Whether that portrayal is fair or not, ask anyone if they know how this is all supposed to come out, if they know what the right balance is between information sharing and retention in the billions of widely varied transactions the internet permits us. It takes a lot to believe one can strike that balance—a lot of self-deception.

So, let’s not have a uniform national law that naturally inures against changes. In privacy, just like in marijuana law, our society needs the capacity for legal evolution. That capacity is strengthened when there can be play in the joints like we get when there are conflicting policies and priorities pursued in different parts of our governmental system. It is inefficient in a short-term, green-eyeshade sense, but it is efficient over the long haul in terms of political economy and social progress. Our constitutional meta-policy of multilayered government makes for better policy, and thus better lives. I wouldn’t cast it aside for the expediency of regulating in the name of privacy.

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