Saturday, April 20, 2013

Constitutional arguments for marijuana legalization

1. The 10th Amendment reads:  “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.”  Congress had to change the constitution to prohibit alcohol.  The 18th Amendment was subsequently repealed, of course, because of all the violence and widespread civil disobedience.  Everybody knows: prohibition failed.  Nowadays, liquor is regulated by the states again, as it should be.  As is right.  Local governments have highly specific information, and far more resources on the ground.  Indeed, in Washington state, marijuana sales will actually be regulated at the city level (Kent has elected not to license retail stores, for example) – even better.  Small governments function highly efficiently.  The behemoth in the other Washington is blunt, clumsy and burdensome.

2. The 14th Amendment prohibits  any government actor from making or enforcing a law  which deprives any person of her life, liberty property, or "privileges" without due process of law.   Due process of law means that police must follow procedures in making arrests (such as show probable cause and get a warrant, read Miranda rights, etc.).  But it has also means that federal, state and local governments should not make unfair laws.  Everyone knows that young ethnic minority men are incarcerated and rendered unemployable at an alarming rate for getting stoned.  Due process means that the state must prove that it has a strong interest in prohibiting such behavior; that is, laws which jail an adult for possessing a plant less potent than whiskey should be scrutinized strictly.  Citizens’ behavior is not to be restricted without good reason.  States especially cannot punish innocuous behavior in a discriminatory way, like they’ve obviously been doing.

3. Which begs the 1st Amendment question, which runs something like this:  Native Americans are allowed to consume hallucinogens as part of their religious rituals; states have not been able to justify anti- peyote statutes because they have not shown how ingesting that plant ceremonially harms society (the Due Process argument has triumphed in the California and Arizona supreme courts); yet furthermore the free exercise clause of the1st Amendment prohibits governments from dictating how one practices one’s religion (provided that one’s practices are not subversive to social order).  The Supreme Court denies that one man’s interpretation of God’s law trumps the law of the nation every time, it says that the free exercise clause does not allow human sacrifice, for example; a man cannot be a law unto himself; a man cannot use religion as an excuse to commit harmful crimes.  Fair enough.  Got it.  But if a man wants to smoke marijuana as a meditation aid, or to help him hear aum hum while strumming a sitar, whom is he hurting?  Isn’t peaceful 1st Amendment religious practice precisely the type of “privilege” to which the 14th Amendment refers?

Unfortunately, also according to the Supreme Court, laws with a "public purpose" which only "incidentally" (rather than intentionally) infringe upon religious practices are subject to a "rational basis" test.  To clear this very low hurdle, the government need only show that there is some conceivable purpose for the law, which is in theory related to the incident. 

The 1st Amendment also guarantees free speech, freedom of the press, and the right to complain about and to petition one’s government, incidentally, which is why I can publish this essay, and we Washingtonians were able to pass Initiative 502.  The 1st Amendment is perhaps the most important paragraph in the Bill of Rights.  It should be (and usually is) interpreted reverently.  

Except for some reason in Cannabis' case.