Marijuana Rescheduling
The Constitution and the War on Drugs
We had some notable drug policy news that has been long in coming. The serious possibility of rescheduling marijuana is a big deal and not a big deal.
Marijuana should have never been classified with the likes of heroin. People knew that was wrong in the early 1970s. Attempts to address the situation repeatedly failed.
Thus, eventually, other methods were used to allow for state acceptance of medicinal marijuana and sometimes more across-the-board decriminalization of marijuana and other drugs.
The rescheduling of marijuana, which now seems likely, directly has limited tax implications. Also, federal criminal law will be applied less harshly. Nonetheless, medicinal marijuana still is not accepted by the FDA. Marijuana businesses cannot use normal banking services.
Congress ultimately has the responsibility to change the law more expansively. Hopefully, the Biden Administration's actions will provide additional assistance in that reform, which has received some bipartisan support. Congressional action has hit various roadblocks since there still is a prohibitionist faction and some liberals think reforms are too limited.
Ditto congressional policy in recent years that prohibits funding prosecutions regarding certain marijuana crimes that do not violate state law. This change in policy goes back to the Obama Administration though it had some ebbs and flows since then. Marijuana remains broadly criminalized nationally, without a medical exception, though you might not know it.
David Pozen wrote the article linked. He also wrote a recent book -- provided free online -- The Constitution of the War on Drugs. A legal blog has chosen it as one of the subjects of a group conversation.
The book covers various subjects including liberty, privacy, equal protection, and religious freedom. It is filled with interesting details (e.g., in the late 19th and early 20th Century, multiple state courts spoke of a private right to drink alcohol) and insights.
Pozen, like Jay Wexler (whose book on marijuana openly expresses his enjoyment of the drug), notes personal enjoyment, the "pursuit of happiness," is part of the stakes here. The Declaration of Independence declares that we have a right to life, liberty, and the pursuit of happiness. It is fine to talk about drug policy having racist effects, cruel and usual punishments, and so forth. Drugs being pleasure matters too.
One commentator on that blog flags how the original draft of Lawerence v. Texas -- which we now know thanks to the release of additional Stevens papers -- more openly talked about sex for sex's sake. The final draft focused on "enduring" bonds, not quite relevant for the sex involved in that specific case.
The book also discusses the paths not taken, including how government officials overall provided little pushback. Limited exceptions are available. Certain reforms should be respected, especially given the scope of the War on Drugs.
Nonetheless, the scope of the problem makes them inadequate. The author points to academics and policymakers overall as well, many of whom use illegal drugs (if largely being safe from negative consequences).
Marijuana is something of an exception. Justice Tom Clark, a conservative-leaning opponent of many Warren Court opinions, supported the legalization of marijuana in the early 1970s. After writing an influential pre-Roe law article extending the principles of Griswold (contraceptives) to abortion, Clark argued personal drug use also could fall under the constitutional right to privacy.
This view received limited acceptance in court. See also, for instance, a few courts (and three justices in Oregon v. Smith*) accepting a constitutional right to use peyote as a sacrament. The federal government accepted Native Americans should have the right to use the drug for that reason.
The Supreme Court accepted an RFRA claim involving another drug used by a small religious group. These cases overall were outliers. Courts rejected claims involving other drugs, including several cases involving marijuana. A consistent religious liberty principle would apply to other consciousness-altering drugs.
There is a growing acceptance of marijuana use, especially for medicinal purposes. Other constitutional principles have helped widespread marijuana acceptance. For instance, states can choose to allow marijuana use. The federal government cannot “coerce” state governments to enforce federal policy.
[The feds have a lot of catching up to do. For instance, their strict anti-drug policy held up the development of hemp, which has numerous usages. There have been significant developments in the last five years. Limitations still apply.]
There also has been some opposition to excessive drug laws, including those that burden disadvantaged groups. Much more of that should be done. The book offers various possibilities. Courts in the past and foreign courts accepted some of them. Changes occur, both positive (GLBTQ) and not so much (Second Amendment).
The book is a helpful resource toward a sane drug policy. It is appreciated that it was made available free online. I am not a big fan of e-books but made an exception here.
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Note: Oregon v. Smith is a case study in paths not taken though it did result in Congress passing the Religious Freedom Restoration Act. Time has suggested, however, that RFRA might have been an overcorrection.
The state court determined that the state wrongly denied unemployment benefits to two drug rehabilitation counselors who were fired for using peyote. The drug was illegal and the state court earlier rejected (contra California) a religious exception.
Nonetheless, the state had no serious concern about illegal peyote use as compared to something like marijuana. The Supreme Court in the 1960s held that the government could not withhold unemployment benefits when someone could not work for religious reasons. The state court applied that rule here.
The Supreme Court could have upheld the state court or ruled narrowly. O’Connor went that route, basically following the “drug exception" approach. The fact a drug counselor was involved also provided an out.
The dissent went all the way, protecting free exercise. The wide number of exemptions for peyote, including by the federal government, helped their case. The scarcity of actual Supreme Court exemption cases (a rare exception being allowing Amish to have a couple of fewer years of schooling) hurt.
(This can be interpreted both ways. There were state exemption cases and lower court federal cases could probably be found. But, religious exemptions often were a matter of state legislative policy. A “nudge” approach would have been to respect that as a general principle and put the state’s failure here to a stricter but not absolute test.)
The majority (the conservatives and Stevens, a strict separationist) went another way: a general criminal law was acceptable, even if it burdened religious liberty. It just had to be truly neutral. That is a reasonable policy though an absolutist approach appears dubious given the specific reference to the free exercise of religion.
But, again, there were multiple limited ways to go. The dissent also referenced a federal policy to respect Native Americans (peyote a sacrament for various Native American groups though only one of the challengers here was Native American).
The aftermath was RFRA, eventually limited to the federal government and certain state situations (including prisons). RFRA on paper is so open-ended in possibility that it has caused problems. A more narrow result could have helped a lot.
Anyway, Oregon v. Smith in my view is a rather outlier sort of case to use to formulate the stricter rule applied by five justices. The conservatives on the Court now are less enthused by the rule though a few are wary about overruling it.