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Several authors have put forth arguments concerning the legality of the war on drugs. In his essay The Drug War and the Constitution, [1] libertarian philosopher Paul Hager makes the case that the War on Drugs in the United States is an illegal form of prohibition, which violates the principles of a limited government embodied in the United States Constitution.
In her dissent in Gonzales v. Raich (a case argued by Randy Barnett), Justice Sandra Day O'Connor argued that drug prohibition is an improper usurpation of the power to regulate interstate commerce, and the power to prohibit should be reserved by the states. In the same case, Justice Clarence Thomas wrote a stronger dissent expressing a similar idea. Chief Justice William Rehnquist joined O'Connor's dissent.
Another argument against drug prohibition is based on the notion that its practice violates implicit rights within the substantive due process doctrine. It has been suggested that anti-drug laws do not achieve enough reasonable benefit to State interests to justify arbitrarily restricting basic individual liberties that are supposed to be guaranteed by the Fourth Amendment and the Fourteenth Amendment to the US Constitution. One proponent of this notion is attorney Warren Redlich. [2]
In 2002, the U.S. State of Florida attempted to eliminate criminal intent as an element of the crime of drug possession. On July 27, 2011, U.S. District Judge Mary S. Scriven ruled that the Florida law was unconstitutional, saying that the elimination of the element of intent was "atavistic and repugnant to the common law". Nellie King, president of the Florida Association of Criminal Defense Lawyers, explained the ruling in terms of due process. [3] The ruling is subject to appeal.
The substantive due process argument is sometimes used in medical marijuana cases. NORML once wrote in an amicus brief on United States v. Oakland Cannabis Buyers' Cooperative that the right to use medical marijuana to save one's life is within the rights established by the substantive due process. [4] However, the Supreme Court found against the medical marijuana dispensary and for the United States in the aforementioned case. Some apparently believe that this invalidates the substantive due process argument against the Controlled Substances Act.
However, the Supreme Court expressly declined to rule on the issue of substantive due process in the aforementioned case, ruling against the medical marijuana dispensary in question on grounds of statutory construction, as the Court found that there was no standalone medical necessity defense in the Controlled Substances Act. Justice Clarence Thomas' majority opinion clearly explains that the Court did not consider any Constitutional arguments in coming to the conclusion that it reached. As Justice Thomas expressly states in his majority opinion: "Finally, the Cooperative contends that we should construe the Controlled Substances Act to include a medical necessity defense in order to avoid what it considers to be difficult constitutional questions. In particular, the Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress’ Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative acknowledges, however, the canon of constitutional avoidance has no application in the absence of statutory ambiguity. Because we have no doubt that the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana, we do not find guidance in this avoidance principle. Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance." [5] As such, the question of the constitutionality of the Controlled Substances Act under the doctrine of substantive due process remains an open one, undecided by the Supreme Court, and debated by the citizens of the United States. Even some opponents of the substantive due process argument who support the War on Drugs have noted that the doctrine could potentially lead to the invalidation of anti-drug laws. [6]
It is argued that the reverse burden of proof in drug-possession cases is incompatible with the rule of law in that the power to convict is effectively taken from the courts and given to those who are willing to plant evidence. [7]
Griswold v. Connecticut, 381 U.S. 479 (1965), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects the liberty of married couples to buy and use contraceptives without government restriction. The case involved a Connecticut "Comstock law" that prohibited any person from using "any drug, medicinal article or instrument for the purpose of preventing conception". The court held that the statute was unconstitutional, and that its effect was "to deny disadvantaged citizens ... access to medical assistance and up-to-date information in respect to proper methods of birth control." By a vote of 7–2, the Supreme Court invalidated the law on the grounds that it violated the "right to marital privacy", establishing the basis for the right to privacy with respect to intimate practices. This and other cases view the right to privacy as "protected from governmental intrusion".
Proposition 215, or the Compassionate Use Act of 1996, is a California law permitting the use of medical cannabis despite marijuana's lack of the normal Food and Drug Administration testing for safety and efficacy. It was enacted, on November 5, 1996, by means of the initiative process, and passed with 5,382,915 (55.6%) votes in favor and 4,301,960 (44.4%) against.
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the due process clauses of the Fifth and Fourteenth amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law". Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In recent opinions, Justice Clarence Thomas has called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
In the United States, the removal of cannabis from Schedule I of the Controlled Substances Act is a proposed legal and administrative change in cannabis-related law at the federal level. It has been proposed repeatedly since 1972. The category is the most tightly restricted category reserved for drugs that have "no currently accepted medical use."
The Alliance for Cannabis Therapeutics (ACT) is an organization supporting medical marijuana that was founded in 1981 by Robert C. Randall and Alice O'Leary. Randall was the first person known to have successfully used medical necessity as a defense against a charge of marijuana possession in violation of the Controlled Substances Act.
In United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001), the United States Supreme Court rejected the common-law medical necessity defense to crimes enacted under the federal Controlled Substances Act of 1970, regardless of their legal status under the laws of states such as California that recognize a medical use for marijuana. Oakland Cannabis Buyers' Cooperative was represented by Gerald Uelmen.
Medical necessity is a legal doctrine in the United States related to activities that may be justified as reasonable, necessary, and/or appropriate based on evidence-based clinical standards of care. In contrast, unnecessary health care lacks such justification.
California Senate Bill 420 was a bill introduced by John Vasconcellos of the California State Senate, and subsequently passed by the California State Legislature and signed by Governor Gray Davis in 2003 "pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution." It clarified the scope and application of California Proposition 215, also known as the Compassionate Use Act of 1996, and established the California medical marijuana program. The bill's title is notable because "420" is a common phrase used in cannabis culture.
In the United States, the non-medical use of cannabis is legalized in 23 states and decriminalized in 8 states, as of May 2023. Decriminalization refers to a policy of reduced penalties for cannabis offenses, typically involving a civil penalty for possessing small amounts, instead of criminal prosecution or the threat of arrest. In jurisdictions without penalty the policy is referred to as legalization, although the term decriminalization is sometimes used for this purpose as well.
In the United States, increased restrictions and labeling of cannabis as a poison began in many states from 1906 onward, and outright prohibitions began in the 1920s. By the mid-1930s cannabis was regulated as a drug in every state, including 35 states that adopted the Uniform State Narcotic Drug Act. The first national regulation was the Marihuana Tax Act of 1937.
Drug liberalization is a drug policy process of decriminalizing or legalizing the use or sale of prohibited drugs. Variations of drug liberalization include: drug legalization, drug re-legalization and drug decriminalization. Proponents of drug liberalization may favor a regulatory regime for the production, marketing, and distribution of some or all currently illegal drugs in a manner analogous to that for alcohol, caffeine and tobacco.
In the United States, the use of cannabis for medical purposes is legal in 38 states, four out of five permanently inhabited U.S. territories, and the District of Columbia, as of March 2023. Ten other states have more restrictive laws limiting THC content, for the purpose of allowing access to products that are rich in cannabidiol (CBD), a non-psychoactive component of cannabis. There is significant variation in medical cannabis laws from state to state, including how it is produced and distributed, how it can be consumed, and what medical conditions it can be used for.
Gonzales v. Raich, 545 U.S. 1 (2005), was a decision by the U.S. Supreme Court ruling that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown cannabis even if state law allows its use for medicinal purposes.
The legal history of cannabis in the United States began with state-level prohibition in the early 20th century, with the first major federal limitations occurring in 1937. Starting with Oregon in 1973, individual states began to liberalize cannabis laws through decriminalization. In 1996, California became the first state to legalize medical cannabis, sparking a trend that spread to a majority of states by 2016. In 2012, Washington and Colorado became the first states to legalize cannabis for recreational use.
Cannabis in Guam has been legal for medical use since 2015 and legal for recreational use since April 2019. Guam was the first United States Territory to legalize medical marijuana, passing via a ballot referendum in 2014.
Cannabis in South Dakota is legal for medical use as of July 1, 2021, having been legalized by a ballot initiative on November 3, 2020. Prior to then, cannabis was fully illegal, with South Dakota being the only U.S. state which outlawed ingestion of controlled substances. Testing positive for cannabis can be a misdemeanor offense. South Dakota would have become the first state in US history to legalize recreational and medical cannabis simultaneously, but an amendment legalizing recreational marijuana that was approved in the same election was struck down as unconstitutional the following February. The challenge claimed the amendment violated Amendment Z, the "Single-Subject Rule". The decision was appealed to the South Dakota Supreme Court, which upheld the lower court's decision on November 24, 2021.
The Florida Medical Marijuana Legalization Initiative, also known as Amendment 2, was approved by voters in the Tuesday, November 8, 2016, general election in the State of Florida. The bill required a super-majority vote to pass, with at least 60% of voters voting for support of a state constitutional amendment. Florida already had a medical marijuana law in place, but only for those who are terminally ill and with less than a year left to live. The goal of Amendment 2 is to alleviate those suffering from these medical conditions: cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis, chronic nonmalignant pain caused by a qualifying medical condition or that originates from a qualified medical condition or other debilitating medical conditions comparable to those listed. Under Amendment 2, the medical marijuana will be given to the patient if the physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient. Smoking the medication was not allowed under a statute passed by the Florida State Legislature, however this ban was struck down by Leon County Circuit Court Judge Karen Gievers on May 25, 2018.
Cannabis in Washington relates to a number of legislative, legal, and cultural events surrounding the use of cannabis. On December 6, 2012, Washington became the first U.S. state to legalize recreational use of marijuana and the first to allow recreational marijuana sales, alongside Colorado. The state had previously legalized medical marijuana in 1998. Under state law, cannabis is legal for medical purposes and for any purpose by adults over 21.
Cannabis in South Africa has been decriminalized for personal adult consumption in private by the Constitutional Court of South Africa. However, laws still prohibit its use outside of one's private dwelling as well as the buying and selling of cannabis. Regulations prohibiting the purchase of cannabis-containing products remain in effect, raising questions about the enforceability of the ruling.
The Cannabis Act (C-45) of June, 2018 paved the way for the legalization of cannabis in Canada on 17 October 2018. Police and prosecution services in all Canadian jurisdictions are currently capable of pursuing criminal charges for cannabis marketing without a licence issued by Health Canada. The Supreme Court of Canada has held that the federal Parliament has the power to criminalize the possession of cannabis and that doing so does not infringe upon the Canadian Charter of Rights and Freedoms. The Ontario Court of Appeal and the Superior Court of Ontario have, however, held that the absence of a statutory provision for medical marijuana is unconstitutional, and to that extent the federal law is of no force and/or effect if a prescription is obtained. The recreational use of cannabis has been legalized by the federal government, and took effect on 17 October 2018.
It is true that the approach suggested in this paper would limit police power. Constitutional protection of individual rights exists for that very purpose. We face coercive government action, carried out in a corrupt and racist manner, with military and paramilitary assaults on our homes, leading to mass incarceration and innocent deaths. We can never forget the tyranny of a government unrestrained by an independent judiciary. Our courts must end the War on Drugs.