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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, April 20, 2017


Today is "420 Day," the "420" code originally standing for a good time to get high. It is also Justice Stevens' 97th birthday. And, then there are overlaps, cases where Stevens wrote opinions on both sides.  The video also touches upon how there are a myriad of policy questions involved here, including allowing states to have local discretion that goes beyond voluntary executive discretion. 

There are a myriad of constitutional questions involved here. For instance, one of the cases cited above held: "Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." Reading Scalia's concurrence, one wonders why he did not go along with RBG in the PPACA cases. An earlier case dealt with the question of the defense of "necessity" and the concurrence appeared right to leave it open.  But, the Supreme Court was probably right in the first case.  Justice Stevens was sympathetic but rested on standard liberal Commerce Clause theory. 

I think there is a reasonable liberty claim for those who need it for medicinal usage and a statutory (or agency) one to deal with the scheduling.  As a matter of general policy, yes, I would at least allow state and local discretion here. As is, state liberalization leaves open federal prosecution and things like using cash in a big money business because of federal banking regulations. But, marijuana is a major national and international business. At the very least, the regulation of medicinal usage here involves enough activity to constitutionally be up for regulation.

Various liberty arguments do arise. Overall right to privacy arguments as well as specific Fourth Amendment claims can arise. A link above addresses the First Amendment claim involving a puerile banner, but such an argument could arise in a more serious situation.  Students have a right to promote the view that marijuana should be legal.  Doctors should be able to talk to patients about it without problems arising. Marijuana also clearly has a certain message overall as shown by its association with jazz and other counterculture matters.  Finally, the change of consciousness involved can have religious connotations. And, fines/punishments/forfeiture here can also raise various constitutional problems.  Other matters might be cited.*

[One might even raise Second Amendment concerns since breaking the law is one area that might result in loss of rights in that area.] 

Meanwhile, a broad amount of people use marijuana, legal or not.  This doesn't mean the rules do not matter.  They run the risk of falling afoul of them, especially those of certain races and classes.  The number of people in the criminal justice system on account of marijuana offenses is far from trivial.  Likewise, there are various benefits that might be lost, including public housing even if third parties are involved.  And, if this usage should be deemed constitutionally protected, basic infringement of constitutional rights are involved.  Harshing one's mellow there would both be bad policy and unconstitutional to boot.

Again, Happy Birthday, John Paul Stevens.


* Justice Clark, repeatedly a conservative dissenter in criminal cases in the Warren Court, provides a taste:
Justice Clark had personally expressed great concern for those who used drugs. In an article published after stepping down from the Supreme Court, which today seems wholly extraordinary, Justice Clark spoke about the “badge of criminality” that a conviction for marijuana use placed on “thousands and thousands of our children” and called for the repeal of marijuana laws.
He also suggested the right to privacy applied.  A recent bipartisan rule by an unclear degree disallows federal funds to be used to for federal prosecutions when the activity is protected by local law.  This might be a matter that will arise in the next few years as well as other questions such as damage claims for "leakage" to states that still has bans. Lots of material here.

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