“Freedom is not something that anybody can be given. Freedom is something people take, and people are as free as they want to be.” – James Baldwin
As we gather as a country and celebrate the day we declared our independence from our overlords across the pond – July 4, 1776 for those wondering what I’m talking about, look it up – it’s a good time to reflect on what freedom means, and what keeping it intact entails.
Cannabis prohibition is a restriction of freedom, and it is finally being seen as such by the majority of Americans. It goes against a fundamental pillar of civilized society; namely, that if you aren’t harming someone in some way, you are not committing a crime and you do not deserve to have your rights violated. But how has marijuana prohibition been seen up to this point? Is it a violation of our rights? Is it even constitutional?
The Constitution and Cannabis
The events of July 4, 1776 led directly – some 11 years later – to the drafting of the U.S. Constitution and its ratification by the states. The Constitution has been a source of stability for the United States, but it has also been the subject of much debate.
This is especially true when it comes to cannabis and its constitutionality. Naturally, legalization advocates are very interested in the question of whether cannabis prohibition is constitutional; after all, if something can be proven to be unconstitutional, it obviously has no basis in law and can easily be scrubbed from the books. Unfortunately, nothing is that simple when it comes to the Constitution.
“Because of the peculiarities of Constitutional law, under current legal principles, marijuana prohibition is constitutional,” NORML Legal Counsel and Founder, Keith Stroup, told The Marijuana Times. “And the courts have repeatedly reached this result when marijuana prohibition has been challenged on constitutional grounds.
“In evaluating the constitutionality of various laws, the court uses two different tests. For this, rights considered ‘fundamental’ (involving race, religion and gender), the court applies a ‘compelling state interest’ test, under which the state must convince the court they have a compelling state interest in order to override a fundamental right. That is a difficult test for the state to meet legally.
“For other laws (including marijuana prohibition), the court applies a ‘rational basis’ test when evaluating whether a law is constitutional. Under that test, all the state has to demonstrate is that there was a rational basis for passing the law, even if that basis may not be scientifically valid. Using this test, almost all laws are found to be constitutional.
“The one area in which I think the courts, with the exception of the state of Alaska, have really dropped the ball, is the question of whether marijuana prohibition is an unconstitutional violation of their constitutionally guaranteed right to privacy, as it applies to the home. Alaska ruled back in 1978 that their state right to privacy provisions overruled the laws against the personal use and possession of marijuana in the home. Unfortunately this same argument has been rejected in federal court and in all other states.
“And in a perfect legal system, those who use marijuana as a religious sacrament should be protected from criminal arrest and prosecution. But the courts have consistently rejected this argument, as it applies to marijuana.”
Well, that’s a bummer, but not surprising. The government – which includes the courts – tends to have the home field advantage when it comes to the law. But there are those who make compelling arguments that the government is wrong on this one.
The website Debate.org is a place where people – you guessed it – debate various issues. Some have taken some interesting angles when it comes to showing that cannabis prohibition is unconstitutional, like comparing it to the precedent of alcohol prohibition.
“The supporting argument is that the Constitution doesn’t mention drugs or cannabis. The Constitution didn’t mention alcohol either, which is why the Constitution needed an Amendment (XVIII) to criminalize it. Where is the Amendment to criminalize cannabis? The prohibition of alcohol was made possible [by] an Amendment and had to be unmade through an Amendment (XXI). The idea that something not mentioned in the Constitution gives our law enforcers and legislature the authority to create prohibitive laws is absurd.”
Some have taken a more Biblical approach. “Marijuana is a plant that is produced by seed and that naturally grows without chemical processing. Not even wine is that simple. God said in two places in the book of Genesis that plants and animals were made for us for our benefit and that is inclusive of ‘All plants bearing seed.’
“No government has the right to dictate and override the word of God as it has been written. The judicial system, in court, tells individuals about to give testimony that they must, ‘place their right hand on the Bible and left hand in the air swearing to tell the truth, the whole truth and nothing but the truth.’ Obviously the judicial system sees some validity and value as far as upholding the Bible as a book of truth, yet they fail to recognize the truth clearly written in the Book of Genesis.”
Of those who have visited Debate.org, 80% have decided that cannabis prohibition is unconstitutional, for whatever that’s worth to you.
In any case, it’s safe to say that when cannabis is fully legal on a federal level, it won’t be through a Constitutional amendment.
Cannabis and the Struggle to be Free
On a more fundamental level, marijuana prohibition offends many of us because it goes directly against our sense of fairness and against what it means to us to be free. Cannabis users struggle for their independence every day against a massive enemy that has every reason to keep us under its boot heel.
Does that remind you of anything?
“I think one could only compare the current fight to end marijuana prohibition with our Founding Fathers’ fight for independence, if marijuana smoking were found to be a fundamental right (see above),” Keith Stroup told us. “One’s right to be free from enslavement from a foreign power is, in my mind, quite different, and more significant, than the prohibition of marijuana.
“Marijuana prohibition is poor public policy and needlessly ruins lives and careers of hundreds of thousands of otherwise law-abiding citizens each year in this country; but it is quite a stretch to compare prohibition with our nation’s fight for independence from England.”
In terms of scale, Keith is of course correct. Our fight for Independence in the 18th century sent shockwaves around the world that still reverberate today. Marijuana legalization is big, but it cannot hope to match that.
But, deep down, both fights come from the same place. Human beings are naturally against being told what to do by someone else. A person who is not you, telling you what to do even though they take none of the risks and face none of the pitfalls of your decisions, is anathema to us. In the end, we want to be left alone to live our lives, free from the shackles of a far-off monarchy and free from the overreach of politicians and bureaucrats in Washington D.C.
“In developed democratic societies, people generally want their laws to be reasonable, fact-based, and geared toward promoting the common good,” Mason Tvert, Director of Communications for The Marijuana Policy Project, told The Marijuana Times. “Unreasonable marijuana laws came about because facts were misconstrued, hidden, and ignored for several decades, resulting in the skewed perception that prohibition is in the public’s interest. Now that people are getting the facts, they are coming to realize that prohibition is actually causing far more harm to society than marijuana, they are demanding more sensible laws. Marijuana prohibition fundamentally clashes with the core values upon which our nation was founded — freedom, liberty, and justice.”
All of which reminds us that freedom must always be fought for. It is a constant struggle against those with the natural inclination to control the actions of their fellow humans. A few try to control while the many fight; the never-ending battle against tyranny of all kinds.
“Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.” – Martin Luther King, Jr.