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The Constitution and Marijuana

...by Ed Denson

For years people have asked me what the constitution has to do with marijuana. Last month I had to give a presentation at the Environmental Law Conference and much of it had to do with that topic. Here's some of it. By the way , I'm not a lawyer yet and this is not legal advice.



Marijuana has several aspects. Its easier to follow things if we talk about 4 of them: hemp, ganja, medical marijuana and pot.



Hemp:



By hemp I mean cannabis grown for its non-psychoactive properties. Bird seed, hemp cloth, that sort of thing. The constitutional issues around hemp were well set out in Harrelson v Kentucky not long ago. Harrelson (or his lawyer) said they were arbitrary and overbroad laws. The idea is that even if the government can outlaw psychoactive use of marijuana it should not outlaw non-psychoactive use just because it is too lazy to tell the difference.



Like many constitutional legal problems the decision here is a balancing act. What's balanced is: How important is the outlawed "legal" conduct vs. how important the government's reason for outlawing it is, and how much trouble it would be to write the law right in the first place.



Harrelson won his case. That's partly because Kentucky, which is a major marijuana growing area, not only joined the other states in outlawing cultivation; they even outlawed possession of hemp in any form - like the shirt I am wearing as I type this. Harrelson is a hemp merchant when he is not a movie star. He said it was not only a major imposition on his rights to not let him grow hemp, but it was worse yet not to let him sell it.



The government responded that pot is very bad, and hemp growing would make enforcing the law against psychoactive pot almost impossible. Harrelson got an expert to say it was easy to tell hemp from pot and impossible to hide pot among the hemp plants, therefore the cops would have no trouble in enforcing the anti-pot laws. He said that hemp is best made from low THC cannabis which is no good as pot. Hemp cannabis is visually different, raised differently (grown close together for stalks rather than far apart for buds), and any attempt to grow high THC plants around the low THC hemp would result in cross pollination and make the pot useless.



The judge found that the Kentucky law was arbitrary and overbroad. Although Kentucky's law was an especially stupid one, there is no reason that such constitutional arguments could not prevail elsewhere.



Hemp cultivation is well on its way to being legal, but not because of courts. The definition of marijuana is being changed in the legislatures to exclude hemp.



Ganja:



I am referring to the religious use of cannabis as use of ganja, in this article. Your right to use ganja and stronger psychedelics religiously probablly finds its legal expression strongest under the Religious Freedom Restoration Act (RFRA) of 1993. The constitutional question here involves so-called laws of general applicability. The question is: when a law passed for some reason not related to making problems for religion, does in fact make problems for religion, what changes: the religious person, or the law? If that sounds abstract let's talk about a good example involving free expression.



Indiana passed a law forbidding public nudity. Some exotic dancers in a private club were arrested and sued. They said nude dancing was expressive and therefore constitutionally protected. The Supreme Court said that it would not like it if a law were passed saying you cannot express yourself by dancing nude; but this law was just a general law about public nudity that was not aimed at the dancers and their form of expression. So tough luck for them. They would have to give up that last square inch of expression and keep slightly clothed because Indiana's interest in protecting the public morality was very important and the dancers interest in that last square inch was not.



In the early 1990s the Supreme Court applied the same test to religious freedom and came to the same conclusion: if the law just happens to make it impossible for you to live according to your religious beliefs, find some new beliefs, because the government doesn't have to change the law. There was a big uproar and the Congress overwhelmingly passed the RFRA of 1993. Its quite short and it says that when the law prevents you from living according to your religious beliefs, the law has to change (usually).



The courts hate this law. And by and large they have refused to follow it. They narrowed it down to only applying when the law affected a sincerely held belief that was central to your religion. However to the credit of the courts, you don't have to be a member of an organized religion, and your belief doesn't have to make sense. You might believe, for instance, that the mothership is behind the Hale-Bopp comet and eating toxic applesauce is a great way to beam yourself up. The question is not verity, it is sincerity. The Heaven's Gate 39 did not violate any laws.



There are gazillions of cases invoking the RFRA of 1993. Usually in vain. A California court told Gregory Peck (not the actor) that his Isreal Zion Coptic Church could use ganja as a sacrament, and he could possess it, but he couldn't grow it or buy it. This decision is downright spooky when you consider the parallel arguments about medical marijuana.



Most cases seem to involve prisoners unable to follow the practices of their religious beliefs. The courts generally could care less. They find that prison discipline would collapse if anything beyond generic chapel occurred. Some cases, however, involve established churches who violate zoning laws - usually by feeding the poor or some other charitable act which upsets the neighbors. By and large the courts have favored the churches over the zoning laws.



So we have the most bizarre outcome of all. The government is suppressing religion on all fronts, the jails are filled with religious prisoners whose cases cry out for justice, and the case that comes before the Supreme Court to allow it to determine if the RFRA of 1993 is constitutional involves a church in Texas which wants to expand its building. It is in an area zoned for historic preservation and the government doesn't want it to get bigger or to change anything in the building facade.



Oral arguments have been heard and now we are awaiting the pronouncement of the fate of the RFRA of 1993. If it is upheld, there is still an enormous distance to go before there is actual religious freedom involving the use of psychoactives in the USA. If you use ganja or LSD religiously you are more likely to be a martyr than a winner if you go to court.



Medical Marijuana:



This is now legal under California law. Unfortunately we don't just live under California law. We also live under Federal Law. This is called the "dual sovereigns" doctrine. If one doesn't get you, the other will. So the first constitutional issue that comes up is basically one of states rights. Can California legalize marijuana? Can Hawaii legalize gay marriages? On the other hand, could Arkansas segregate its school system? When the question is: who is in charge here? The answer is almost always: the Feds are in charge here.



There are practical problems for the Feds which have left them muttering threats at doctors rather than taking any direct action to enforce the prohibition of medical marijuana. They have threatened to get any doctor who prescribes or possibly who even discusses medical marijuana with a patient. That leads us to the second constitutional issue: can doctors and patients talk candidly about illness and treatment? Or can the Feds tell doctors what to say? A group of doctors and patients have sued the Feds on this issue. It's way too soon to know what the outcome will be but Federal District Judge Fern Smith issued a TRO telling the feds that they could not sanction Doctors for actions taken while the TRO was in effect.



The issue arises because under California law a doctor may "recommend or approve" a patient's use of medical marijuana. If he does, then the patient can use the medical marijuana. So can the patient's caregiver. Whatever a caregiver is. That's the next legal issue, and its a California issue. What is a caregiver? Is it only the devoted spouse or child who has spent 10 years treating an ailing relative? Or is it also the good people who operate the local Cannabis Buyers Club? The clubs have turned out to be the way that most medical marijuana is supplied in practice. Are they patient networks? Are they caregivers? Or are they outlaws? Are they criminal conspiracies to violate the marijuana laws?



And if the clubs are caregivers, what are the people who grow marijuana for the clubs? Are they caregivers too? The clubs think so. They are issuing contracts which attempt to transfer caregiver rights to the contract cultivators. Lord only knows if this will work. Its sensible, but will the courts support it? Look at it from the Feds point of view. Who would you rather prosecute: a dying patient using a few ounces of marijuana, the doctor approved to alleviate the effects of radiation who owns no assets to seize, or a perfectly healthy person with 49 plants that they intend to sell, growing on land they own, who can not name the person that they are "caregiver" to?



The states' rights issue, and the California constitutional issues are joined by the same issues that industrial hemp raises: can the Federal Government pass laws which are arbitrary and overbroad since they include medicinal marijuana in their prohibition of psychoactive pot?



Pot:



Which brings us to pot -- plain old recreational use of the mildly psychoactive herb. The constitutional issues here are far reaching but don't stand much chance in court under the present legal climate. For instance it is generally considered the state government's sole right to legislate morality. The Feds need some other reason to pass laws, and that reason has to be listed in the US Constitution. What listed power lets them regulate home grown marijuana for personal use? Probably the power to regulate interstate commerce. The fiction that everything that happens affects interstate commerce has permitted the astounding extension of Federal law into everyday life. That fiction got a setback at long last when the Supreme Court threw out the Federal law against carrying guns near a school. The justices thought it was a great idea that the schools not be war zones; but most of them just couldn't link gun-free schools to interstate commerce. The government was shocked. However its a long step from this decision to a real restoration of the powers Congress has usurped over many years to the States or to the People. Such a journey will upset many an applecart, and is not likely to happen in a hurry. Still as the philosopher said, the longest journey begins with a single step, and this case might have been that step.



With pot, as with hemp, ganja, and medical marijuana, the temptation is to make the argument that prohibition is arbitrary and overbroad. The argument would be that pot use certainly doesn't hurt any one so how can it be illegal. However the argument for how serious the loss to the individual caused by the law is legally weakest when it comes to pot. After all we are not talking about money, God, or relieving pain here. We're just talking about fun, and protecting your right to have fun is not a high priority in the American legal system.



Constitutional law is expensive law. It costs a fortune and takes forever. That gives us some stability as a society. It also means that wrongs can go on for decades unabated. I'm sure that there are other constitutional issues that could be argued regarding marijuana. I would be very happy just to see a couple of these litigated. May it happen in my lifetime.

