The United States prides itself on being a nation of social and economic freedom. As a matter of fact, these are some of our founding principles and fundamental rights. Numerous documents have been drafted over the years to make sure these liberties are never taken away from us; the most important being the Declaration of Independence, the Constitution, and the Bill of Rights.
These documents outline our inalienable rights and the responsibilities of a government that works for us to protect said rights. This all sounds amazing, but what happens when there is a major discrepancy between our legal rights and what we consider our intrinsic rights? Regarding cannabis, this is a question coming up with more regularity; because, if we are granted “life, liberty, and the pursuit of happiness”, why would something natural, non-toxic, and therapeutic – something that by all definitions, “makes us happy”, be prohibited?
Getting straight to the point here, is cannabis prohibition unconstitutional? Numerous industry advocates and legal experts are raising this question in the United States Supreme Court.
Weed legality is incredibly complicated and constantly changing. But one aspect of it that does not get challenged enough is whether cannabis prohibition is actually unconstitutional? Is banning cannabis, legal? Maybe focusing on our most important historical documents is the key to federal legalization. In the meantime, make sure to subscribe to The THC Weekly Newsletter for deals on legal cannabis products, as well as all the latest news and industry stories. Also save big on Delta 8, Delta 9 THC, Delta-10 THC, THCO, THCV, THCP & HHC products by checking out our “Best-of” lists!
The Declaration, the Constitution, and the Bill of Rights
Now, let’s get back to these important documents. Earlier I touched briefly on the Declaration, the Constitution, and the Bill of Rights, but I would be remiss not to discuss each in further detail. After all, they are undeniably our most valued government documents.
There are some obvious parallels between the three, starting with the fact that they all have a preamble – which are expressive, introductory statements. They were all written to ease civil unrest or general political turbulence. And most importantly, they all work together and play off each other to guarantee that our basic rights – which the founders believed came from God – are protected and that we, the people, have a way to hold our governing bodies accountable.
That said, there are some critical differences between these documents as well – in how they are written, their history, and the purposes they serve. The Declaration and Constitution were both drafted in what is now known as Independence Hall, by a congress and convention that met in 1776 and 1787, whereas the Bill of Rights was written two years later, in 1789, by a congress that met in Federal Hall in New York.
The Declaration was written almost entirely by Thomas Jefferson, and James Madison was the primary drafter of the Bill of Rights and Constitution, along with James Wilson. The Declaration was created as a rationale for breaking away from the oppressive British government; and the Constitution and Bill of Rights were constructed to establish a government that will defend our newly established freedoms, as per the Declaration of Independence. The Bill of Rights describes the rights and liberties of the American people, and the constitution details the government’s role in preserving these rights.
Life, liberty, and the pursuit of happiness
Regarding cannabis, let’s focus more on the part about “life, liberty, and the pursuit of happiness”. In that short statement, the preamble to the Declaration of Independence basically encompasses the entire theory of a democratic, American government.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
There are a few different interpretations of the “pursuit of happiness” segment, but there really are not very many ways to misconstrue that. Some describe it as the right to freely pursue anything joyous, as long as you live life in a way that is not violating the rights of another individual. Others take that definition one step further to include breaking the law as a barrier to “pursuing happiness”.
Arguably, cannabis makes most people happy… it does me for sure. My cannabis use doesn’t harm others or infringe upon anyone else’s rights; however, it is still illegal. But legality is just about as subjective as defining happiness. I mean, interracial marriage was once illegal in the US, and the only people allowed to work, vote, and own property were white men. Laws are often unjust and society is waiting on the right people to make waves, shake things up a bit, and abolish the old, archaic ways.
So, at this point, knowing the medicinal benefits of cannabis and how it functions in the human body; and taking into consideration that the level of intoxication and risk of adverse effects are both very low; how can the government justify prohibition anymore? If alcohol is legal, then yes, keeping cannabis illegal does seem to border on unconstitutional.
Liberty vs Personal Sovereignty
If you’ve been following any global cannabis news lately, you’ve likely noticed that some countries, like Mexico and South Africa, are pushing cannabis legalization through Supreme Courts using personal sovereignty clauses in their constitutions.
Personal sovereignty can be defined as follows: To be sovereign over one’s self is to be free of the control or coercion of others – to truly direct one’s own life.” Summed up, it’s the concept of self-ownership and governing one’s own body without interference from anyone else, including the government. This applies to legal/inalienable rights, body and health-related rights, and simply being the sole controller over your own body and life. Personal sovereignty is a central idea rooted in several different political ideologies including liberalism, libertarianism, and anarchism.
Many countries that have constitutional documents and supreme courts also have personal sovereignty clauses. What’s interesting is that even these “God-given” rights do vary based on your locality. So, what’s considered inviolable in one country might not be so in another country. That being said, no, the United States does not have a personal sovereignty clause in its constitution. The closest we get is that passionate preamble in the Declaration, which is not absolute and can be interpreted in different ways.
Because cannabis laws are relaxing all over the world and a greater number of large-scale studies are becoming available, it’s possible, theoretically, that the “pursuit of happiness” argument could hold up in court, but as of now, that has not happened yet.
NORML’s amicus brief
In an amicus curiae brief filed last year by a NORML (National Organization for the Reform of Marijuana Law) Legal Committee member David Holland, Esq., argued that the harsh federal scheduling of cannabis is unconstitutional because all three branches of our government (legislative, executive and judicial) have supported and promoted laws and policies that directly contradict the plant’s illegal status.
Holland said: “The Brief exposes a fundamental paradox – if cannabis is federally illegal for all purposes, and the three coordinate branches of federal government have acted to allow for cannabis businesses, then the federal government is nullifying its own law. Simply put, under the Constitution, something cannot be illegal and legal at the same time especially when it comes to state laws that conflict with federal laws. The only resolution to this constitutional conflict is for the Supreme Court to invoke the doctrine of estoppel to prevent the federal government from reversing course and retroactively penalizing that which it has protected in fostering state cannabis programs and effectively legalizing it.”
He added: “Federal precedent exists for the Court to invoke the doctrine and Attorney General William Barr has testified before Congress about his belief that it would be fundamentally unfair to penalize those who in good faith relied upon those government statements and policies because it would violate Due Process. Due Process and fairness are the very heart of the reasoning for the Court to invoke the doctrine of estoppel.”
Click here to read the full text.
What about Justice Clarence Thomas?
A sudden and unlikely proponent of cannabis legalization is Justice Clarence Thomas, one of the Supreme Court’s most conservative members. Thomas is challenging federal cannabis prohibition based on the government’s inconsistent policies and enforcement. He asked whether the federal government had the right to undermine state-regulated markets, and what to make of all their contradicting messages.
“Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” Thomas wrote. “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”
Thomas’ newfound views stem from a case brought against the Internal Revenue Service (IRS) by a medical cannabis dispensary in Colorado. They sued over a tax code that blocked cannabis retailers from claiming regular business deductions that other industries were able to do.
In 2009 and 2013, the Department of Justice issued memorandums instructing prosecutors to let cannabis businesses in legal states operate without interference. Additionally, congress passed a law in 2015 that completely prohibits the Justice Department to spend any money going after these legal operators. “Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana,” Thomas wrote.
“If the Government is now content to allow States to act ‘as laboratories’ ‘and try novel social and economic experiments,’ then it might no longer have authority to intrude on ‘the States’ core police powers . . . to define criminal law and to protect the health, safety and welfare of their citizens,’” he wrote. “A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”
Jim Thorburn, the attorney who is representing the Colorado dispensary whose lawsuit Thomas commented on, believes there’s a way to legalize marijuana federally through the Supreme Court. “Justice Thomas is providing the roadmap to the end of Prohibition,” says Thorburn. “He’s trying to end the federal prohibition.” Thorburn believes that Thomas’ statement was a suggestion to attack Gonzales v. Raich head-on. “When he says this is straining the core of federalism, and calling Gonzalez v. Reich into question, whether the Court could support that case today—I think he’s suggesting that cannabis prohibition might be unconstitutional,” says Thorburn.
Conclusion – Is cannabis prohibition unconstitutional or not?
The fight for cannabis, Thorburn says, could very well be decided by the Supreme Court, similar to how marriage equality, abortion rights, and other social issues have been historically resolved. Only time will where that final push to legalization will come from, but looking at some of our oldest and most important government documents may hold the answer.
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Disclaimer: Hi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advice, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.
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