The Courts are AWOL in the War on Marijuana Smokers

  • by Keith Stroup, NORML Legal Counsel September 2, 2014

    When one looks at many other important public policy debates in this country, at some point the courts can and must step in to render a decision that changes the entire debate, and corrects an injustice with the stroke of a pen. In our system of government, the courts have co-equal standing with the legislative and the executive branch, and can overrule an offensive or unfair policy based on Constitutional principles.

    Perhaps the most important example of these modern decisions was Brown v. Board of Education, in 1954, in which a unanimous Supreme Court overruled the separate-but-equal policy of racial segregation in public schools, finding “separate educational facilities are inherently unequal” and declared the policy as a violation of the Equal Protection Clause of the Fourteenth Amendment, paving the way for integration. Next came Griswald v. Connecticut, in 1965, when the Supreme Court first identified a Constitutional right to privacy, overturning laws making the use of birth control a crime . Although the Bill of Rights does not explicitly mention “privacy”, Justice William O. Douglas wrote for the majority that the right was to be found in the “penumbras” and “emanations” of other constitutional protections.

    Similarly, in 1967 the Supreme Court struck down state laws known as miscegenation laws, that made it a crime for interracial couple to marry, finding those laws a violation of both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. And in 1973, in Roe v. Wade, the court, based on the right to privacy found in the Fourteenth Amendment, ended the ban on abortions, permitting a women to decide whether to terminate her pregnancy.

    For the rest of this column, please jump to Marijuana.com.

    34 responses to “The Courts are AWOL in the War on Marijuana Smokers”

    1. Cupishere says:

      What about a lawsuit demanding alcohol be banned as equally as marijuana? One could argue the health and social harms of marijuana are much greater. In every way the lawyers could show how alcohol is more dangerous. For example, overdoses, imparement while driving, health risks, etc.

    2. Etty says:

      Leglize marijuana for aduilts

    3. Miles says:

      Once again I say “Thank God for NORML”!!!

      Our Govt has been completely unwilling to face facts and do the right thing. It is a very sad thing that we the people must continue to fight this injustice and deadly assault on our liberties.

      It is incredible that even President Obama has said he is not in favor of legalization. I truly find that hard to believe and therefore, tend to think the president is simply not wanting to face the opposition that I’m sure the Republican Congress would give him…

      That said, I’d like to see most of the Republican Congress members replaced with decent citizens that don’t accept bribes and truly do what is right for our country.

    4. RUT says:

      Government has trouble admitting they are wrong about anything. They do not want to kill all the police jobs all at once. The Justice department is incompetent on purpose. The governments at all levels should be sued for over a trillion dollars for all the lives they have ruined and property they have seized by keeping this racket based on flat out lies going. Oh I FORGOT THEY ARE LOOKING INTO IT! Do not hold your breath for our political system to right a wrong! They make more money by going slow!

    5. Joel: the other Joel says:

      Cannabis Prohibition is taking a passive approach by having the appointed judges waiting it out the political changes that are growing rapidly. The untouched cannabis (marijuana) policy in the “Controlled Substance Act of 1970” is their anchor of hope to rise back in power to bring back control in their own way.

    6. Galileo Galilei says:

      I was unaware of the ‘Wootton Report’ and its findings. Sounds a lot like what happened with the Schaeffer report in the USA.

      Reproducible results! Both the content of the reports and the reaction of government officials.

      People who think their political ideology transcends science mystify and disgust me. They also cost us all big bucks wasting tax proceeds on whimsical, sometimes counterproductive policies.

    7. Daniel says:

      I understand the thinking, but I don’t think it is tactful to put this discussion on the same level as racial segregation, women’s health rights. Those things affect whole groups of people, groups of people who have no say about who they are, and yet have that held against them. Cannabis use is a choice. Do I think a person should be free to do so? Absolutely, but if I have to choose between legal cannabis, or protecting women’s access to healthcare, I’m going to choose the latter. If I have to choose between legal cannabis, and assuring access to public schools for all minor citizenry, again I will choose the latter. Obviously these two issues are not completely settled, or we wouldn’t still be hearing about them all these years later, they would just be taken for granted.

      The other thing I would consider, is that bringing marijuana before THIS Supreme Court, would be a strategic blunder. The courts whose decisions you quoted were not the 2014 SCOTUS. The 2014 SCOTUS is the one who thinks corporations are people, the one who thinks ownership have the right to impose their religious beliefs on employees, and a number of other terrible ideas. There is no way this SCOTUS would stand up for anything, but if it were brought to them and lost then there is an anti-cannabis precedent established by SCOTUS, and good luck having that overturned.

    8. Julian says:

      Thank you Keith,
      For another excellent article on topic, keeping us in the cannabis community on our toes about how the climax of our Great American Cannabis Tragedy will soon come to pass.
      One word:


      Once they change their Constitution to go full into legalization of cannabis this November, there will be more than enough electoral votes and undeniable momentum for legalization to be heard by the Supreme Court.
      The Supreme Court is pro-marijuana legalization…
      …the Supreme Court wouldn’t “DARE” hear a privacy case, much less a state’s rights dispute, unless the MAJORITY of states are firmly and safely in the folds of legalization. There are a variety of reasons for this too long to get into in one blog.
      In many ways, the Supreme Court has been setting up the goal posts for ending prohibition… (While Congress, the ONDCP, the DEA and Prohibition lobbies keep moving the goal post around). One example of this preparation by the S.C. was reducing sentencing for users of crack cocaine. One of the biggest tasks at hand for the Supreme Court Justices is not to interpret the Constitution; that part is OBVIOUS. The real question is what do we do with all the people we have in prison and under prosecution RIGHT NOW under non-violent marijuana possession charges? How many cases get overturned? Who stays in jail? Perhaps most controversial; How many lawsuits do we allow against law enforcement, Congress and the Federal government? Lately the Supreme Court has been defending law enforcement in all kinds of cases involving police brutality. As awful as it sounds, is this deliberate preparation for ending prohibition perhaps?
      And what about other nations like Central America that would like to take matters to the Hague and International courts when the $#!+ hits the fan and we admit prohibition was a HOAX and the CIA overthrew their Democracies all for asset forfeitures!? What kind of settlement does THAT add up to? Eventually, the U.N. is going to have to shift its role in the war on drugs and I don’t care how many Samantha Powers we send or foreign aid we spend to cover it up, it’s going to get very ugly for the U.S. if we don’t offer an advanced position on compensation to these contrived civil wars our gangsters in the DOJ keep creating to sell drugs and guns.

      The Supreme Court will hear a case if it is brought directly to a Federal level from a STATE with a good case like COLORADO or KENTUCKY, such as if Kentucky had proceeded with their recent lawsuit against the DEA,DOJ and Attorney General (instead of settling for commercial marketing privileges for hemp… hard to blame them though) … all for stealing their hemp seeds this summer.
      To the contrary of a state, there’s not so much Supreme Court attention for an individual unless:
      1.) The individual sues the DEA from a Federal Court for being unconstitutionally organized under the C.S.Act seeking little to no settlement or collateral and
      2). said individual has a GREAT crowdsourcing fund that would make the ice-bucket challenge look like a lemonade stand. *(Danny Chong, the U.C. San Diego student could have done this, but it would have turned him into a martyr after suffering 4 days detained with no food or water. A $4 million settlement from the DEA seemed appropriate to me).

      Clearly, the preferred way for the Supreme Court and the President for that matter to stand up to unconstitutional scheduling is for a majority of states to file suit against the Federal government. Coming soon to a theater in Washington D.C.; Better slice some Mango’s and get some Trainwreck ready to stay alert; It’s gonna be a good show.
      It beats the Hell out of waiting for Congress to fix what they screwed up in the first place 45 years ago.

    9. chuck says:

      Obama,has said,sure i’ll legalize canibus just bring me a bill,so you can’t dog him on that,obama colter stood on stage and said,lower the max min’.
      it’s the old boys in our gov.that are stickin to the rational of Reefer Madness,if they would end the war on pot,and legalize industrial hemp along with mary-jane,tax and regulate,we would get out of debt in no time .
      Nixon started this then quit,we spend Billions trying to find mexican growers,of all male plant(you don’t get high on male plants..it just gives you a hightened sense of paranoia,to get high it has to be a second generation female plant,once you get one,it has to be Cloned,to keep up with supply and demand,prohibition has done nothing but put honest hard working citizens behind bars ,slow our economy,and ruin young experimental youth behind bars and ruin lives of honest hard working adults,and ruin there lives to boot.and all the foggies in our government,Love to incarserate our youth and yes the multi racial people too.

    10. Mlc Harris says:

      Legalize Cannabis and hemp nationally and allow the citizens of each state vote on the right to Legalize Cannabis and hemp and earmark all taxes for college students education fund and pre-K-12 education funding. Time to end this psycho pharmaceutical McCarthyism hive mind approach to Reagan’s 30years trillion dollars war on citizens! Get Proactive and VOTE for legalisation of cannabis and hemp nationally by 2020, I’m betting that The Obama will reschedule cannabis and hemp after the Mid-terms election. And once banks are allowed to do business with those in the industry things will change rapidly. .Get proactive and VOTE in this years Mid-terms election!