what the Covington & Burling pro bono program ought to do
from wikipedia
http://en.wikipedia.org/wiki/Legality_of_the_War_on_Drugs
Several authors have put forth arguments concerning the
legality of the War on Drugs. In his essay
The Drug War and the Constitution,
[1] Libertarian philosopher
Paul Hager
makes the case that the War on Drugs in the United States is an illegal
form of prohibition, which violates the principles of a limited
government embodied in the
Constitution.
Alcohol prohibition required
amending the Constitution, because this was not a power granted to the federal government. Hager asserts if this is true, then
marijuana prohibition should likewise require a Constitutional amendment.
Federalism argument
In her dissent in
Gonzales v. Raich (a case argued by
Randy Barnett),
Justice Sandra Day O'Connor argued that drug prohibition is an improper usurpation of the
power to regulate interstate commerce, and the power to prohibit should be
reserved by the states. In the same case, Justice
Clarence Thomas wrote a stronger dissent expressing a similar idea. Chief Justice
William Rehnquist joined O'Connor's dissent.
Substantive due process
Another argument against drug prohibition is based on the notion that its practice violates implicit rights within the
substantive due process
doctrine. It has been suggested that anti-drug laws do not achieve
enough reasonable benefit to State interests to justify arbitrarily
restricting basic individual liberties that are supposed to be
guaranteed by the
Fifth Amendment and the
Fourteenth Amendment to the US Constitution. One proponent of this notion is attorney
Warren Redlich.
[2]
In 2002, the U.S. State of Florida attempted to eliminate criminal
intent as an element of the crime of drug possession. On July 27, 2011,
U.S. District Judge Mary S. Scriven ruled that the Florida law was
unconstitutional, saying that the elimination of the element of intent
was "atavistic and repugnant to the common law". Nellie King, president
of the Florida Association of Criminal Defense Lawyers, explained the
ruling in terms of due process.
[3] The ruling is subject to appeal.
The substantive due process argument is sometimes used in
medical marijuana cases.
NORML once wrote in an
amicus brief on
United States v. Oakland Cannabis Buyers' Cooperative that the right to use
medical marijuana to save one's life is within the rights established by the substantive due process.
[4] However, the
Supreme Court
found against the medical marijuana dispensary and for the United
States in the aforementioned case. Some apparently believe that this
invalidates the substantive due process argument against the
Controlled Substances Act.
However, the Supreme Court expressly
declined to rule on the
issue of substantive due process in the aforementioned case, ruling
against the medical marijuana dispensary in question on grounds of
statutory construction, as the Court found that there was no standalone
medical necessity defense in the Controlled Substances Act. Justice
Clarence Thomas' majority opinion clearly explains that the Court did
not consider any Constitutional arguments in coming to the conclusion
that it reached. As Justice Thomas expressly states in his majority
opinion: "Finally, the Cooperative contends that we should construe the
Controlled Substances Act to include a medical necessity defense in
order to avoid what it considers to be difficult constitutional
questions. In particular, the Cooperative asserts that, shorn of a
medical necessity defense, the statute exceeds Congress’ Commerce Clause
powers, violates the substantive due process rights of patients, and
offends the fundamental liberties of the people under the
Fifth,
Ninth, and
Tenth
Amendments. As the Cooperative acknowledges, however, the canon of
constitutional avoidance has no application in the absence of statutory
ambiguity.
Because we have no doubt that the Controlled Substances Act
cannot bear a medical necessity defense to distributions of marijuana,
we do not find guidance in this avoidance principle.
Nor do we consider
the underlying constitutional issues today. Because the Court of Appeals
did not address these claims, we decline to do so in the first
instance."
[5]
As such, the question of the constitutionality of the Controlled
Substances Act under the doctrine of substantive due process remains an
open one, undecided by the Supreme Court, and debated by the citizens of
the United States. Even some opponents of the substantive due process
argument who support the War on Drugs have noted that the doctrine could
potentially lead to the invalidation of anti-drug laws.
[6]
Rule of law
It is argued that the reverse
burden of proof in drug-possession cases is incompatible with the
rule of law in that the power to convict is effectively taken from the courts and given to those who are willing to plant evidence.
[7]
Legal vs. illegal drugs
Many have also stressed the inequality of certain drugs remaining
illegal while others that are equally harmful are completely legal.
Examples of this include both
tobacco and
alcohol
being legal in most countries and with few inter-personal restrictions
despite them both being seriously harmful to a person's health.
Many countries practice heavy taxation on tobacco and alcohol
products, and use these funds to pay for treatment and prevention
programs.
[citation needed]
Inequities in prosecution
The social consequences of the drug war have been widely criticized by such organizations as the
American Civil Liberties Union as being racially biased against minorities and disproportionately responsible for the exploding
United States prison population. According to a report commissioned by the
Drug Policy Alliance, and released in March 2006 by the
Justice Policy Institute, America's "
Drug-Free Zones" are ineffective at keeping youths away from drugs, and instead create strong racial disparities in the judicial system.
[8]
Freedom of religion and conscience
A special problem is created by government prohibition of
psychedelic drugs such as
LSD,
peyote,
psilocybin mushrooms, and
ayahuasca. Some people use such substances with definite spiritual or religious motives. Use of
peyote and
ayahuasca is currently legal in the US for members of certain recognized religions (e.g.,
Native American Church). However nothing in the
Free Exercise clause of the First Amendment
implies that sincere and responsible exercise of freedom of religion or
conscience requires formal affiliation with an established religious
denomination.
References
- ^ Hager, Paul (1991). "The Drug War and the Constitution". The Libertarian Corner.
- ^ Redlich, Warren (2005-02-05). "A Substantive Due Process Challenge to the War on Drugs"
(PDF). "It is true that the approach suggested in this paper would
limit police power. Constitutional protection of individual rights
exists for that very purpose. We face coercive government action,
carried out in a corrupt and racist manner, with military and
paramilitary assaults on our homes, leading to mass incarceration and
innocent deaths. We can never forget the tyranny of a government
unrestrained by an independent judiciary. Our courts must end the War on
Drugs."
- ^ Spencer-Wendel, Susan (July 28, 2011). "Federal judge rules Florida's drug law unconstitutional". Palm Beach Post.
- ^ Amicus brief NORML
- ^ United States v. Oakland Cannabis Buyer's Cooperative, Majority Opinion of Justice Thomas United States v. Oakland Cannabis Buyer's Cooperative
- ^ Is the Constitution in Harm's Way? Substantive Due Process and Criminal Law Eric Tennen
- ^ Anon. "The universally unconstitutional war on drugs (3rd Ed.)".
- ^ "How drug-free zone laws impact racial disparity–and fail to protect youth". Justice Policy Institute. Archived from the original on July 18, 2006. Retrieved July 27, 2006.
