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Justices Stevens, Souter, & Ginsburg: Drug Policy Reform Sympathizers?

As noted by Pete Guither in his excellent 'Bong Hits 4 Jesus' coverage, this passage from Justice Stevens in his dissenting opinion is quite remarkable:
…the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.
What a profound statement on the importance of publicly debating marijuana laws. Rarely, if ever, has a member of the Court addressed this issue with such candor. It's also noteworthy that his colleagues, Souter and Ginsburg, signed onto this. Stevens's point can't reasonably be characterized as a direct critique of marijuana laws, but he certainly endeavors to legitimize that viewpoint in the marketplace of political ideas.

Although the 'Bong Hits 4 Jesus' banner itself lost today, this case has provided a strong indication of the Court's familiarity with the political debate over our nation's drug laws. What appears on the surface to be a victory in the anti-drug crusade has proven to be more nuanced, which may explain why ONDCP has remained silent today.

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Clarence Thomas

Thomas is not my favorite SCOTUS justice. Heck, he's not even in my top five or six :) But I believe he has gone on record saying that the Controlled Substances Act is Unconstitutional and that modern drug prohibition would have been unthinkable to the nation's founders.

Let's not overdo the good news

While some of the dissents (and even some concurring opinions) have good points, Chief Justice Roberts' majority opinion clearly asserts the right of schools to punish anything they "reasonably believe" to be a "pro-drug" message. That could arguably include any student efforts to counter exaggerations and misinformation that are common in anti-drug curricula with actual facts -- for example, about the relative safety of marijuana vs. alcohol. While this ruling is only a partial victory for the forces of censorship, it is nevertheless a win for the bad guys.

Bruce Mirken
Director of Communications
Marijuana Policy Project

Fair enough

Thanks Bruce.

It does concern me that "Bong Hits 4 Jesus" is weak as far as "pro-drug" statements go, and leaves a lot of room for other ideas to be designated as such.

Still, it's a hardly a political statement. When a majority of the Court's justices claim they'll protect "political" language regarding drugs, I would hope that the distinction between BH4J and "protect medical marijuana patients" would be obvious. Indeed, Alito's controlling concurrence articulates the difference, so we have a blueprint (though imperfect) for measuring where this line would be drawn.

I prefer to take the Court at its word and assure students that their political speech will be protected. To do otherwise would risk perpetuating a chilling effect on student activism that is an important part of our movement.

Stevens' comments on marijuana

I strongly agree with Scott that his comments on the war on drugs and marijuana in particular are remarkable. He went out of his way to talk about the millions of otherwise law-abiding people who use marijuana. I don't think anyone of his stature in DC has ever come close to such a sympathetic comment about marijuana users. While it won't lead directly to any change, I think (hope) it is a sign of the times.

Before, there was nothing, then Raich, now Fredericks

These SC cases are remarkable in that by rising as far as they did, they have illustrated the need for the long suppressed national debate regarding cannabis laws in this society. A debate that has been deliberately avoided by those who materially and politically benefit the most by maintaining cannabis prohibition. A debate that I believe the Supremes would sincerely wish take place in a venue other than their own; they must be tiring of having to handle this political pin-half-out hand-grenade.

(The national political, social and financial repercussions of a ruling favorable to our side of the debate might prove to be disastrous to more than just the prohibitionists; for example, should it be proven in a court of law that cannabis has next to no deleterious effects upon the body, after national policy had been built upon the foundation that it had, the door will be opened to millions of lawsuits on the part of all those whose lives have been destroyed by the legal system that operated under an easily debunked false premise. IMHO, this is a major incentive for the prohibitionists to use every means available to stonewall each and every attempt to change the laws. The Supremes cannot be completely unaware of this, and no doubt wish to avoid the prospect of being the vehicle for such a governmental debacle.)

Yes, the rulings have been setbacks, but I expected nothing else from a Supreme Court so top-heavy with Federalist Society members; their hostility to individual rights (save when those 'individuals' are in fact corporations) and almost monomaniacal support of The State is well documented, the recent ruling about passengers in cars being 'seized' notwithstanding.

But the fact that the SC dissenters typified by Justice Stevens have pointed out the very same conclusion reached in the Summary of the Shafer Commission report on cannabis 35 years ago - that the minority is being silenced by the majority with regards to changing cannabis laws - is a very significant one, and should not be understated.

Every reformer who's done the research quickly discovers the network of civil servants, former civil servants, corporations, etc. that have been profiting so handsomely from the lies underpinning cannabis prohibition. The very same network the Shafer Commission warned about so long ago. Publicly pointing the finger at these self-serving obstructionists will go a long way towards reducing their cachet. - nemo

Blatant Stupidity

"Saying marijuana is bad, is like saying God made a mistake." -Bill Hicks

The "war on drugs" is nothing more than a propaganda scheme to "justify" taking more and more money away from American citizens.

Let's see, if we legalize marijuana: we will have less non-violent offenders in prison that tax payers have to pay for... cops will be able to police the streets looking for true criminals... and watch the marijuana episode of "Bullshit" for a longer list.

There is not one logical claim that can defend why we're continuing the blatant stupidity of another prohibition against a NATURAL plant.

Marijuana is a plant. Period.

Only in a country as corrupt and fascist as America could ignorance of this scale be tolerated.


"Only in a country as corrupt and fascist as America could ignorance of this scale be tolerated."

I wouldn't go and say that. Shit, in other countries you can get the death penalty. Other than that, I agree with ya.

Shhh, don't tell people about the consitution...

... that it was written on _hemp_ paper!


Talk about a country going green...

As government offers more and more incentives for individuals and corporations to "go green" it will be interesting to see how long our law makers can turn their back on the unmistakable eco-advantages that the cannabis plant offers. Marijuana legislation will change this way first, then the personal freedoms associated with this drug will come later. If more people would debate the financial and ecological advantages of marijuana in industrial uses, instead of the right for people to smoke pot, this great nation would be well served.

Thanks for setting our country back 70 years W.R. Hearst.

Re: going green

agree that industrial hemp has an obvious place in going green and like the way you expressed it. But the argument that, given that alcohol is legal, marijuana should be too is a powerful one. Powerful as an issue of basic justice and civil rights (equal treatment under the law) and also as a public safety issue-forcing people to use alcohol instead of marijuana promotes all sorts of violent/murderous behavior. I see no reason not to make these arguments, I don't see how they can reasonably be countered (How many people does alcohol kill? And marijuana?). Another powerful argument for legalization of cannabis is the way prohibition highly empowers criminal gangs here and abroad. The situation in our southern neighbor is deteriorating. The financial benefits to our government of regulating and taxing cannabis are not insignificant either. The fights for hemp and medicinal marijuana and recreational marijuana should all be pressed. Support was over 40% for legalizing marijuana in Nevada and Colorado in two 2006 votes.

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