Isabella Carter
In recent years, the question of whether drug use is protected by the constitution has become a topic of debate. While the idea of drug rights may seem outlandish to some, there is a growing movement that argues specific drug bans may violate the Constitution. This argument has gained traction in countries such as Argentina, Canada, Georgia, and South Africa, where constitutional protections for personal drug use are taking off. In the United States, the Warren Court's civil liberties decisions have laid the groundwork for this discussion, with some judges expressing sympathy for the argument that drug bans infringe on the free exercise of religion guaranteed by the First Amendment. As the conversation around drug policy continues to evolve, it remains to be seen whether drug use will be recognised as a constitutional right.
| Characteristics | Values |
|---|---|
| Constitutional protections for personal drug use | In Argentina, Canada, Georgia, and South Africa |
| Constitutional protections for possession | In the US in 1919 |
| Constitutional protections for specific drug bans | Violates the Constitution's Equal Protection Clause |
| Constitutional protections for the "free exercise" of religion | Drugs can serve a sacramental function |
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What You'll Learn
The right to use drugs as a religious freedom
In the United States, the idea of a constitutional right to use drugs is seen as outlandish by most lawyers. However, in 1919, authorities were unanimous in maintaining that constitutional provisions protected possession. In the 1970s, some judges ruled that drug bans infringe the "free exercise" of religion guaranteed by the First Amendment when the drugs at issue serve a sacramental function. These rulings relied on a 1964 decision by the California Supreme Court, which protected the Native American Church's ceremonial use of peyote.
In the 1970s, some judges also held that classifying marijuana as a narcotic, or together with narcotics, is so illogical as to violate the Constitution's Equal Protection Clause. That clause, the Supreme Court had instructed, requires criminal classifications to be at least minimally reasonable.
In democracies as diverse as Argentina, Canada, Georgia, and South Africa, constitutional protections for personal drug use are taking off.
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The right to use drugs as a civil liberty
One argument centres around the idea of personal autonomy and freedom of choice. In 2014, the Inter-American Juridical Committee of the Organization of American States noted that "constitutional courts are increasingly ruling that the decision to use narcotic drugs or psychotropic substances falls within the scope of the moral autonomy of adults", This suggests that the use of drugs, particularly for adults, may be protected as a civil liberty.
Additionally, some judges in the 1970s held that specific drug bans, such as the classification of marijuana as a narcotic, violate the Constitution's Equal Protection Clause. This clause requires criminal classifications to be minimally reasonable, and these judges argued that classifying marijuana with narcotics is illogical and unreasonable.
Furthermore, there have been rulings that drug bans infringe on the "free exercise" of religion guaranteed by the First Amendment when the drugs serve a sacramental function. For example, the California Supreme Court protected the Native American Church's ceremonial use of peyote in 1964.
However, it is important to note that these arguments and rulings have not led to widespread legalisation or protection of drug use. In the United States, the idea of drug rights still strikes most lawyers as outlandish, and drug policy has been characterised by cycles of moral panic and reactionary legislation. While there have been periods of liberalisation, the drug war in the 1980s saw a shift towards stricter drug laws and a decline in the consideration of drug use as a civil liberty.
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The right to use drugs as a moral autonomy
In the 1970s, some judges ruled that specific drug bans may violate the Constitution, even if the government has the authority to regulate drugs. For example, two Michigan justices warned that a defendant in a low-level drug case "could have been any mother's son or daughter". Additionally, some judges held that classifying marijuana as a narcotic is so illogical as to violate the Constitution's Equal Protection Clause, which requires criminal classifications to be minimally reasonable.
In the United States, the authorities have historically been unanimous in maintaining that constitutional provisions protect possession. However, American drug policy has been characterised by cycles of racialised moral panic and reactionary legislation, punctuated by periods of liberalisation.
In other democracies such as Argentina, Canada, Georgia, and South Africa, constitutional protections for personal drug use are taking off. For instance, in the 1970s, some judges in the United States ruled that drug bans infringe the "free exercise" of religion guaranteed by the First Amendment when the drugs at issue serve a sacramental function.
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The right to use drugs as a personal freedom
In the 1970s, some judges ruled that specific drug bans may violate the Constitution, even if the government has the authority to regulate drugs. For example, two Michigan justices warned that a defendant in a low-level drug case "could have been any mother's son or daughter". Additionally, some judges held that classifying marijuana as a narcotic is so illogical as to violate the Constitution's Equal Protection Clause, which requires criminal classifications to be minimally reasonable.
In other countries, such as Argentina, Canada, Georgia, and South Africa, constitutional protections for personal drug use are becoming more common. The Inter-American Juridical Committee of the Organization of American States noted in 2014 that "constitutional courts are increasingly ruling that the decision to use narcotic drugs or psychotropic substances falls within the scope of the moral autonomy of adults".
Even in the early 20th century, authorities maintained that constitutional provisions protected possession, despite approving restrictions on the manufacture and sale of intoxicants. Furthermore, some judges in the 1970s ruled that drug bans infringe on the "free exercise" of religion guaranteed by the First Amendment when the drugs serve a sacramental function.
While these constitutional arguments have faded into obscurity due to the drug war, they highlight the complex nature of the right to use drugs as a personal freedom and the potential for future change.
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The right to use drugs as a democratic freedom
In the 1970s, some judges ruled that drug bans infringe the "free exercise" of religion guaranteed by the First Amendment when the drugs at issue serve a sacramental function. These rulings relied on a 1964 decision by the California Supreme Court, which protected the Native American Church's ceremonial use of peyote.
Building on the Warren Court's civil liberties decisions, some began to argue that specific drug bans may violate the Constitution even if the government has expansive authority to regulate drugs in general. For example, some judges in the 1970s held that classifying marijuana as a narcotic, or together with narcotics, is so illogical as to violate the Constitution's Equal Protection Clause.
Even though they increasingly approved restrictions on the manufacture and sale of intoxicants, the authorities "were unanimous in maintaining that constitutional provisions protected possession," as one scholar observed in 1919.
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Frequently asked questions
In some countries, such as Argentina, Canada, Georgia, and South Africa, constitutional protections for personal drug use are taking off. However, in the United States, the idea of drug rights strikes most lawyers as outlandish.
Some judges in the 1970s held that classifying marijuana as a narcotic, or together with narcotics, is so illogical as to violate the Constitution's Equal Protection Clause. In addition, some judges ruled that drug bans infringe the "free exercise" of religion guaranteed by the First Amendment when the drugs at issue serve a sacramental function.
One scholar observed in 1919 that even though authorities approved restrictions on the manufacture and sale of intoxicants, they "were unanimous in maintaining that constitutional provisions protected possession".
In 2014, the Inter-American Juridical Committee of the Organization of American States noted that "constitutional courts are increasingly ruling that the decision to use narcotic drugs or psychotropic substances falls within the scope of the moral autonomy of adults".
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