STORIES

Prohibition Is an Affront to the Declaration of Independence

By David Jenison on July 5, 2017

In 1971, the Michigan Supreme Court heard People v. Sinclair, a high-profile case in which John Sinclair appealed a decade-long prison sentence for selling two cannabis joints to an undercover officer. The plight of the poet, activist and former MC5 manager inspired protests, songs and a Freedom Rally featuring John Lennon, Stevie Wonder, Bob Seger, David Peel, Allen Ginsberg and Abbie Hoffman, among others. In March 1972, the court overturned the conviction and set Sinclair free.

In the written text for the decision, Justice T.G. Kavanagh quoted J.S. Mill's On Liberty and referenced George Orwell's 1984 (saying "Big Brother" should not dictate what a person smokes in the privacy of his own home), but he most notably cited the Declaration of Independence. He stated, "I find that our [prohibition] statute violates the Federal and State Constitutions in that it is an impermissible intrusion on the fundamental rights to liberty and the pursuit of happiness, and is an unwarranted interference with the right to possess and use private property."

Dated July 4, 1776, the declaration that inspired Independence Day famously says, "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." What this article calls an affront, the Supreme Court justice called an "impermissible intrusion" on the fundamental rights granted in a document so historic that it's associated with a national holiday. 

For those who claim to love liberty, independence and American values, consider the intrusions cannabis prohibition perpetuates. First, prohibition is an affront to the right to Life by prohibiting the medical use of cannabis to treat potentially fatal diseases like cancer and pediatric epilepsy. Moreover, it degrades basic health by denying a natural, cost-effective option for dealing with physical and mental health disorders and enhancing overall wellness. 

Second, prohibition is an affront to the right to Liberty as it's a driving force behind mass incarceration. The American Civil Liberty Union (ACLU) noted that 52 percent of all drug arrests in 2010 were for cannabis, which typically involved possession of small amounts. More than eight million people (and disproportionately people of color) lost their liberty in the 2000s due to prohibition, and a 2016 Human Rights Watch report found cannabis arrests currently outnumber all violent crime arrests combined. Per the data presented in the report, you can assume four to six people were arrested for personal-use drug possession since you started reading this editorial. 

Finally, prohibition is an affront to the right to pursue happiness for the tens of millions of Americans who enjoy cannabis. Countless other activities that make people happy can have risks even when enjoyed responsibly—e.g., rock climbing, parachuting, alcohol consumption, surfing, riding motorcycles—yet it's pursuing happiness through cannabis that's deemed a criminal act. To put this disparity in context, Scientific Reports concluded in 2015 that cannabis is 114 times safer than alcohol. 

A 2000 legal brief filed with the U.S. Supreme Court for United States of America v. Oakland Cannabis Buyers' Cooperative made a similar analogy. "This state-federal conflict implicates several individual liberties intertwined under our Constitution: The right of the 'pursuit of happiness' and liberty by the chronically and terminally ill; the right of citizens 'to be let alone' by government in personal decisions; and substantive due process when there is no comparable federal interest in prohibiting the conduct at issue," said the brief.

While some might argue that these unalienable rights are not in the Constitution, many legal scholars and justices would disagree. 

Samuel Miller, a U.S. Supreme Court justice nominated by Abraham Lincoln, wrote this in 1866: "Although the pursuit of happiness appears in the Declaration of Independence rather than the Constitution, members of the Supreme Court have found that the 'right to life, liberty, and the pursuit of happiness, is inalienable.'" 

Various courts cited the "pursuit of happiness" in cases involving a wide range of issues, including voter rights (United States v. Reese), contraception (Griswold v. Connecticut), marriage (Loving v. Virginia) and surveillance (Olmstead v. United States). In the latter Supreme Court case from 1928, Justice Louis Brandeis wrote, "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness… [and] they sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."

The Declaration of Independence is about freedom, while prohibition is about taking away freedoms even when they do not encroach on other people's rights. A 2010 article in the Indiana Law Journal actually compared prohibition to the lack of freedom experienced in the Islamic Republic of Iran. 

"The right to pursue happiness in one's own way is worthy of respect, and many Americans disdain the Iranian government because it affords none," said the author. "There, the government bans certain dress and music that it deems decadent. Here, the default position is that people should be free to pursue their individual and idiosyncratic tastes in recreation, including even such risky ones as boxing and mountain climbing. Only in a few cases does the majority presume to control the personal pleasures of a minority; marijuana use, even privately at home, is one of them."

For those who claim to love freedom yet support prohibition, know that Iran, Iraq and North Korea have more progressive cannabis policies than the U.S., whose policy is actually more in line with that of the Islamic State of Iraq and Syria (ISIS). 

In 1785's Groundwork for the Metaphysics of Morals, German philosopher Immanuel Kant argued that we are rational, moral agents who can discern right and wrong, yet a state that dictates morality destroys one's capacity to act morally by suppressing the autonomous exercise of personal reason. Likewise, the aforementioned On Liberty, a 1859 work by U.S. philosopher John Stuart Mill, argued, "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

With prohibition, the state dictates morality against a person's will for an act that does not directly harm others. In doing so, the state damages the very principles, documents and declaration upon which this country was founded. These are not the values of our Founding Fathers. George Washington owned one of the nation's largest hemp farms, which means he would be subject to arrest under the current federal prohibition, even though Virginia legalized hemp farming on a state level in July 2016. 

America values life, liberty and the pursuit of happiness. Prohibition does not. Just as independence and moral dictatorship cannot co-exist, neither can prohibition and patriotism. The U.S. cannot take pride in its independence when it steals the rights of the majority to appease the moral doctrine of the minority. 


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