Judicial Junk: Modern Jurisprudence in the Supreme Court

The United States Supreme Court is truly one of the unique establishments of our government.  Of the three branches as outlined by the Constitution, it is the only one whose members are not elected by public vote.  American voters have no direct say in the men and women whose job it is to interpret the most far reaching law of the land.  Supreme Court justices are provided with just about the most job security anyone will find anywhere, especially in government; their tenures can only be ended by voluntary retirement, impeachment (to which only Associate Justice Samuel Chase has been subject to in the Court's history, in 1805, and he was acquitted), or death.  At first glance, this would seem to be antithetical to a democracy, but the framers of the Constitution, in all their brilliance, reconciled this supposed inconsistency with two ingenious safety devices.  Firstly, nominees to the Supreme Court are chosen solely by presidents, who are of course popularly elected.  The second device is precisely what makes these choices nominees, in that in order for them to become Supreme Court justices, they must be approved by the Senate (in one unfortunate mistake, the framers did not specify what constituted Senate approval). The framers must have recognized that the citizenry could lend its input to the Judicial branch through its votes in the Executive and the Legislative.  

While it is not included in the text of the Constitution, it was quickly established after its ratification in Marbury v. Madison (1803) that the mandate of the Supreme Court is to be the chief arbiter of the Constitution.  As one of the earliest and most defining decisions of the court, this interpretation of the its duties became the widely accepted responsibility of the court.  This makes perfect sense, for as Chief Justice John Marshall wrote in the opinion of the court in Marbury:  

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.  Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law [e.g., the statute or treaty].  This doctrine would subvert the very foundation of all written constitutions.

This defined role of the Supreme Court, known as judicial review, is a third and critical safeguard for the relative undemocratic nature of the Supreme Court.  Admittedly, this doctrine is not found in the original text of the Constitution, but it has been established for so long, and for so long was the operative method of the court, that it has become woven into the fabric of our judicial system.  You would be hard pressed to find a more unchallenged example of stare decisis (precedent) in the court's history.  As unelected officials, these justices do not have power to make laws, rather, to interpret the existing laws as outlined in the Constitution.  They are bound by the foundational laws of the Constitution which cannot be challenged or disputed unless by amendment, a process in which the Supreme Court plays no role.  Critics will say that this requires justices to have a nearly supernatural ability to discern some underlying meaning, or original intent, of the text itself and apply it to a wide range of cases that go beyond the scope of the Constitution.  They will also say that this requires judges to strike down all laws violating the Constitution despite the consequences of their ruling.  Thinking of this sort widely expands the power of the Supreme Court, and is the source of the famous "legislating from the bench" approach to jurisprudence.  How can we reconcile this with the indirect nature of how the court's members are chosen, and still purport to be a democracy?  How can we expect accountability to the law from nine people whose tenure is without public review, barring the exceedingly rare case of impeachment?   We cannot, on both counts. 

I am not so radical as Clarence Thomas.  I do not expect Supreme Court justices to make guesses on exactly the mindset of the framers when they put quill to parchment, and then apply them to the modern and complex cases that come before the court today.  I believe there will be good and bad arguments as to the interpretation of the Constitution that will scale with evidence, reasonableness, and logic.  There is a reasonable argument to be made, for example, that parts of the Constitution establish a right to privacy, specifically the Ninth Amendment.  Arguments such as those made by Sandra Day O'Connor in Grutter v. Bollinger, regarding the University of Michigan's use of racial preference in its law school admissions, clearly draw not even tenuous support from the Constitution, and in the case of Grutter, are even contradictory to it.  It seems to me that any mechanism that lends preference to one person over another solely on the basis of race is in clear violation of the Equal Protection Clause of the Fourteenth Amendment, especially as it has historically been interpreted by the court.  Also in Grutter, O'Connor seemingly put an expiration date on the ruling:  "We expect that 25 years from now, the use of racial preferences will no longer by necessary to further the interest approved today."  Is this a Supreme Court justice talking, or a legislator?  Is she interpreting the law, or making it up based on what Justice O'Connor deems society needs?  If it is the latter, isn't that the responsibility of the legislature, and not the Supreme Court?  Perhaps the most salient question is this:  If the use of racial preference in Michigan's admissions will be unconstitutional in 25 years (I'd love to know where she got 25 years, by the way), why is it constitutional now?  How do future societal changes, whatever they may be, change anything about what the Constitution says on the matter?  The answer is simple:  she isn't making her ruling based on any real interpretation of the Constitution.  This is distinctly different from arguments for rights to privacy, because right or wrong, many privacy rights advocates draw their logic from the words of the Constitution.  

Sadly, O'Connor's jurisprudence is not unusual among her fellow Supreme Court justices or in the lower courts.  "Activist" judges such as these draw their ruling inspiration from politics, personal values, and other illegitimate forms of evaluating cases.  Even the champions of originalism, Antonin Scalia and Clarence Thomas, are not impervious to the temptation to obfuscate their mandate as Supreme Court justices (see: Bush v. Gore).  Where does this leave us with our judicial system? The Supreme Court confirmation process is manifestly broken, as nominees are largely able to tread water just enough to be confirmed with little real investigation as to their jurisprudence.  It also emphasizes the importance of the upcoming election, for that is where the people have the most power to influence their Supreme Court. With John Paul Stevens at 88, Ruth Bader Ginsburg at 75, Antonin Scalia at  72, and Anthony Kennedy at 71, the next president will almost surely have an opportunity (or three) to nominate someone to the Supreme Court.  The question voters must ask themselves is simple:  which candidate is more likely to nominate judges who will honor their mandate as arbiters of the Constitution, and not agents of social change?  If you believe in the importance and influence of the Supreme Court, this question will significantly guide your choice in November.

When Myth Becomes Law: The Prohibition of Marijuana (Part 2/3)

Anyone with some familiarity of World War II history will recognize Hitler's "the bigger the lie" concept, and while eons less sinister, it is similar to how marijuana has come to be so terribly misunderstood. Cannabis is one of those sad examples of where legislation is not based on the evidence, indeed, it seems the foundations of marijuana law are based on just about anything except an objective perception of the facts. It is useful to investigate the source of marijuana prohibition, its history, and its motives.

Prior to the 1900s, not only were there no laws prohibiting the use of cannabis, it was a staple commodity in the United States, highlighting its many uses and functions. Chief of these functions was hemp, which was used to make rope, clothing, and sails. In the late 1800s, cannabis was used more frequently in medicines, and was available at pharmacies without restriction. At the turn of the century, however, cannabis regulation began to pop up in the District of Columbia, Massachusetts, Maine, California, Texas, and Indiana. Also at this time, cannabis was being referred to more commonly as "Indian hemp," referring to traditions in some Native American tribes that used the psychological effects of cannabis as a spiritual aid. As more Native Americans were assimilated into the U.S., coupled with an increase in immigration from Mexico, where recreational use of cannabis was far more widespread (introducing the term "marijuana" for the first time), more Americans became aware of the use of cannabis as a drug.

In response to the increasing opium problem China, the United States sponsored the International Opium Convention in 1912, which was the first international initiative to control drug trade. The Convention became exponentially more significant when it was incorporated into the Treaty of Versailles (ending World War I). The Convention's original agreement made no mention of cannabis. In 1925, however, as scrutiny of "marijuana" and "Indian hemp" increased, the United States together with Egypt and China, signed a revised agreement prohibiting hashish to be traded among countries that had outlawed its use (Completely speculation on my part, but the rise of terms like "marijuana" and "Indian hemp" to describe what had always been known as cannabis seems to be indicative of a racist component of these prohibitions. I would imagine associating hashish with Indians and using the Spanish word for cannabis would be powerful propaganda tools at a time where prejudice toward these two groups flourished in the United States). As cannabis had yet to be federally outlawed in the U.S. and its importation was still allowed in the form of hemp, its prohibition had yet to reach its zenith.

As the influence of the federal government grew, so did the prohibitions of cannabis. The Uniform State Narcotics Act of 1932 established a standard of drug trafficking enforcement that gave the states power to more strictly police illicit trade of banned substances. The Federal Bureau of Narcotics strongly encouraged all state governments to adopt the law. By this time, almost all of the states had some kind of cannabis regulation for non-medicinal use. For the first time, there was federal and multiple state collaboration in policing cannabis trade for recreational use. The Federal Bureau of Narcotics (FBN) and its head, Harry J. Anslinger, are the Nazi Party and Adolf Hitler of my original analogy, respectively. Anslinger used the FBN to spread propaganda about the dangers of marijuana use, and myths about marijuana exploded into the public consciousness. Anslinger claimed marijuana caused people to commit violent crime, act overtly sexual, and overall irrational. Through the FBN, Anslinger organized the production of propaganda films (http://www.youtube.com/watch?v=bM_vLk1I6G4), radio advertisement, and print advertisement (pictured), that echoed his message. Theories about Anslinger's motives abound, but it is clear his motivation had much to do with the 21st Amendment, repealing the prohibition of alcohol, that had been established in the 18th Amendment (and we should note how much of an unmitigated disaster the prohibition of alcohol was). Anslinger, previous to his leadership of the FBN, was the Assistant Prohibition Commissioner in the Bureau of Prohibition, which was charged solely with enforcing the prohibition of alcohol. When this group was dissolved, many of Anslinger's employees and friends were left unemployed, and the infrastructure that had been in place for alcohol prohibition was left abandoned. Some believe Anslinger filled the void by implicating marijuana as a drug dangerous to public health. Other historians believe Anslinger was misled by racially driven and inaccurate studies of cannabis use at the time, which claimed to be of scientific origin. Whatever the reason, Anslinger had begun a cycle of ignorance that continues to be felt to this day.

If Anslinger is the Adolf Hitler of our sad story, William Randolph Hearst is the Nazi Propaganda Minister Joseph Goebbels. Hearst, who was the most powerful media mogul of the time (perhaps akin today to Rupert Murdoch, but even more influential), used his newspapers to propagate the myths permeating society about marijuana. It should be noted that any coordination or cooperation between Anslinger and Hearst's efforts are tenuous, although some strange coincidences exist. I invite you to investigate these further at your own pleasure. Nevertheless, Hearst was an agent in the dissemination of lies about marijuana that would eventually lead to its full prohibition and in the 1937 Marihuana Tax Act and its later cousin, the Controlled Substances Act. Hearst was known to have significant financial interest in the timber industry, which controlled the production of paper. This industry was threatened by the discovery in 1916 that hemp could be used to make paper that was "favorable over that made of pulp wood." As hemp was readily available and relatively easy to produce, it posed a potentially significant problem for the timber industry. The problem would never manifest itself, however, as the Marihuana Tax Act and its related laws would ensure in 1937, as Hearst's publications continued to criticize marijuana. Interestingly, New York Mayor Fiorello LaGuardia, who was in strong opposition to the Marihuana Tax Act, started the LaGuardia Commission, investigating the fantastical claims against cannabis that were becoming entrenched in public opinion. Prepared by the New York Academy of Medicine in 1944, the LaGuardia Commission systematically contradicted claims that smoking marijuana results in insanity, deteriorates physical and mental health, assists in criminal behavior and juvenile delinquency, is physically addictive, and is a "gateway" drug to more dangerous drugs. Despite this scientific study, no changes were made to national policy, a reoccurring theme in subsequent studies on the subject that found similar results, such as the Nixon Administration's National Commission on Marijuana and Drug Abuse.

As time went on, no self corrections were made in either public opinion or federal legislation. The damage had been done. Soon, mandatory sentencing guidelines were passed in the 1950s, repealed, and then reestablished in the 1980s. The fractured agencies that had previously enforced drug laws were combined in 1973 into the Drug Enforcement Administration (DEA). In 1975, the Supreme Court ruled that it was "not cruel or unusual for Ohio to sentence someone to 20 years for having or selling marijuana." In 2005, the Supreme Court ruled that it was constitutional for the federal government to ban marijuana, even medicinal use, under their interpretation of the Commerce Clause of the Constitution. What a sad state of affairs.

The third and final section of this three part piece on marijuana in the United States will focus on the economic consequences of marijuana prohibition.

Sources:

http://www.druglibrary.org/schaffer/people/anslinger/traffic/appendix1.htm

http://www.druglibrary.org/schaffer/hemp/taxact/t10a.htm

http://www.druglibrary.org/schaffer/History/e1960/learyvus.htm

http://www.archives.gov/research/guide-fed-records/groups/170.html#170.3

http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/ille-e/library-e/history-e.htm

http://web.archive.org/web/20050503135942/www.sfbg.com/News/35/36/legis.html

http://www.deamuseum.org/dea_history_book/1970_1975.htm

http://www.usdoj.gov/dea/pubs/history/1985-1990.html

http://www.medicalmarijuanaprocon.org/pop/StatePrograms.htm

http://openweb.tvnews.vanderbilt.edu/1975-12/1975-12-01-NBC-5.html

Defying Reason: The Prohibition of Marijuana (Part 1/3)

This will be the first of a three part look into marijuana policy in the United States. As I have made my way in the world as a young adult, especially in my experiences at college, I have interacted with heavy and casual marijuana users. I was initially surprised when I noticed a pattern developing in conversation with these people: they suffer little or no adverse physical affects from smoking, do not consider themselves addicted to it, and consider the use of alcohol and tobacco to be more dangerous to their health. My first reaction was to dismiss this as "pot-heads" rationalizing their use of illicit drugs. Marijuana, after all, is illegal in all its forms in the United States, with the exception of those few states that have decriminalized its medicinal use as prescribed by a physician. The illegality of cannabis and its stigmatization in the public eye had lead me to assume, to this point in my life, that it is a dangerous drug to public health that should remain steadfastly prohibited. As I have looked into the subject more deeply, however, I have come to believe that the prohibition of marijuana is one of the most illogical domestic policies currently active in the United States.

What reason does the government have for actively prohibiting the use of drugs? Clearly the first answer would be in the interest of public health and safety. This case is easily made for drugs of abuse such as LSD, heroin, cocaine, ecstasy, PCP, etc. These are substances that carry serious short and long term health consequences. All of them carry great risk for overdose leading to death, and in the case of heroin, cocaine, and similar drugs, there is a risk of physical dependence and addiction. As a Libertarian I have philosophical objections to prohibiting free citizens from doing anything in the privacy of their own home, but I do not deny the practicality of prohibiting drugs of this sort. The problem, however, is that none of these dangerous characteristics can be attributed to cannabis.

In reaction to a more open attitude toward cannabis in the 1960s, President Nixon in 1972 started the National Commission on Marijuana and Drug Abuse, expecting its findings to support the long standing prohibition of the drug. The Commission's report, however, drew some damning conclusions for U.S. marijuana policy:

"Marijuana's relative potential for harm for the vast majority of individual users and its actual impact on society does not justify a social policy designed to seek out and firmly punish those who use it. This judgment is based on prevalent use patterns, on behavior exhibited by the vast majority of users and on our interpretations of existing medical and scientific data. This position is also consistent with the estimate by law enforcement personnel that the elimination of use is unattainable."

Washington, D.C.: National Commission on Marijuana and Drug Abuse, 1972.

The Nixon Administration promptly swept the Commission's findings under the rug, and no federal policy changes were made as a result. Sixteen years later, there was still no credible evidence that smoking marijuana poses imminent health risks, as the Drug Enforcement Administration's Law Judge, Francis Young, concluded:

"In strict medical terms, marijuana is far safer than many foods we commonly consume. For example, eating ten raw potatoes can result in a toxic response. By comparison, it is physically impossible to eat enough marijuana to induce death. Marijuana in its natural form is one of the safest therapeutically active substances known to man."

U.S. Department of Justice, Drug Enforcement Agency, 1988.

So, unlike almost all other illicit drugs, there is no known lethal dosage of cannabis. This in and of itself should be an indictment of public policy toward marijuana. However, studies have also concluded that cannabis has no physically addictive properties. In fact, less than 1% of Americans use cannabis on a daily basis (United States Department of Health and Services, 2002). Also differing from most other illegal drugs, cannabis has little or no adverse effects on a developing fetus (Parents Resource Institute for Drug Education). As far as its long term effects, marijuana smoke does contain some irritants and carcinogens that can be damaging to the lungs with heavy use, however the lack of dependence on cannabis results in more moderate use that does little cumulative long-term damage. Furthermore, studies measuring cognitive impairment and brain deterioration have failed to identify marijuana as a cause of these effects (Ali, S.F., et al. "Pharmacology Biochemistry and Behavior").

The evidence overwhelmingly supports the determination that the use of cannabis, especially responsible moderate use, has no debilitating or dangerous physical or cognitive effects, long-term or otherwise. There is no lethal dose, there is no risk for physical dependence, and the long-term effects are minimal outside of daily and excessive use. It is reasonable to conclude, upon some research into reputable sources, that cannabis should be decriminalized on its own merits. Where the prohibition of cannabis really becomes absurd is when it is compared to other, legal, substances. Concerns about the health of American citizens are red herrings in this debate, as the legality of alcohol and cigarettes attests. The fact that people are being thrown in jail for nonviolent marijuana offenses, while alcohol remains a staple commodity, is a travesty almost beyond description. By any standard one wishes to apply, alcohol is the more dangerous substance. Its lethal dose is rather easily achieved, and its role in causing car accidents is beyond dispute. Alcohol's tendency to relieve people of their inhibitions leads to violence, unplanned pregnancy, the spread of sexually transmitted diseases, and spousal abuse. Alcohol is well known to be addictive, and its prolonged use can result in devastating neurological impairments, liver cancer, heart disease, hypertension, liver cirrhosis, prostate cancer, stroke, and even breast cancer (Center for Disease Control, 2001). The consumption of alcohol by pregnant women is known to be extremely toxic to a developing fetus, resulting in fetal alcohol syndrome, premature birth, low birth weight, and growth retardation. According to the Center for Disease Control (CDC) alcohol use directly resulted in the known deaths of 75,766 people in the U.S. alone in 2001, a number that only increases with each passing year.

Nicotine and cigarettes also do not hold up in comparison to marijuana. Countless scientific studies attest to the highly addictive properties of nicotine, resulting in its physical dependence. According to the CDC, in 2004 81.3% of smokers smoked daily, and of these, 28.4% smoked 5-14 cigarettes per day (http://www.cdc.gov/MMWR/preview/mmwrhtml/mm5444a2.htm). The consequences of this behavior is well-documented. The CDC estimates that about 438,000 people die each year from smoking tobacco. Cigarettes are attributed to lung cancer, heart disease, arterial diseases, emphysema, chronic airway obstruction, lip and esophagus cancers, stomach cancer, pancreatic cancer, cervical cancer, and leukemia, also according to the CDC. In fact, adverse reactions and misuse of over the counter drugs like aspirin and ibuprofen, account for an estimated 7,600 deaths and 76,000 hospitalizations in the United States each year. The U.S. Consumer Product Safety Commission estimates that since 1995, vending machines have killed 37 people in the United States, and resulted in 113 hospitalized injuries. The CPSC now requires vending machine manufacturers to provide warning labels for all public machines. Marijuana kills no one. It seems that almost everything human beings do; driving cars, flying in airplanes, cooking, walking down the steps, playing golf, is more dangerous than smoking marijuana in the privacy of one's own home.

Where does all of this leave us in regard to marijuana laws in the United States?  On the federal level, marijuana remains a "Schedule 1" drug, a category reserved for highly addictive, dangerous drugs with no approved medical use.  By contrast, cocaine and some amphetamines are "Schedule 2" drugs, which are legal under certain conditions and are stringently regulated. To this day, people are still recieving life sentences, without the possibility of parole, for growing, selling, distributing, buying and possessing certain quantities of what is, in fact, a natural occurring plant. Cancer patients and paraplegics have been sentenced to years in prison for using marijuana in a medicinal context (a practice which has significant support among many doctors and researchers). Owners of garden supply stores have been given similar sentences because their customers were caught growing marijuana. Are there no bounds to the irrationality that can dictate our laws and the way in which we govern ourselves? The fact that we have allowed policies of this sort to continue for almost a 100 years borders on collective masochism. The government, nor anyone else for that matter, has any legitimate right to dictate what I will and won't do that does not infringe on the civil liberties of other people, especially in the case of marijuana, which has no discernible health risks that call for its prohibition.

Part 2 of this 3 part piece on U.S. marijuana legislation will focus on the common myths associated with cannabis. Part 3 will center around the economic consequences of our marijuana laws.

Sources:

From the CDC:

http://www.cdc.gov/tobacco/data_statistics/Factsheets/cig_smoking_mort.htm

http://www.cdc.gov/MMWR/preview/mmwrhtml/mm5444a2.htm

http://www.cdc.gov/MMWR/preview/mmwrhtml/mm5337a2.htm

From the CPSC:

http://www.cpsc.gov/CPSCPUB/PREREL/PRHTML96/96011.html

From the American College of Physicians:

http://www.acponline.org/

Other sources were cited directly in-text.