Prohibition, the Constitution, and the Path to Legalization – Andrew Joseph
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Prohibition, the Constitution, and the Path to Legalization – Andrew Joseph

October 9, 2019

Presumably most people in this room think that psychedelics should be legal and even in the non-medical, okay Yeah, that’s a safe assumption, right and even in non-medical context that people should be free to possess psychedelics even in the home and For anything like me perhaps you’ve spent some time arguing to that effect arguing that psychedelic drugs should be legal No doubt, a lot of ink has been spilled arguing that psychedelic drugs should be legal it was my attempt here today to begin to encourage us to Shift the nature the tone of our end of that conversation I would like to take it from one of me or entreaty that psychedelic drugs ought be legal to a demand that they must and What do I mean psychedelics must illegal? Well every law in the United States must of course abide by the Constitution of the United States The prohibition of psychedelic drugs simply does not hence psychedelics must be legal Oops So this talk is gonna be less a fun and sexy talk on psychedelics and more something like a constitutional law class And that explains the tie by the way, which I realize is a little too stuffy for this kind of event But it’s not just kabuki. Not just because I’m pretentious but I’m trying to look the part here And I also say Before you decide to doze off now knowing topic out the conversation. We will be discussing one of most interesting and exciting and controversial areas of constitutional law and more importantly I think it’s important for the movement to understand this constitutional angle and to understand the importance of this constitutional angle and To begin to illustrate that importance. We begin with an anecdote slide, please on June 25th 2015 Can we scroll down I Don’t work June 25th 2015 14 states still prohibited same-sex marriage. However on June 26th 2015 overnights with the stroke of a judicial pen same-sex couples were free to marry nationwide and Thus is the power of a winning constitutional argument Yeah So I’m sorry So while the political winds and attitudes were certainly changing in regards to gay marriage at that time it nevertheless remained unclear how long Mississippi for example would have persisted in denying marriage equality And in the same way, it seems exceedingly unlikely to me that Congress and the 50 state legislatures will of their own accord get around to repealing prohibition That is to say if the goal is full legalization nationwide at both the state and the federal level then this will almost invariably come by way of the judiciary rather than our notoriously ineffectual Legislative bodies just as the way it altima lead. It’d in regards to gay marriage So it is a winning constitutional argument then rather than a mere policy argument They’ll get the ball into the end zone is a winning a constitutional argument in short that was not only the sufficient but likely the necessary cause for change and Happily just such a constitutional argument is available I’d like to think I have it in hand and it’s most forceful and I’ll share it with you right now So I slide please The prohibition of psychedelic drugs violates both due process and equal protection These are interrelated doctrines where a claim is brought under one. Typically the other shows up as well but in this argument due process plays the ascendant role where it’s equal protection plays merely a Supplementary role and so for the purposes of this talk the purpose it Excuse me for the purposes of time constraints. We’re gonna focus exclusively on this due process component and Slide, please The due process clause maintains that the government shall not deprive anyone of life liberty or property without due process of law There are in fact two due process clauses in the Constitution One in the Fifth Amendment and one in the Fourteenth Amendment the Due Process Clause of the Fifth Amendment constrains the states No, I got that backwards applies to the federal government. Whereas the Due Process Clause of the Fourteenth Amendment constrains the states and therefore between both clauses The following argument will apply with equal Felicity to both the federal prohibition as well as the analogous state statutes So let’s say if the Supreme Court eventually fields this argument or a variation thereof Then it will rend those ill render psychedelic drugs legal at both the federal and the state level nationwide Now when most people think of due process I think they tend to think of things like The right to a speedy trial the right to a jury of one’s peers the right to counsel And while these surely are matters of due process such procedural concerns Not in fact exhaust the doctrine of due process there is a another component to due process namely was referred to as Substantive due process and slide, please And under substantive due process. We are not so much concerned with mere procedural fairness rather Substantive due process looks to Notions of justice more broadly. It looks to the reason behind the law so no matter Excuse me, no matter how ostensively fair or exhaustive the procedural mechanisms in place preceding a deprivation of Liberty The government actually can still violate substantive due process if it lacks adequate justification A the substantive due process is invoked where a law burdens that given liberty but one which is not explicitly enumerated in the Constitution For example Although the word abortion or marriage much less same-sex marriage, although these words are not in the Constitution. The Supreme Court has nevertheless held That burdens on such liberties Violated due process. These laws were found to lack adequate justification Now what constitutes adequate justification Varies depending upon the nature of the Liberty at stake. It varies depending upon whether there is a so-called Fundamental rights at stake and we will get to what those are in a moment, but first slide, please Where a boss challenged under substantive due process that’s an intimidating-looking slide I realize now where a law is challenging our substantive due process and the Court finds that there is no fundamental right state then they will apply what it’s called the rational basis test and here the law must be merely rationally related to A legitimate government interest and this has proven a very low bar Law subject to the rational basis test are generally upheld as constitutional However where the law burdens a fundamental right then the court will apply so called strict scrutiny and Here the wall must be narrowly tailored to a compelling government interest and this is a far more Exacting standard and lost subject to strict scrutiny Are generally struck down as unconstitutional So given these widely disparate standards of review This threshold inquiry of whether the law burdens a fundamental rate is largely outcome determinative so so in arguing that Prohibition violates substantive due process. We’ll first we’ll first seek to establish that it burdens a so-called Fundamental right. So what is a fundamental right slide, please? a Fundamental rights, the court has explained is one which is implicit in the concept of ordered liberty You will be forgiven if that is not entirely clear the matter up for you Indeed the courts and legal commentators have struggled to provide a an Objective definition a clear way of divining these so-called Fundamental rights. You can see on the board some of Oh Gave away my joke. They’re supposed to be anyway my definition I was gonna say I think is as good as any it’s at the bottom their Fundamental rights are those which ones that? Are like really really really important? I think it’s the best we can say it’s inherently a kind of subjective Know it when you see it type of endeavor in any event. The question is Can psychedelic drug use be plausibly deemed a fundamental right? That is the question Well, ultimately I’m going to argue in the affirmative but not exactly in so many words we need to dress up this statement a little need to Lawyer it up a little and what I mean can be explained by way of analogy to a case called Griswold v, Connecticut Slide, please And Griswold v Connecticut the court struck down a law which banned contraceptives Now the court did not come out and say that contraceptive use was a fundamental, right? rather based on the Fourth Amendment based on other constitutional provisions based on past due process precedents the Court determined that the Constitution implicitly protects a fundamental right to privacy and the court went on to hold that this fundamental right to privacy was innocent by this ban on contraception and Slide, please. And this fundamental right to privacy is in fact been the rubric by which many more additional Particularized unenumerated rights have went on to receive constitutional protection for example in roe v wade the court held that the blanket ban on abortions was an unconstitutional Was an unconstitutional violation of this fundamental right to privacy Same with anti sodomy laws and so too with the private With laws that ban the private possession of pornography in each case the court found again That the fundamental rights privacy was infringed by these laws Soken cycle, excuse me, can the prohibition of psychedelic drugs be likewise deemed to violate this fundamental right to privacy Well, I think compelling arguments can be made in this direction However, I would not primarily frame psychedelics Psychedelic drug use in terms of privacy. I think that under sells our case I think that under sells the nature of the right at stake, frankly now in my forthcoming book I certainly argue that prohibition trespasses upon notions of privacy as well as things like religious liberty and medical autonomy and bodily autonomy More generally, but again, if we were going to state the argument concisely, I would not frame it primarily In terms of privacy or any of the affirmations. I think we can do better so My thesis in a word slide, please Is that the prohibition of psychedelic drugs? Unconstitutionally infringes upon the fundamental rights of cognitive liberty or freedom of mind Surely if there was ever an inalienable inalienable, can I say the word Surely if there was ever an in I won’t try to get Fundamental rights, then it must be the right to think what and how one wishes As author Sam Harris has written for example he says I can think of no rights more fundamental than the right to peacefully steward the contents of one’s own consciousness and Neither, can I so by framing? Psychedelic drug use in terms of cognitive Liberty. We are invoking not only a fundamental rights, but the most from the mineral rights and The Supreme Court, in fact agrees and has basically said as much slide, please of freedom of thought or freedom of mine the court has called it the beginning of freedom and liberty and the most literal and fundamental sense And they’ve called freedom of thought the matrix the indispensable condition of nearly every other form of freedom Slide, please They have even went so far as to suggest that our whole constitutional heritage rebelled at the thought of giving the government the power To control men’s minds and with that By framing psychedelic drug use in terms of cognitive Liberty. We are surely in fundamental right terrain now recall the whole purpose of this fundamental right business is to trigger strict scrutiny that higher standard of review and there’s one additional piece here is generally said that’s who That’s who trigger strict scrutiny the law must substantially Burden, the fundamental rate a mere de minimis burden will not do so What is the nature and the weight of the burden on cognitive liberty imposed by the prohibition of psychedelics? well, I would argue an enormous one as Many here are probably aware. Some of our most beloved works of art and literature some of our most dry mouth some of our most important Philosophical and scientific insights have been attributed to insights gleaned while under the influence of psychedelic drugs The psychedelic drugs are not only curing curing depression PTSD addiction and recent clinical trials in addition to that participant Participants in these trials are naming psychedelic drug use as the most Spiritually significant and most personally meaningful of their lives Psychedelics are the most powerful means for shaking up the world of thought and therefore their prohibition likely likely represents among the most egregious burdens on cognitive Liberty imaginable I mean perhaps one day the government will be capable of Nefariously wielding some type of mind-control device against us and perhaps this would represent a greater burden on cognitive livery But again as it stands I can scarcely imagine a more egregious a grosser burden on cognitive Liberty than the prohibition of these most powerful these most beneficial consciousness altering substances So and with that we have surely gotten psychedelic drug use into the fundamental right bin and hence triggered strict scrutiny Slide, please. So recall strict scrutiny demands that the government have a compelling interest Behind the wall and that this law be narrowly tailored to that interest Now to be unconstitutional it only has to fail at one prong I think it fails at both, but we will look at each in turn Compelling interest. Is there a compelling interest behind the prohibition of psychedelic drugs? Well Leading experts have described psychedelic drug use as as safe as riding a bicycle or playing soccer now. We do not prohibit Motorcycles or BOTS? Thank you. Thank you. So just when do we do not prohibit? motorcycles or boxing much less soccer or bicycles So clearly there is no compelling interest associated with this extremely extremely nominal level of risk or Perhaps us to apples to oranges of comparison in which case we can talk about alcohol alcohol, of course far more dangerous and psychedelics But yet permitted So again here the under inclusiveness of our drug policy gives live to the fact that there could possibly be a compelling interest associated with these um these far safer substances But even if the government couldn’t show that there was a compelling interest which they cannot They would then have to show that the law is narrowly tailored To that interest meaning effectively that though that the law must burden the Liberty as minimally as possible Well The blanket prohibition is simply not a narrowly tailored statute. There are many things we could do to limit the negligible risk associated with these substances Surely we will have age restrictions in place whether eighteen or twenty-one or what have you we can apply DUI type laws public intoxication type laws to psychedelics Again, there are many things that could be done But a blanket prohibition is simply not a narrowly tailor statute And that in the nutshell is the argument the prohibition of psychedelic drugs violates substantive due process Thank you And frankly on it unambiguously So people will sometimes say that there’s a lot of gray area in the law and this is true This is especially true when it comes to constitutional law and This is even all the more true when it comes to this highly subjective area of substantive due process but all that was standing granting all that I can still Nevertheless scarcely, imagine a more unambiguous violation of substantive due process again, we are talking about burdening the most fundamental rights cognitive Liberty and perhaps the most egregious manner possible and All as it relates to an activity as a safe riding a bicycle For those who understand the incredible utility of psychedelics and Appreciate their stellar safety profile. The prohibition of psychedelic drugs is patently blatantly unconstitutional Now just a few words in closing This may seem like a strange thing to say but is in fact a good thing that Prohibition is so unambiguously constitute unconstitutional Because this means again that we needn’t move to action again our notoriously in effect ineffectual Legislative bodies. It’s a slide, please Ultimately, we only need convince five people in robes so, how do we Hasten the cause how do we get the Supreme Court to take up his case? Well, perhaps you’ve heard it said that Politics is downstream and culture and this in fact appears to be true recall again the example of gay marriage slide, please the Supreme Court took up this case only after television normalized same-sex couple cohabitation only after celebrities spoke out on the issue after Politicians found it expedient to publicly voice support for same-sex marriage The Supreme Court took up the case when the movement reached critical mass and encouraged encouragingly At least by my lights. This happened relatively quickly public support for gay marriage shifted dramatically from the 90s and into the 2000s and So it can go with psychedelics. So keep talking keep writing keep retweeting and In this way, the movement will build and build and build And eventually crash through the doors in the Supreme Court. Thank you so much for listening

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