Prohibition, the Constitution, and the Path to Legalization

The following is a transcript of a talk I gave on Thursday, May 24th, 2018 at the Exploring Psychedelics conference in Ashland, Oregon. The talk was entitled "Prohibition, the Constitution, and the Path to Legalization."

This talk overviews parts of the thesis of my forthcoming book, tentatively entitled, "Psychedelic Revolution: Living Better with Psychedelic Drugs, and Why Prohibition is Unconstitutional."

Presumably, most people in this room think that psychedelic drugs should be legal, and legal even in the nonmedical context—that one should be free to possess psychedelics in the home. And, if you are anything like me, some of you have likely spent some time arguing to that effect, arguing that psychedelic drugs should be legal. No doubt much ink has been spilled arguing that psychedelic drugs should be legal.

But, it is my attempt here to encourage us to shift the tone, the nature of our end of this conversation. I would like to take it from one of mere entreaty that psychedelics ought be legal, to a demand that they must.

What do I mean psychedelics must be legal? Well, every law in the United States must, of course, abide by the Constitution of the United States. The prohibition of psychedelics simply does not.

Hence, psychedelics must be legal.

So this talk, unfortunately, is going to be less a fun and sexy talk about psychedelics, and something more like a constitutional law class. But, before you opt for a nap now knowing the subject of this talk, I can say that we will be discussing one of the most interesting, exciting, and controversial areas of constitutional law.

And, more germanely, I think it is important for the movement to understand this constitutional angle and it's importance.

And, to illustrate that importance, we begin with an anecdote:

On June 25th, 2015, fourteen states still prohibited same-sex marriage. However, on June 26th, 2015—overnight and 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.

Now, while the political winds had certainly been shifting 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 vein, I find it exceedingly unlikely that Congress and the fifty state legislatures will of their own accord get around to repealing the federal prohibition and the analogous state statutes, respectively.

That is to say, if the goal is full legalization nationwide at both the state and federal level, then this will almost invariably come by way of the judiciary, rather than our notoriously ineffectual legislative bodies—just as it ultimately did with gay marriage.

So it is a constitutional argument then, rather than a mere policy argument, that will get the ball into the end zone. In short, a winning constitutional argument is not only the sufficient but likely the necessary cause for change.

Happily, just such a winning constitutional argument is available. And, I like to think I have it in hand, and at its most forceful.

And I will share it with you right now.

The prohibition of psychedelics violates both equal protection and due process.

Due process and equal protection 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 whereas equal protection plays a mere supplementary role, and so for the purposes of this talk—for the purposes of time constraints—we will focus exclusively on this due process component.

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—one in the Fifth Amendment, and one in the Fourteenth Amendment. The due process clause of the Fifth Amendment constrains the federal government, whereas the due process clause of the Fourteenth Amendment applies to the states.

So, between both clauses, this argument applies with equal felicity to both the federal prohibition as well as the analogous state statutes.

That is to say, should the Supreme Court eventually field this argument or some variation thereof—as I believe they inevitably will—then it would render psychedelics legal nationwide at both the state and federal level.

Now, I think when most people think of "due process," they tend to think of things like a 'right to a jury of one's peers,' a' right to a speedy trial,' or a 'right to counsel,' etc, etc. But, while these surely are matters of due process, such procedural concerns do not, in fact, exhaust the doctrine of due process. There is another component of due process.

Namely, what is referred to as "substantive due process."

Substantive due process is not so much concerned with mere procedural fairness but rather speaks to notions of justice more broadly. It looks to the reasons behind the law. So, no matter how ostensibly fair and exhaustive the procedural mechanisms preceding a deprivation of liberty, a government action can still violate due process if it lacks adequate justification.

Essentially, substantive due process is invoked where a law burdens a liberty, but one which is not explicitly enumerated in the Constitution. For example, although the words "abortion" or "marriage"—much less, "same-sex marriage"—are not in the Constitution, the Supreme Court has nevertheless held that these rights are implicitly protected by the due process clause. Prohibitions on these liberties, the Court has held, lacked adequate justification.

Now, what constitutes "adequate justification" depends upon the nature of the liberty at stake. It depends upon whether the law burdens a "fundamental right."

We will come back to what a "fundamental right" is in a moment.

If a law is challenged under substantive due process, and the court finds it does not burden a fundamental right, then they will apply what is called the "rational basis" test. Here, the law must be merely "rationally related" to a "legitimate" government interest. This has proven a very low bar for the government and laws subject to rational basis are typically upheld as constitutional.

However, if a law a law burdens a fundamental right, then the court will apply so-called "strict scrutiny." Here, the law must be "narrowly tailored" to a "compelling" government interest. This is a far more exacting standard, and laws subject to strict scrutiny are generally struck down as unconstitutional.

So, given these widely disparate standards of review, this threshold inquiry of whether a law burdens a "fundamental right" is largely outcome-determinative. Thus, in arguing the prohibition of psychedelics violates due process, we shall first seek to establish that it burdens a so-called fundamental right.

So, what is a fundamental right?

Well, a fundamental right, the Court has stated, is one which is “implicit in the concept of ordered liberty.”

Now, you will be forgiven if that does not entirely clear up the matter up for you...

Indeed, the courts and legal commentators have struggled to provide an objective definition, a clear way of divining these so-called fundamental rights. You can see on the slide some of what has been said in this regard, but every such formulation is inevitably problematic in one way or another; always less than as precise as we would like.

Frankly, I think my own definition is as good as any: Fundamental rights are those which are, like, really—really, really—important.

That may, in fact, be the best we can do. For better or worse, it is invariably a subjective, know-it-when-you-see-it type of endeavor.

In any event, can psychedelic drug use be plausibly deemed a "fundamental right"?

Well, ultimately, I am going to argue in the affirmative. But not exactly in so many words. We need to dress this statement up a little—we need to lawyer it up a little. What I mean can be illustrated by way of analogy to a case called Griswold v. Connecticut.

In Griswold v. Connecticut the Supreme Court invalidated a ban on contraceptives. But the Court did not come out and say contraceptive use is a "fundamental right" as such. Rather—based on the Fourth Amendment, and based on other constitutional provisions, and based on past due process precedents—the Court determined the Constitution implicitly protects a fundamental right to privacy. And the Court went on to hold that this ban on contraceptives impermissibly infringed upon this more encompassing, loftier-sounding fundamental right to privacy.

And this newly-established fundamental right to privacy in Griswold, in fact, has been the rubric by which many additional, particularized unenumerated liberties have gone on to receive constitutional protection.

For example, in Roe v. Wade, the Court held that a blanket ban on abortion unconstitutionally violated this fundamental right to privacy. And so too with anti-sodomy laws. And so too with bans against the private possession of pornography. In each case, the Court held that proscribing these liberties impermissibly infringed upon the fundamental right to privacy.

So, can the prohibition of psychedelics likewise be deemed an unconstitutional burden on privacy?

Well, I think a compelling argument can in fact be made in this direction. However, I also think that framing psychedelics primarily in terms of privacy would actually undersell our case; undersell the nature, the gravity of the right at stake.

Now, in my forthcoming book, I certainly argue that prohibition trespasses upon notions of privacy—as well things like religious liberty, and medical autonomy, and bodily autonomy generally.

But if we were to state the argument concisely, I would not, again, primarily frame psychedelic drug use in terms of privacy nor any of the aforementioned. I think we can do better.

Rather, my thesis, in a word, is that the prohibition of psychedelic drugs unconstitutionally infringes upon the fundamental right of cognitive liberty, or freedom of mind.

Surely, if there were ever an unalienable "fundamental right," it is the right to think what and how one wishes. As author Sam Harris has written, "I can think of no right 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 not only invoking a fundamental right, but the most fundamental of rights.

And the Supreme Court agrees and has basically said as much.

Of freedom of thought, or freedom of mind, the Court has stated it is the “the beginning of freedom,” and “liberty in the most literal and fundamental sense” and, finally, “the matrix, the indispensable condition, of nearly every other form of freedom”

They have even gone so far as to say, “Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.”

So, by framing psychedelics in terms of cognitive liberty, we are surely in "fundamental right" terrain.

However, there is one small additional piece here.

Recall that the whole point of this "fundamental rights" business is to trigger "strict scrutiny," that more demanding standard of judicial review. Well, it is generally said the law must substantially burden a fundamental right in order to trigger strict scrutiny; a mere de minimis burden will not do.

So, what is the nature, the weight, of the burden on cognitive liberty imposed by the prohibition of psychedelics?

Well, I would argue, frankly, an enormous one. As many of you are probably aware, some of our most beloved works of art and literature—and some of the most important scientific or philosophical insights—were attributed to insights gleaned while under the influence of psychedelics.

In recent clinical trials, psychedelics are not only curing—curing—things like PTSD, depression, and addiction, but in addition, participants are describing their experience as among the most spiritually significant and personally meaningful of their lives.

Psychedelics are the most powerful means for shaking up the world of thought. Their prohibition, therefore, represents perhaps the most egregious burden on cognitive liberty possible.

Perhaps one day the government will attempt to nefariously wield some type of mind-control device against us, and maybe this would represent a greater undermining of cognitive liberty. But, as it stands, I can scarcely imagine a grosser, more egregious burden on cognitive liberty than the prohibition of these most powerful, these most beneficial, consciousness-altering substances.

And with that, we have surely gotten psychedelic drug use into the "fundamental right" bin and thus triggered "strict scrutiny" and therefore most of the heavy lifting is behind us.

As you recall, strict scrutiny demands the government have a "compelling interest" behind the law, and that the law be “narrowly tailored” to that interest. It only needs to fail at one prong to be unconstitutional, but I think it in fact fails at both. But let us look at each in turn.

So, the first—"compelling interest." Is there a "compelling interest" behind the prohibition of psychedelic drugs?

Well, leading experts maintain psychedelic drug use is as safe as riding a bicycle or playing soccer. Now, we do not prohibit motorcycles or boxing, much less bicycles or soccer. So, no, there is no "compelling interest" associated with this nominal level of risk. Or perhaps that is to apples to oranges of a comparison for you, in which case we could talk about alcohol, for example.

Alcohol is a far more dangerous than any of the classic psychedelics. Yet, of course, it is permitted, and thus the under-inclusiveness of our drug policy here gives lie to the notion there could possibly be a compelling interest behind the prohibition of these far safer substances.

But, even if the government could successfully demonstrate there is a compelling interest behind the prohitibion of psychedelic—which they cannot—they would then have to show the law is "narrowly tailored" to that interest, i.e., that it infringes upon the right as minimally possible. And this, again, they cannot do.

A blanket prohibition is simply not a "narrowly tailored" statute.

There is a myriad of things we could to mitigate the negligible risks associated with psychedelics short of a blanket prohibition. We can surely apply DUI-type laws and public intoxication laws to psychedelics. Certainly, there will be age restrictions to purchase psychedelics.

And we could go stricter from there as seen fit. But, again, there are many things that could be done to minimize the nominal risks associated with psychedelics, but surely the contemporary blanket prohibition is not a "narrowly tailored" statute.

So there you have it. The prohibition of psychedelic drugs violates due process.

People will sometimes say that there is a lot of grey area in the law. This is true. And this is especially true when it comes to constitutional law—it is a rather thin document after all. And, admittedly, this is all the more true when it comes to this particularly subjective area of constitutional law.

But, frankly, even granting all that, I can scarcely imagine a more unambiguous violation of substantive due process.

Again, we are talking about a law which burdens the most fundamental right, cognitive liberty, and in perhaps the most egregious way possible. And all in relation to an activity that is safe as riding a bicycle...

The prohibition of psychedelics is patently, blatantly unconstitutional.

Now, just a few words in closing.

This might seem like a strange thing to say, but it is in fact a good thing that the prohibition of psychedelics is so unambiguously unconstitutional. Because this means that to achieve nationwide legalization, we needn't move Congress and the fifty state legislatures to action. We need, ultimately, only to convince five people in robes.

So how do we force the issue? How do we hasten the Supreme Court to take up this case?

Well, perhaps you have heard it said that "politics is downstream from culture." This seems to be true. Recall again the example of gay marriage.

When did the Supreme Court take up this case? Well, it was only after television normalized homosexual cohabitation, after celebrities spoke out on the issues, after politicians found it expedient to publically voice support for same-sex marriage...

The Supreme Court took up the case when the movement reached critical mass.

And notice, encouragingly, that this happened—at least by my lights—relatively quickly. Popular opinion on gay marriage shifted dramatically from the 90's to the 2000’s.

And so it can go with psychedelics. The Supreme Court will take up the case when the movement reaches critical mass.

So keep talking, keep writing, keep retweeting, keep funding research...and in this way, the snowball will build, and build, and build...and eventually crash through the doors of the Supreme Court.

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PS - Please keep an eye out for my forthcoming book: