John Paul Stevens, Leading Enabler of the War on Drugs, Says Pot Prohibition Was a Big Mistake

In an
interview with NPR’s Scott Simon yesterday, former Supreme
Court Justice John Paul Stevens, who had previously expressed
support for allowing medical use of marijuana, endorsed general
legalization:

Simon: An increasing number of states are
legalizing marijuana. Should federal law?

Stevens: Yes.

Simon: We may have just made some news.

Stevens: Yes. I really think that that’s
another instance of public opinion [that’s] changed and recognized
that the distinction between marijuana and alcoholic beverages is
really not much of a distinction. Alcohol, the prohibition against
selling and dispensing alcoholic beverages, has I think been
generally—there’s a general consensus that it was not worth the
cost. And I think really in time that will be the general consensus
with respect to this particular drug.

That answer makes Stevens the first current or former member of
the Supreme Court to publicly support the repeal of pot
prohibition. Good for him. But Stevens might want to reflect a bit
on his support for the broad view of congressional power that made
pot prohibition possible, especially since he mentions the
experience with alcohol prohibition. As you may recall from history
books and as Stevens (who turned 94 on Sunday) may recall from his
own childhood, banning alcohol at the national level required a
constitutional amendment, and so did repealing it. Why? Because
everyone recognized that the Constitution did not authorize
Congress to impose its pharmacological preferences on the entire
country. Yet the Constitution was never amended  to authorize
marijuana prohibition, which was initially disguised as a revenue
measure and today is based on a reading of the Commerce Clause
broad enough to accommodate almost any legislative whim.

It was the Commerce Clause that the Supreme Court cited in 2005,
when it ruled in
Gonzales v. Raich that that the feds could arrest,
prosecute, and imprison people who grow and possess marijuana in
compliance with state laws allowing medical use. According to
Stevens, who wrote the majority opinion, it did not matter if the
marijuana never crossed state lines: The tiniest speck of cannabis,
anywhere within the country’s borders, is covered by the power to
“regulate commerce…among the several states.” That conclusion,
Stevens said, followed logically from
Wickard v. Filburn, the 1942 case in which the Court had
upheld enforcement of agricultural quotas based on the Commerce
Clause. If the Commerce Clause allows the federal government to
punish a farmer for growing wheat that never leaves his farm,
Stevens reasoned, surely it allows the federal government to punish
a cancer patient for growing or possessing marijuana that never
leaves her home. “The case comes down to the claim that a locally
cultivated product that is used domestically rather than sold on
the open market is not subject to federal regulation,” Stevens
wrote. “Wickard and its progeny foreclose that
claim.”

Justice Clarence Thomas, no fan of Wickard, saw the
issue differently. “If Congress can regulate this under the
Commerce Clause,” Thomas wrote in his dissent, “then it can
regulate virtually anything—and the Federal Government is no longer
one of limited and enumerated powers.” That prospect probably did
not worry Stevens, who dissented whenever the Court attempted to
enforce even modest limits on the scope of the Commerce Clause. In
the 1995 case
United States v. Lopez, for instance, he said a federal
ban on the possession of guns in or near schools should be upheld
because “the welfare of our future ‘Commerce with foreign Nations,
and among the several States,’ is vitally dependent on the
character of the education of our children.” 

You could credit Stevens with principled consistency, since his
opinion upholding the federal ban on marijuana apparently went
against his own policy preferences. But what exactly is the
principle that Stevens is defending? That Congress can do whatever
it wants, as long as it’s not explicitly prohibited by the
Constitution? As Thomas observed, that approach negates the
principle of enumerated powers, the bedrock of federalism. And if
the Constitution can be changed so dramatically without
amendment—such that today it authorizes a policy, national
marijuana prohibition, that it did not authorize prior to 1942—even
the explicit limits on government power are vulnerable, as Stevens
himself has
demonstrated in cases involving the First Amendment, Second
Amendment, Fourth Amendment, and Fifth Amendment.

In fact, Stevens has been a principal enabler of the war on
drugs, not just in Raich but in a string of
search and seizure cases that have whittled away at the Fourth
Amendment in the name of stopping Americans from consuming
substances that legislators do not like. Now he says the war on
drugs (or a major part of it, at least) was a big mistake. One of
the Constitution’s virtues is that it can save us from mistakes
like that, provided courts are prepared to enforce it.