Marijuana Prohibition Is A Violation Of First

Amendment Rights Essay, Research Paper

“Let me ask you something? if you had a choice, what would it be: Marijuana or Martinis?” This question appeared in the New York Times on Tuesday, May 12th, 1998. Due to the “Marijuana Tax Act” of 1937 the only legal choice that you and the 18 million other adults who used marijuana last year can make is the martini (”Against Drug Prohibition” ix). The legal acceptance of alcohol, however, does not exclude it from the category of a “drug,” even in the eyes of the Food and Drug Administration. The prohibition of marijuana is historically counteractive and a direct defiance of First Amendment rights. This prohibition has denied thousands of critically ill patients a drug that would effectively treat their illness and relieve their pain. The basis upon which marijuana is prohibited has been proven by the very government which has banned the drug to be false.

Since 1914, our nation has outwardly protested against the use of any “drug,” contrary to our past acceptance of the market. Before and during the Civil War, morphine (a derivative of opium) was implemented for it’s anesthetic qualities and was used as a main ingredient in many medicines. Marijuana was also implemented by the medical community in the treatment of migraine headaches, insomnia and rheumatism and cocaine to treat sinusitis, hay fever, and chronic fatigue. These drugs were not only medicinal, however, and they became popular for recreation, and cocaine, specifically became an ingredient in wines and soft drinks, namely Coca Cola (Encarta, “Cocaine”).

Just following the turn of the century, a new climate of temperance swept the nation and in 1914 Congress passed the Harrison Act, banning opiates and cocaine, and the prohibition of alcohol soon followed in 1918, making the U.S. officially a “dry” nation. This prohibition led to a rise in a black market trade of narcotics and alcohol. In 1933, the prohibition on alcohol was lifted due to an overwhelming public concern with widespread organized crime, police corruption and violence (Encarta, “Prohibition”).

Much like the money spent on maintaining the prohibition of alcohol, since 1981, $150 million tax dollars have been spent in the attempt to prevent Colombian cocaine, Burmese heroine and Jamaican marijuana from entering U.S. borders. In light of this, evidence shows that for every ton of narcotics seized, hundreds more prevail. Also in relation to alcohol prohibition, those profiting most from America’s “War on Drugs” are the organized crime barons, who make an estimated $10 to $50 billion dollars a year from drug trade alone (More Reefer Madness, 15-25).

Again, in concurrence with the prohibition of alcohol, during the 1920s, bootleggers marketed small bottles of 100+ proof liquors due to their ability to more easily conceal them (Encarta, “Prohibition”). Drug smugglers tend to carry and sell hard drugs in extremely potent form (i.e. cocaine) for the same reason. The federal government also controls the amount of nicotine and other additives in cigarette and cigar manufacturing, in an effort to lessen their risk to public health. The same tactic could be used on marijuana.

The “harmful” effects of marijuana usage are the number one reason for it’s restriction. These effects, however, are disputable. As early as 1972, President Nixon’s “National Commission on Marihuana and Drug Abuse” concluded that, “There is little proven danger of physical or psychological harm from the experimental or intermittent use of natural preparation of cannabis,” and recommended then that the personal and medical use of marijuana be decriminalized. Since that time, the NAS (National Academy of Sciences) Institute of Medicine, the Federation of American Sciences, the Australian Commonwealth Department of Human Services and Health, the American Public Health Association, the British Medical Association, and the New England Journal of Medicine have produced studies showing that marijuana use is not only harmless, but that it is also therapeutic in the treatment of many serious ailments. Moreover, marijuana has been proven to be less toxic and less expensive than conventional medication and in many cases more effective than commercially available drugs (”Against Drug Prohibition” 13).

It is in this that the prohibition of marijuana is most harmful to the American public. Graham Boyd, an attorney representing a group of plaintiffs including eleven prominent cancer and AIDS physicians in San Francisco presented to a federal judge on Friday, April 11, 1997 the following statement:

“The federal government has issued broad threats against physicians who might recommend marijuana to some of their seriously ill patients. These threats have gagged physicians and have impended the responsible practice of medicine. We assert that doctors have the right to discuss medical marijuana with patients, and we are seeking clear guidelines for physicians who wish to do so.”

The lawsuit was filed January 14, weeks after several advisors of the Clinton Administration made a public response to Proposition 215 (which would, were it to pass, make it legal for doctors to discuss and recommend marijuana to their patients) at a December 30 press conference. That response was that serious penalties may befall physicians who discuss marijuana with their patients, including limited Medicare and Medicaid eligibility and even criminal prosecution (New England Journal of Medicine, August 1997).

American Civil Liberties Union (ACLU) Foundation of Northern California co-counsel Ann Brick said, “This case focuses directly on basic First Amendment principles, thus the case is not about whether the government should legalize the medical use of marijuana. It is about whether the government may prevent doctors from providing a patient with an honest medical opinion recommending marijuana.” (ACLU)

Between 1978 and 1996, legislature in 34 states and the District of Columbia passed laws recognizing the medicinal use of marijuana and it’s obvious therapeutic value. NORML first raised this issue in 1972 in an administrative petition asking that marijuana be moved from schedule I to schedule II of the federal Controlled Substances act, which would make it legal to be prescribed as a medicine. 16 years and many court battles and appeals later, in 1988, the Drug Enforcement Agency’s own administrative law judge, Judge Francis Young, concluded that,

“Marijuana has been accepted as capable of relieving distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence [recently revealed].”

The DEA Administrator, however, overruled Judge Young, and the Court of Appeals allowed that decision to stand, denying the medical use of marijuana to seriously ill patients. Representative Barney Frank (a democrat from Massachusetts) introduced H.R. 1782, a bill which would also attempt to move medicinal marijuana from schedule I to schedule II, eliminating federal restrictions. This bill would not change state laws, allowing individual communities to determine for themselves whether marijuana should be medicinally available (New England Journal of Medicine, August 1997) .

It is a criminal act of the U.S. government by it’s own manifesto, the Constitution, to make a personal behavior a crime. A government that cannot criminalize alcohol or tobacco cannot, for the same reasons, deny the right to use marijuana. In 1857, in his famous essay “On Liberty”, John Stuart Mill, the British economist and philosopher, said, “Over himself, over his own mind and body, the individual is sovereign.”

Marijuana is the third most popular drug in America, alcohol and cigarettes (nicotine) first and second respectively, with approximately ten million regular marijuana smokers in the United States alone. The right to this personal freedom, and personal autonomy (what Mill called “personal sovereignty”), in the matters of religion, political opinion, sexuality, and other private, consensual activities are definitively protected under the First Amendment to the constitution. The National Academy of Sciences issued its finding that,

“Over the last forty years, marijuana has been accused of causing an array of anti-social effects including ? provoking crime and violence .. leading to heroin addiction ? and destroying the American work ethic in young people. [These] beliefs ? have not been substantiated by scientific evidence.”

Common myths, such as “Marijuana is much more potent now that it used to be,” or “Marijuana use causes brain damage,” and even that “Marijuana is a gateway drug to the use of harder drugs,” are now being disputed. In November of 1996, the Lindesmith Center, a drug policy think-tank in New York, published a 55-page book called, “Marijuana Myths, Marijuana Facts.” Written by John Morgan, M.D. and sociologist Lynn Zimmer, and truths were given to replace these fables. In reality, the average amount of THC (the active ingredient of marijuana) in government-seized marijuana was 3.32 percent. In 1975, marijuana samples ranged from 2-14 percent. Further, the claim that marijuana causes brain damage is based on a 20 year old study in which two rhesus monkeys were exposed to doses of THC up to 200 times the psychoactive dose for humans. This test has never been duplicated, and there is currently no evidence available which shows such results. It is true that most users of heroin, cocaine, and LSD have used marijuana (and even more have used tobacco and alcohol), but the majority of marijuana users have never tried any other illegal drug. In fact, as marijuana use increased in the 1960s and 1970s, the use of heroin greatly declined. (New England Journal of Medicine, August 1997)

All current studies show that marijuana is a benign drug that isn’t addictive nor does it cause any significant harm to even long term users. The myth that the drug is so harmful has actually been a “gateway” for law enforcement to seize homes, cars and other personal property. It allowed, in 1996, for 641,600 marijuana users to be arrested, 85 percent of whom were caught merely for possession (ACLU). The myth also allows daily for thousands of seriously ill people to suffer more than is necessary, from both their ailments and the adverse effects of expensive, toxic and poorly effective “medicines”. So, if you had to choose between a martini and marijuana, would you choose liberty?