Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, February 4, 2014

Marijuana will be legal in all 50 states by . . . .





Marijuana legalization has been one of the most notable law reform movements of the past two decades. In this post, I want to analyze the pace of these reforms in the hopes of formulating some (necessarily speculative) predictions about the future of the movement.

Since 1996, 21 states have legalized marijuana for medical purposes – roughly 1.15 new states per year. Of course, the rate of adoption has varied somewhat across those 18 plus years, with as many as 3 states legalizing marijuana in some years and 0 states legalizing marijuana in other years. But the pace of reform has been remarkably steady over time, notwithstanding several major “events” during this span, including: Drug Czar Barry McCaffrey’s call to all federal agencies to combat state reforms (1997); the U.S. Supreme Court’s decisions in Oakland Cannabis (2001) and Raich (2005); and the DOJ’s issuance of (non-) enforcement memos in 2009, 2010, and 2013. The following graph (using data helpfully gathered by shows the number of new states legalizing medical marijuana by year since 1996:

New States Legalizing Medical Marijuana

If adoptions continue at the 1996- rate, medical marijuana would be legal in all states by 2039.

Obviously, this is a very simplistic way of predicting the future, based on simplified data (reforms vary across states, after all). A number of factors could hasten, slow, or even reverse the legalization of marijuana going forward. For example, legalization may come more slowly in the 29 remaining states, because voters in those states have comparatively restricted access to direct lawmaking procedures. (More than half the 21 states that have legalized medical marijuana so far have done so via voter initiative, but only 11 of the 29 remaining states appear to have comparable initiative procedures.)  On the other hand, public support for legalization of recreational marijuana is growing (support for medical marijuana has been high for quite some time), potentially defusing one of the key arguments against legalization of medical marijuana – namely, that supplies of it will be diverted into the recreational market. But I’ll go out on a limb and say that by 2039, marijuana will be legal (for purposes of state law) in every state. If I’m wrong, I’ll even buy Doug Berman and Alex Kreit a Big Gulp of Coke. If THAT’s still legal, of course.

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Do you think if (when?) marijuana is legal in, say, 47 states, then individuals in the other three might have a constitutional claim that it must be legal in theirs?

Posted by: Doug Berman | Feb 4, 2014 11:32:38 AM

Great question. Some Justices (Scalia especially) are loathe to engage in this sort of exercise, but SCOTUS has defined substantive due process rights by counting how many states already recognize the right in question. The idea is that once 47 (or some such number) states recognize a right to use marijuana, this right becomes ensconced in the idea of ordered liberty protected by the Fifth and Fourteenth Amendments.
But I think the Court would shy away from recognizing a specific right to use (grow, sell) marijuana. After all, as far as I know, no court has yet recognized a constitutional right to alcohol, even though possession of alcohol has been legal in all 50 states since 1966 (at least as a matter of state law).
Still, SCOTUS (or a state Supreme Court) might recognize a more limited claim under the general umbrella of “privacy.” For example, it might recognize a right to possess and use marijuana in one’s own home, as part of the right to privacy of the home recognized in various cases. The Alaska Supreme Court took that route in 1975 in Ravin v. Alaska, though it’s instructive that no other court has followed its lead – not even the Ninth Circuit in the follow up to Raich.

Posted by: Rob Mikos | Feb 4, 2014 12:03:04 PM

I share your instinct here, Rob, though I also think much could depend on the nature of the individual and the claim raised. I think if (when?) nearly every state legalizes medical marijuana it might then become unconstitutional under the Eighth Amendment for an outlier state to arrest/convict an adult for medical use, but still might not be essential for a state to acknowledge that a person has a "right" to use marijuana as a matter of substantive due process.

Posted by: Doug Berman | Feb 4, 2014 12:59:30 PM

Interesting post. I'd bet we'll see marijuana legal in every state before 2039 as well. I think there's still a chance that this trend will reverse itself (especially if Colorado and/or Washington produces results that make voters concerned.) But with every day, I think the chances of putting on the breaks grow smaller and the momentum for legalization grows bigger.

On the question of what federal courts might do if many states have legalized and few have not, I'm reminded of the Ninth Circuit's decision in Raich (on remand from the Supreme Court) a couple of years back. The court was considering a "fundamental rights" argument and left the door open for a medical marijuana fundamental rights argument if enough states come on board. The court said that acceptance of marijuana as a medicine "ha[d] not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'" Of course, a Ninth Circuit panel doesn't tell us much about what the Supreme Court might think. But at least that panel seemed to leave the door open for a different decision down the road. (The case is at: 500 F.3d 850 (9th Cir. 2007).

Posted by: Alex Kreit | Feb 5, 2014 4:12:08 PM

Alex -- Good point re: the court’s prognostications in Raich. Still, I think there would be a host of practical difficulties in recognizing a fundamental due process right to marijuana based on growing acceptance of the drug across the states. Part of the problem is figuring out the contours of the right (and this might impact’ Doug’s nice point about the Eighth Amendment as well): namely, what activity, exactly, is protected by the Fourteenth Amendment? I would imagine every state would allow terminally ill cancer patients to use marijuana (and even those that don’t rarely bring charges). But what about treatment of PTSD? Chronic pain? Headaches? What about growing the drug? Selling it? As Justice Scalia has commonly lamented, the contours of the right will depend on the level of generality at which one describes state law (e.g., a right to medical marijuana versus a right to marijuana to treat terminal cancer). So I think ultimately the courts will balk at recognizing a right to the drug, or they’ll define that right so narrowly that it will impact few cases.

Posted by: Rob Mikos | Feb 6, 2014 2:08:19 PM

If using or selling marijuana is this a violation of the 14th amendment as it pertains to the personal rights of the individual using or selling the marijuana.

Posted by: LAD1E | Apr 3, 2014 9:21:42 PM

LAD1E -- no, not under current doctrine. There's no due process 14th Amendment right to sell or even to use marijuana.

Posted by: Rob Mikos | Apr 4, 2014 9:56:33 AM

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