Sunday, November 12, 2017
The title of this post is the title of this notable new article authored by Scott Howe now available via SSRN. Here is the abstract:
An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. Neither the Cruel and Unusual Punishment Clause, the Fourth Amendment, the Due Process Clause nor the Equal Protection Clause can justify such a protection, and that would remain true even when most states have legalized. But, could another theory justify this constitutional right?
A second important and topical legal question concerns when two or more rights-based clauses in the Constitution can combine to invalidate government action that none of the clauses could disallow on their own. The Supreme Court generally has declined to recognize multiple-clause rights. But, in the past, it occasionally seemed to endorse the approach. And, recently, in Obergefell v Hodges, 135 S.Ct. 2584 (2015), it gave new impetus to the idea by declaring the existence of a “synergy” between the Due Process and Equal Protection Clauses that it asserted had helped explain its acknowledgment of certain rights previously and that purportedly helped lead, in the case at hand, to its acknowledgment of a right to same-sex marriage. In consequence, enthusiasm has again intensified over the notion that rights-based clause aggregation can expand constitutional protections. But, is clause aggregation only rhetoric offered to justify something the Court would have done anyway under a single clause or can it sometimes really matter? And, if so, when?
This Article puts both problems in play by asking this question: After a super-majority of states legalize, could multiple clauses together reveal a constitutional right to engage in certain recreational, marijuana activities? The Article answers with cautious affirmance: Clause aggregation could help justify such a constitutional right, in tightly limited circumstances. But, the Article also notes that many of the contours remain undeveloped in the Supreme Court’s jurisprudence on rights-based clause aggregation, complicating any effort to predict whether and how the Justices would apply it in the future to recreational marijuana.