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Cannabis plant leaves
Do Americans have a right to privacy? Should the government allow individuals to use their own bodies as they wish? While there is no such right granted by the Constitution, it has been traditionally assumed that such a right exists, even if only implicitly. But the upcoming Supreme Court ruling, in the draft released by Politico in a leaked opinion by Justice Samuel Alito, would erase the right of privacy. According to Alito himself, if such a right to a private life does indeed exist, it includes the right to consume drugs.
“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concepts of existence’ prove too much,” Justice Alito wrote in the document that aims to kill abortion and privacy rights in the U.S. “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”
Perhaps by accident, Justice Alito made an interesting point. If a right to privacy exists, it stands to reason to assume it includes the right to consume marijuana. Other drugs, too, but this column concerns itself with marijuana, which is by far the favorite illicit drug of Americans and, despite the fact it is non-addictive and entirely harmless, accounts for more arrests every year than all violent crime.
What Is the Right to Privacy?
Neither the Constitution nor the Bill of Rights include a right to privacy. The assumption that such a right exists relies on two elements: Such a right is assumed to be derived from other rights which are explicitly granted in the Constitution, and the Supreme Court repeatedly ruled in favor of the existence of such a right.
The 14th Amendment guarantees that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” The First Amendment gives a right to free assembly, and the Fourth Amendment protects individuals and their property from unreasonable searches and seizures.
Adding these pieces together, some have concluded that a right to privacy ought to exist. Especially since the Ninth Amendment explicitly says that there are rights not mentioned in the document but that exist nonetheless: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
But in truth, the real nature of the American right to privacy emanated from the Supreme Court itself, as it ruled on cases that implied its existence. In 1965, the Griswold v. Connecticut ruling made federally legal the use of contraceptives, and it first established that there is a right to privacy in regard to sexual practices—and only sexual practices. This ruling was the basis of Roe v. Wade (1973), which granted the right to end pregnancies, but also Lawrence v. Texas (2003), which ended anti-sodomy laws and thus decriminalized homosexuality, as well as Obergefell v. Hodges (2015), which gave same-sex couples the right to get married.
The right to use contraceptives, the right for gay people to be married or even the right to exist as a gay person; all of those are unenumerated rights, like the right to privacy, and they all only exist insofar as a right to privacy is assumed to exist. Indeed, Justice Alito mentions all of these cases by name in his leaked opinion, indicating that they all exist on shaky foundations and could, like the right to abortion, be overturned by a simple ruling of the Supreme Court.
Overturning precedent, in itself, is a very slippery slope when it causes the loss of well-established human rights. Once this dam breaks, the damage cannot be undone, as it will prove that whoever owns partisan Supreme Court Justices can do away with any number of unenumerated rights regardless of precedent. A staggering number of rights that Americans enjoy are not spelled out in the Constitution but are assumed to exist under the provisions of the Ninth Amendment.
What matters is that the Supreme Court consistently found that a right to privacy exists, and it protects the private lives of Americans from government interference. That is to say, the court ruled that way consistently until it was packed by three Trump appointees, who have an incontrovertible majority alongside the two Bush 43 appointees. No matter what the current partisan court decides, in the words of Justice William Douglas (a Roosevelt appointee) in the Griswold v. Connecticut ruling about the government violating the privacy of American bedrooms, “the very idea is repulsive”.
Does the Right to Privacy Include a Right to Consume Drugs?
What is liberty? Liberty as in “no State shall deprive any person of life, liberty, or property,” the very vague right that is granted to Americans by the 14th Amendment. It’s never explained, and therefore left to interpretation. It has often been understood as a right to bodily autonomy, the freedom to use your body in any way you wish. This is the unenumerated right that every cannabis activist believes should grant them the right to consume marijuana.
There is no explicit right to bodily autonomy in the United States. Most Americans might assume they do have the right to govern their own bodies, but in truth, only unenumerated rights protect the average person from being forced by the government to utilize their bodies without the individuals’ consent.
What comes closest to a ruling on bodily autonomy is the 1891 Union Pacific Railway Co. v. Botsford case, which granted the right for a plaintiff to refuse a medical examination ahead of a trial. The ruling itself is narrow, but the Justices’ opinion includes the claim that “no right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.” This is not in accordance with future rulings, but it provides a strong argument to claim the existence of a right to bodily autonomy that is fundamental despite going unmentioned in the founding documents of the United States. The Botsford ruling was used as a basis for Roe v. Wade, and that implicit right has been recognized time and time again by the court since.
Supreme Court-backed unenumerated rights tend to be related to sex, procreation and healthcare. The Court has had a tendency to avoid having to speak on cases where they might need to rule that criminalizing drug use is unconstitutional. As such, the right to privacy as codified by the Supreme Court explicitly exists only within the boundaries of sexual and reproductive acts. Therefore, it could be argued this right does not automatically extend to drug use because the court simply didn't talk about it.
One notable drug-related right emanating from the Supreme Court is the 1962 Robinson v. California ruling, which established that it is legal for an individual to be a drug addict, but it does not protect anyone for the act of possessing drugs if that act is criminalized—which it is, at the federal level, under the Controlled Substances Act of 1970.
So, there is not much help to be found regarding drug usage in precedents. But one more Supreme Court ruling comments on the nature of the unenumerated right to privacy as applied to drug use: the 2022 opinion by Justice Samuel Alito overturning Roe v. Wade.
Fundamental Rights?
“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concepts of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”
The phrase “concepts of existence” refers to Casey v. Planned Parenthood, a Supreme Court ruling that upheld Roe v. Wade in 1992 and that will also be overturned by the upcoming ruling. In Casey, the court had found that the government should not be empowered to make “intimate choices” for American citizens: “At the heart of liberty is the right to define one’s own concept of existence,” it reads. Justice Alito strongly rebuked this belief, saying instead, “While individuals are certainly free to think and to say what they wish about existence, [...], they are not always free to act in accordance with those thoughts.” An odd liberty, one that allows thoughts and words but forbids acts.
The phrase “a broader right to autonomy” refers to the concept of bodily autonomy that has been found by the Supreme Court to exist implicitly. And “at a high level of generality” is a convoluted way for Alito to say “if we take this constitutional right to its logical conclusion.”
So, seemingly without meaning to, Justice Alito has brought up the best defense of constitutionally protected drug use from a Supreme Court ruling yet. He doesn’t understand what he said, because his point is that a right to autonomy does not exist, but that if it did exist it would include drug consumption. As evidenced by all the previous Supreme Court rulings, Alito is only wrong on one point: The right to bodily autonomy does exist.
Alito is not alone in thinking that bodily autonomy necessarily includes drug usage, although his stance that bodily autonomy does not exist is more unique. According to an analysis by Tim Weber, who represented the State of Indiana in the medical field as Deputy Attorney General, the case allowing the consumption of alcohol and tobacco under the unenumerated right to privacy directly applies to marijuana as well.
“Marijuana’s history in the United States, and in human history in a broader sense, parallels the history of tobacco and alcohol. For instance, both tobacco and hemp were cash crops in the early United States, and both alcohol and marijuana have been the object of a government prohibition that has given criminal entities revenue through the black-market sale of the substances during the prohibition. These similarities suggest that the law should treat alcohol, tobacco, and marijuana similarly,” he wrote. “Furthermore, as alcohol and tobacco—which are proven to be generally more harmful to health and more addictive than marijuana when consumed—are legal for individuals to choose to consume, it is reasonable to think that a bodily autonomy right would protect marijuana consumption in the same way.” He concludes that, “In all likelihood, the current federal prohibition of marijuana would fail both requirements for constitutionality under a strict scrutiny analysis.”
One final point in Alito’s opinion reinforces the pro-marijuana message of it: He claims that only unenumerated rights “deeply rooted in the nation's history in tradition” are real, and more modern interpretations are not constitutionally protected. It is a bogus argument in more ways than one, but it becomes particularly ridiculous as it applies to marijuana. The criminalization of marijuana is barely older than 50 years. It is less than three years older than Roe v. Wade. If Roe is too young to be rooted in history, so is the criminalization of marijuana.
On the other hand, it is easy to make a case for the fact that marijuana itself is deeply rooted in American history and traditions. Cannabis was a major crop of the early United States, and it was legal tender for a portion of history. Cannabis was perfectly acceptable, even as a psychoactive drug, up until a wave of Mexican immigration in the 1900s led to its criminalization by association with Mexicans. Hear Harry Anslinger, architect of marijuana prohibition, educate the great American public on the reasons why they should support the criminalization of cannabis:
“There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others… Reefer makes darkies think they're as good as white men.”
Given that marijuana is deeply rooted in history but its prohibition is not, and given that the criminalization of marijuana goes against the well-established right to bodily autonomy according to Justice Alito himself, one can only conclude that, if a fair Supreme Court examined it, the right to consume drugs would have to be granted. All that we are missing now is a fair Supreme Court.
