Drug Policy

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.

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  1. And this is the guy who wants to re-write A-1, ’cause he’s certain he can ‘fix’ it?
    Sorry, not really interested in what he thinks about people smoking some weed.

    1. Exactly what I was thinking. Are we going to have a Head of Justice Stevens extra-spectacular retrospective in another 30 years to see what he fucked up on the first go-around, again?

      SCOTUS justices who suggest amending the Constitution to further *restrict* liberty should be laughed straight out of the room.

    2. Judge Stevens is just another scientific illiterate.

      Marijuana can cause – Brain Damage (Lowered IQ, Memory Loss, Paranoia, Psychosis, Schizophrenia); Mood Disorders (Aggression, Anxiety, Depression, Irritability); Cancer; Heart Attacks; Gum Disease; Impaired Motor Skills; Lung Disease; Obesity; Osteoporosis; Pregnancy Complications; Sexual Dysfunction; Strokes, Viral Infections and even Death.

      150+ Scientific Studies Showing the Dangers of Marijuana


      1. Maybe we should ban coffee, too…

        Drinking Coffee Daily Can Compound the Toxic Substances in Your Body that Increase Your Risk of Insomnia, Stroke and Heart Disease
        If your coffee beans are grown outside this country, it’s very likely that they have been exposed to PESTICIDES that contribute to several cancers and Parkinson’s disease. Coffee is also known to disrupt absorption of vitamins and minerals that are essential for your body to function properly. The caffeine doesn’t have any nutritional value either, and has been linked to diabetes. In pregnant women, it increases the risk of having a miscarriage or a low birth weight baby. Other health hazards include:

        Coffee Addiction
        Heart disease
        High cholesterol levels
        Fluid loss in your body
        Rheumatoid Arthritis
        Damaged blood vessels
        Anxiety symptoms
        Depleted Calcium and Iron levels in women

        Die in a fire POOPTEK

        1. Another scientifically illiterate comment.

          1. poptech is an idiot. He mostly spends his time spamming his personal website on various message boards in the deluded hope that he or his silly third grade quality website might actually leave him with a legacy more substantial than a fart in the wind.

            1. So you don’t know anything about websites either? Why am I not surprised. The over 150 scientific studies speak for themselves.

            2. Amen to that. Pooptech = DEA spammer.

              1. The DEA does great work trying to protect children from the propaganda by addicts but I am not one of them.

          2. “Another scientifically illiterate comment”

            And no his post isn’t scientifically illiterate. It’s science. If you knew even science basics that would be obvious. It’s OK though. Sometimes scientifically illiterate laymen get confused.

            1. Drinking coffee does not cause brain damage, marijuana does.

            2. Drinking coffee does not cause brain damage, marijuana does.

              1. Coffee has both good and bad health effects has been borne out in various studies. Likewise marijuana has positive and negative effects which has also been borne out in various studies. These are simple facts. Denying that is insisting that you wish to wallow in scientific ignorance like a pig in feces. Believe me your self esteem is not going to be improved by spamming every site on the internet. You are nobody and will always be nobody no matter how much spam you pump out. If you really want to be remembered putting a bullet in your head now is the only way it would happen and only because your death might garner a blurb in some small hick newspaper.

                1. Fascinating how addicts are telling me to commit suicide when they are already doing that to themselves.

                  1. Apparently it is all literacy not just scientific literacy that is an issue for you. I told you no such thing. I was merely pointing out the most likely path to some recognition. Just like everyone else you know I could care less if you live or die and certainly wouldn’t bother to offer you advice.

            3. 150+ Scientific Studies Showing that pooptech is a liar:


              1. Those with brain damage cannot count.

                1. Sweeping generalizations are okay though?

                  1. Poopdeck’s ‘arguments’ remind me of the atheist-Believer ‘debates’ I’ve enjoyed at Linked In…

                    ‘My data are valid; yours aren’t’
                    ‘My book proves I’m right; your references can’t be trusted…’

                    Poopdeck has all the hallmarks of a cult-follower.

                    And he/she/whatever apparently has NO compassion for all of the people who have REPORTED that marijuana has helped them manage their pain or nausea resulting from cancer treatments or other ailments.

                    THAT’S not only stupid, it’s downright cruel.

        2. Unfortunately, Poptech is right. You must be a pot aficionado complete with the tell-tale cough.

          1. Anecdotal, I know. And one person does not a study make. However, my second wife started smoking pot when she was 15 and never had another petite mal epileptic seizure again. At age 30, after smoking pot nearly daily for 15 years, she went to Heald Business College and studied accounting. She graduated with straight A’s. In the morning, first thing, she’d smoke pot. On her lunch break she’d smoke pot. At home, just before “hitting” the books, she roll another one and light up. And, at age 40 and a physical, she had clear lungs. There are a lot of people doing research with an agenda and the research can’t always be trusted. What were the confounding factors not taken into account, etc.

            1. Addicts always have worthless anecotes that have no scientific relevance.

              1. Provide a literature of published peer-reviewed studies supporting your contention concerning marijuana “addicts” and anecdotes or shut the fuck up.

              2. Oh, I forgot that one, Poopdeck…

                ‘My data are valid; Your reports are all anecdotal.’

                Yep, politicsbyothermeans, STFU would be a major contribution to us all if only Poopy would do it.

      2. Marijuana can cause – Brain Damage (Lowered IQ)

        Given that my IQ was 140 when I graduated HS, and is still 140 today despite 30 yrs of daily consumption…

        Fuck off, slaver!

        1. Addicts are known liars.

          1. So are spammers. You are a proven spammer. He is not a proven addict.

            1. Poptech is a typical proggy who knows what’s best for everyone else.

              So pop hand over all your cash……..I’ll spend it on what’s best for you…..really.

              Yup he’s a slaver.

              1. I care about children getting brain damage, addicts like yourself don’t you just want to get high.

                1. Then you have nothing to worry about. This is what the science says on legalization and teen marijuana use.


            2. Addicts are known liars, thanks for proving the point again.

              1. You spam your personal website on virtually every site on the internet. Again you are a proven spammer and your denial makes you a proven liar as well. You may be surprised to know that lying, spamming, message board trolls are not afforded much credibility even by internet standards.

              2. More spam, Poopy….
                ‘My data are valid; any evidence to the contrary comes from liars.’

                You really are a sick cult kind of … whatever.

                Just like proving the God does or doesn’t exist; the ‘arguments and reasons’ are EXACTLY parallel.

                Someone should get a Ph.D. in Psych for analyzing this and publishing.

        2. See, this is how you potheads get when you are called out on your “harmless” indulgence. Over-the-top rude. Why? You don’t agree so you don’t agree. All drugs have repercussions. Even Advil.

          1. The point is not whether there may or may not be potentially negative aspects of marijuana use or coffee use or anything else. The point is it is not your fucking business to tell other people what risks they are allowed to take. You simply have no right to make decisions regarding the lives of complete strangers. Of course this is how you authoritarian progressives get when someone points out that you are acting immorally.

          2. That is typical childish behavior for addicts as they are in complete denial of the science.

            1. Where do you think you’re posting dipshit? You have no business telling people what they can, or can’t, put in their bodies.

              Fuck off slaver.

        3. Here’s a quote from Richard Poulton, the lead researcher in the U. Of Otago, New Zealand study that shows the alleged big IQ drop and decrease in cognitive functioning that all the anti legalization foes refer to as evidence for their case:?”Only approx. 5% (52) of the 1037 individuals”…scored lower…(985 did not, but no mention of them)….”Thus any effect of cannabis on the brain is confined to a relatively small segment of the population.” In addition, cognitive function was measured by a questionnaire given to relatives and friends of the subjects. Very objective. Questions included “can’t concentrate, mind wanders” and “forgets to do errands, return calls, pay bills”. What happened to the other 985 in the study? No mention of them at all.

          1. It’s good to see someone counter poptech’s science illiteracy.

          2. It’s good to see someone counter poptech’s science illiteracy.

          3. It’s good to see someone counter poptech’s science illiteracy.

          4. or, in other words, Poopdeck neither comprehends nor can apply basic science OR mathematics…


    3. Not just A-1. He wants to rewrite A-2 also. Time for him to retire. Oh yeah, he already did that.

  2. If you were once in a position of authority and either supported or had the ability to stop something from happening and didn’t do it, you have no moral standing to then comment on that thing after you no longer have that authority. At best you have the ability to apologize for your mistake. You do not however get any moral credit for supporting that position beyond the credit for admitting your mistake and only then if you take responsibility. Stevens, in this issue and the death penalty wants us to pretend he never was in a position to do anything about it and laud him for his good thinking.

    Sorry John, go fuck yourself and start asking the world for forgiveness you smug old bastard.

    1. hmmmm … you don’t think a judge, especially a supreme court judge should sometimes make a ruling based on how he reads the law even if that conflicts with his desired outcome ?

      don’t get me wrong. I too would tell him to go fuck himself, but because his reading of the commerce clause is so godamn moronic that it’s just staggering. Especially when you read Clarence Thomas’s dissent. But if that is really what he believes, I wouldn’t tell him to fuck off for not being a results-driven judge.

      1. You are right Emmerson. When I wrote that I thought he was saying that he now believed he should have ruled differently. After looking at it again, he was not saying that.

    2. He didn’t say his ruling was a mistake. Presumably he still thinks Congress is supposed to have that power, just that it was unwise of them to use it that way.

  3. Commerce Clause… Is there nothing it can’t do?

    1. I can think of *one* subject they wouldn’t allow to be regulated under the Commerce Clause…

      I’ll let myself out.

    2. Yes, but whatever it can’t do, the Tax power can. And if there are any cracks there, then, well, anything goes under the mysterious General Welfare clause.

      If all of that doesn’t work, then the government can look to the More Perfect Union clause in the Preamble.

      1. Don’t forget Necessary and Proper!

      2. More Perfect Union clause

        If you look closely enough at the original Constitution, there is a Cakef for the Fexually Controverted clause in there, but they whited it out.

    3. It’s amazing how many things have been justified by The Commerce Clause, usually coupled with The Necessary and Proper Clause (i.e. “compelling government interest”), sometimes trumping the BoR (because hey, it’s in the Constitution proper)

      Read up on “instrumentality” and you’ll see how what Thomas was saying is right, where such jurisprudence was used even before he was born.

  4. Oh, God. Just die already.

    1. It will be entertaining to see what kind of hack Obama puts up for the empty chair this time.

  5. Why does public opinion matter in constitutional law? Why does Stevens say weed is in but nothing else?

    1. Mob rule trumps the constitution.

      1. Not really. What people like this think is that their interpretation of the volont? g?n?rale is what matters, not what it actually is.

    2. In fairness I don’t think he is saying it does. He is saying that it should be legal not that the constitution requires it to be legal.

      1. Actually he is saying it does. Don’t forget that this is the justice that once argued that strict scrutiny shouldn’t exist and that every case should be decided purely on rational basis. Congress can do whatever it likes as long as believes it has some reason for doing so.

        1. You think so? Why do you think he is saying it requires it to be legal? I am not seeing that. What am I missing?

          1. The “it does” was referring to “public opinion mattering in constitutional law”. Stevens is the epitome of “the living constitution”, so of course he thinks public opinion matters to interpretting the constitution.

    3. Because he’s an un-principled statist asshole. I think that covers it. 🙂

  6. Ah Clarence. The one justice who is simultaneously a libertarians greatest ally and worst enemy.

    His dissent in Raich was magnificent, but when it comes to police power he’s as statist as they come. And he continues to live up to this dichotomy. He just wrote the disastrous opinion for Navarette v. California but he concurred with majority on the Schuette ruling.

    I don’t get it.

    1. You could say the same about Scalia. His dissent in the anonymous tip case last week was equally magnificent. He has, however, wrote some equally bad ones.

      1. This is true, but I get the feeling Scalia is less of a statist when it comes to police power which makes sense in light of his other rulings whereas Thomas can write a gem of a defense of liberty but then turn around and write something else that sounds like it’s a different person altogether.

        1. My theory is that Thomas was deeply effected by his experiences growing up being the lone black kid in an all white school. In that environment the authority of the administrators is probably what kept him from a lot of grief. For that reason I think he is naturally sympathetic to the powers of government to go after and prevent criminal conduct.

          It is easy for you and I to want something done about the police. If we were a really outnumbered minority surrounded by a pretty hostile minority and were lucky enough to have a police force willing to look out for us, we might look at things differently. I think that is what Thomas does.

          That is my crackpot theory anyway.

          1. I guess that does have some basis in reality, but one would think Thomas would have had some negative experiences with police power growing up in the 60’s as well. Maybe he didn’t, who knows.

            It just reminds you that these Judges are still flawed humans like the rest of us and you should never put too much hope in them to make the right call.

            1. I think the answer is easier than that–he’s not a libertarian.

              1. No. But neither is Scalia and he has written some good opinions on police power. You don’t have to be a libertarian to respect the 4th Amendment.

                1. They’re conservatives. Which means they like some limits and not others. Unlike their leftwing colleagues who really never want to limit government power. Like I’ve been saying, when they rule correctly, it’s usually from a permission-based vantage, not a rights-based on.

                  1. I disagree. I think they look at the document as having an original meaning that doesn’t change and they do their best to figure out what that is. They don’t view the document as having some kind of default position of always ruling in favor of greater rights.

                    1. They’ve helped change the Fourth Amendment into an inkblot, which isn’t close to its original meaning.

  7. See, it is all about asking for permission rather than having inalienable rights. He wants to give people permission to do some drugs, to say some things, and to own some stuff. No rights, just permission granted from on high by the government.



    2. Unlimited powers. Enumerated rights.

      1. He asked permission and followed orders.

        He loved Big Brother…

        1. It’s our culture now. Following the Atomic Age, the Space Age, and the Information Age, we now have the Mother-May-I Age.

          Q: Please, may I say something about my cause?

          A: Yes, you may, in this manner, at this time, and in this place. Just this one time.


    3. Spot on. That’s their world view.

      1. Well, that’s not how it works, and I don’t care what these usurpers think. They can jail, kill, and otherwise oppress us, but our rights are there, regardless of how much they try to crush us into submission.

        1. It’s so cute when you struggle…

          *turns c-clamp tighter on ProL’s head*

          1. Until they can Borg us all, it doesn’t matter how much they squeeze. Individuals have rights whether they choose or even physically can exercise them.

  8. But Stevens might want to reflect a bit on his support for the broad view of congressional power that made pot prohibition possible

    Man, progs get pissed when I point this out.

    1. really? I find most of them too stupid to even know that they are supposed to pissed when I rub their nose in this. Not all. But definitely most.

  9. At least he changed his mind. Los of people come around and see things different later on in life.

    1. It’s called “evolution” – just ask The President (PBUH) about it

    2. He changed his mind after he had an opportunity to expand liberty and punted on it. Fuck him.

    3. He still thinks the government should have the power to ban drugs, he just thinks they shouldn’t use that power. So, he’s still an authoritarian piece of shit.

      1. He still thinks the government should have the power to ban drugs, he just thinks they shouldn’t use that power.

        Actually, he thinks they should continue to use that power…except in one case where he probably believes the tax benefits outweigh the (perceived) social costs.

        So, he’s still an authoritarian piece of shit.

        And a utilitarian/populist one as well. Principals over principles.

    4. At least he changed his mind.

      He changed his mind on what Congress should give us permission to do.

      He has not changed his mind that we need Congressional permission to do anything. So, fuck him.

  10. Why is Stevens still here? I wished him DEAD the other day. And he’s still here. FUCK!

    *concentrates moar harder*

    1. Why bother? He’s out of power. The damage is done.

      1. I’ve seen the Stevens and the damage done,
        A little part of it in everyone,
        But every statist’s like the settin’ sun.

      2. Because, like a goddamned feral Pit Bull, I never let go

  11. Shorter Stevens: “You fucked up, you trusted us.”

        1. The Negroes stole our dates.

  12. Doesn’t stop O’Reilly from screaming about pot every week.

    1. You really should get help.

  13. I like the cut of Elon Musks’ jib: Thanks for the startup funding, now I’m going to sue for not being allowed to bid the Air Force contract.

    1. I had mistakenly opined that maybe SpaceX was going to go public when he indicated that an announcement was coming today.

      1. He hasn’t quite sucked all the cream out of the market with Tesla, yet.

        1. Tesla, meh, SpaceX, yeah.

  14. This was really a pretty lame story. The word of a supreme court justice means nothing.

  15. “You could credit Stevens with principled consistency, since his opinion upholding the federal ban on marijuana apparently went against his own policy preferences. ”


    All I see is a guy with his finger to the wind, favoring legalization once a majority of other people do.

    Principled? Or a guy who sways in whatever direction the wind blows?

  16. 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.

    And Wickard was of course an asinine rationalization of usurpation. If Stevens claims Wickard as justification for ANYTHING, then he’s a fucking crooked shyster who never should have been admitted to the bar.


  17. Marijuana Compounds Can Kill Some Cancer Cells: Study

    “Cannabinoids have a complex action; it hits a number of important processes that cancers need to survive,” study author Dr. Wai Liu, an oncologist at the University of London’s St. George medical school, told The Huffington Post. “For that reason, it has really good potential over other drugs that only have one function. I am impressed by its activity profile, and feel it has a great future, especially if used with standard chemotherapies.”

    Liu’s study was recently published in the journal Anticancer Research. It was supported by funding from GW Pharmaceuticals, which already makes a cannabis-derived drug used to treat spasticity caused by multiple sclerosis.

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