X. THE HEART OF THE MATTER-SUBSTANTIVE CONSTITUTIONAL CHALLENGES TO THE MARIJUANA LAWS: 1965-1970

Perhaps the most significant legal development engendered by the new class of marijuana users and shift in medical opinion is the vigorous wave of substantive constitutional attacks on the marijuana laws launched in 1965. Although the challengers have employed many labels, the essence of their attacks is an insistence on rationality in the legislative process. Contending that marijuana is a harmless euphoriant, the challengers have questioned governmental authority to prohibit its use at all. Arguing that it is no more, and perhaps less, harmful than alcohol and tobacco, the challengers have indicted as irrational the total prohibition of one coupled with permissive regulation of the others. Conversely, the challengers have vigorously attacked the arbitrary inclusion of marijuana in the legislative classification "narcotics" with admittedly harmful opiates and cocaine. Finally, the severity of the punishments imposed for marijuana violations has been attacked as violative of the eighth amendment cruel and unusual punishment clause. A potent weapon in advancing these attacks has been the fact that the state and federal legislatures never conducted meaningful investigation into the effects of the drug, but relied instead on hearsay and emotional pleas.

Although the judiciary has become increasingly sympathetic to these
challenges, to date it has left the legislation intact. As we inquire into
the reasons for this recalcitrance, the reader should recall the nature of the judicial debate about intoxicants a half century ago. As the scope of the due process and equal protection clauses was substantially broadened over the years, the free-form "pursuit of happiness" and "inherent limitations" approaches were laid on the ash heap of constitutional history. As a result of the incorporation of Bill of Rights guarantees into the fourteenth amendment, there now exist a plethora of more or less "explicit" constitutional limitations upon which the challengers have relied. Analytically, however, the marijuana challengers have asked the courts to fit square pegs into round constitutional holes. The dynamism of recent constitutional interpretation has not yet eroded the obstacles in the challengers' path. But this is not to say that this erosion should not, and will not, eventually occur. In the succeeding pages, we shall evaluate the merits of the various arguments and the adequacy of the judicial responses.

A. The Burden of Justification: The Importance of Having a Presumption on Your Side

The mortar in the wall separating judicial from legislative power is the presumption of constitutionality of legislative action. Although this presumption evaporates where "legislation appears on its face to be within a specific prohibition of the Constitution," 1 or where it affects adversely other fundamental rights,2 the courts ordinarily will defer to the rationality of legislative proscriptions, classifications and sanctions. When legislation is attacked as irrational, arbitrary or factually groundless, the pertinent questions are whether the judiciary should conduct its own factual inquiry, and how groundless the legislation must be to earn the "arbitrary" or "irrational" designation (or its contextual equivalent).
Because of the placement of the burden of (dis)proof, legislation is not "arbitrary" simply because the legislature did not conduct a factfinding investigation.3 When the legislation is attacked, the courts will assume that it was based on the collective knowledge and experience of the legislators. In short, the legislature, as a matter of constitutional law, has no affirmative duty to utilize the trappings of rationality.
Furthermore, legislation is not irrational simply because a factual hypothesis upon which it is premised cannot be proven. The legislature is entitled to guess and act upon the contemporary state of knowledge or ignorance. The generally accepted "facts" about marijuana in the 1920's and 30's, when the drug's possession and use were criminalized, were that it was physically addictive, caused insanity, and generated crimes of violence. Later, in the 1950's, legislation was premised on the hypothesis that marijuana was the stepping stone to heroin and the other opiates. Since the assumptions could not be conclusively disproved, the legislation was rationally related to the legitimate objectives of preventing crime, pauperism and disease. As the California court in Ex parte Yun Quong had noted in 1911 in response to an attack on the early anti-opium laws:
[B]ut the validity of legislation which would be necessary or proper
under a given state of facts does not depend upon the actual existence of
the supposed facts. It is enough if the law-making body may rationally believe such facts to be established.4
Between 1950 and 1965 attacks on the marijuana laws were repelled in this manner since medical inquiry had not yet produced affirmative evidence of irrationality. Challenges to the classification of marijuana as a narcotic were rebuffed either by citing Navaro and the other cases first upholding the marijuana laws,5 or by quoting Ex parte Yun Quong.6
By 1965, however, the revolution in marijuana use was underway, and independent medical researchers had begun to challenge the venerable assumptions. Armed with an increasing volume of scientific literature in their favor,7 challengers have assaulted the legislation in court in an effort to prove that "facts judicially known or proved preclude" the legislation's rationality.8 Several trial judges have taken evidence on the physiological, psychological and sociological effects of marijuana,9 and some appellate courts have suggested that such steps be taken in their respective inferior courts.'° In Colorado, trial judges have twice declared that state's marijuana laws unconstitutional on the basis of such evidence, only to be reversed both times.' Again and again, the verdict has been the same: Despite the substantial weight of authority regarding the mildness of the drug, enough doubt remains and enough rational men still consider the drug harmful that the courts cannot say the legislation is irrational.'2 Some judges have expressed their own doubts about the accuracy of the factual premises and the wisdom of the legislative judgments pertaining to marijuana, 1.3 but even they have been constrained to uphold the legislation. At the other extreme, some courts continue to rely on the old myths, considering the question well settled'4 and rebuffing the challengers' attacks with a swish of the robed forearm:
Clearly, the use of marijuana and other drugs ... presents a danger to the public safety and welfare of the community since they are clearly related to each other and to the commission of crime.15
Many legislators hesitate to revise the marijuana laws drastically, because they feel the data is not yet complete. For the same reason, the courts have been even more reluctant to find that present legislation has no rational basis in fact, a finding made only in the rarest circumstances. Assuming for present purposes that the legislation is entitled to the traditional presumption, we believe that attacks grounded in the due process and equal protection clauses should fail. On the other hand, we are not convinced that challenges grounded in a rationality arm of the eighth amendment prohibition against cruel and unusual punishment are without merit. This argument has the advantage of acknowledging the rationality of criminalization while indicting the severity of the sanction.

1. Due Process and Equal Protection: Rationality of the Classification

The concurrent classification of marijuana as a "narcotic" with the "hard drugs" and the permissive treatment of alcohol form the basis of the "irrationality" argument. Whether grounded in the minimum substantive content of the due process clause, in the overinclusive and underinclusive aspects of the equal protection clause, or in an independent limitation on the police power, the contention is the same: The legislative classification is not reasonably related to a valid legislative purpose.
The initial inquiry ought to focus on the nature of the state's objective. The first possible objective we will call the "rationality" rationale. The state's aim may be to promote productivity, rationality and participation in social processes, and conversely to prevent the citizen from "turning off" or frustrating his ability to function in socially desirable ways. Under this rationale, prohibition of all drug use would be rationally related to the state's objective. Similar treatment of "hard" narcotics and marijuana would be justified, since no distinctions need be drawn between moderate and chronic use or between divergent ancillary social and physical effects. The real issues are whether this is a legitimate objective and whether the permissive treatment of alcohol invalidates the scheme.
As to the first issue, we do not believe that American governmental institutions are empowered to impose the Protestant Ethic upon a free people. Although we will explore this question in some detail below from another perspective,16 we note for now that opposition to mere use of euphoriants has never been the focus of legislative inquiry or the public opinion process in the entire history of drug regulation in this country-. As we noted earlier,'1 although total abstention was a peripheral concern of some proponents of Prohibition, that movement was directed primarily at the evils associated with excessive use and commercial distribution. Some judges recently have upheld marijuana legislation simply because marijuana is a "mind-altering drug," 18 but it is unlikely that they perceived the implications of their statements.
As to the second issue, if we assume that rationalism is a legitimate objective of drug legislation, it is a long-standing constitutional principle that the legislature need not "cover the waterfront." If the law-makers determine, as a result of the failure of Prohibition for example, that "regulation" is the only feasible approach to alcohol, that judgment does not vitiate a prohibitionary approach to other intoxicants. That the legislature acts piecemeal does not make its actions any less "rational." 19
The state's objective in drug legislation may be to prevent excessive or chronic use on the ground that such use totally destroys the user's social utility and is likely to render him dependent on the state for subsistence. Although this "dependency" rationale is designed immediately to protect each citizen from himself, its mediate aim is the public good. In this respect marijuana prohibition resembles legislation requiring motorcycle users to wear crash helmets.20 Again, there is some dispute regarding the legitimacy of this objective, a question to which we will return below.
Assuming the validity of the "dependency" rationale, however, the relevant factual inquiry focuses on the respective use patterns and effects of "hard" narcotics, marijuana and alcohol. The challengers contend that it is scientifically established that marijuana is not physically addictive, causes no permanent harm, and that its users do not develop a tolerance to the drug. The irrationality of classifying marijuana with the opiates and cocaine is aggravated, they contend, by the fact that there are six million chronic alcoholics in this country. In response to these arguments, some courts have noted that there is some evidence for the proposition that marijuana produces a "serious degree of psychological dependence, that it encourages experimentation with other drugs and that it may lead to addiction of narcotics." 21 Accordingly, since "reasonable men may entertain the belief that the use of [marijuana], once begun, almost inevitably leads to excess, such belief affords a sufficient justification for applying restrictions to these drugs." 22 In addition some courts have noted that there is some evidence that the smoking of marijuana may induce acute (albeit temporary) "psychotic breaks" in predisposed Individuals.21
Although the logic of the stepping stone and psychotic break arguments is suspect in determining valid state interest, we believe that contrary medical findings are still too tentative with respect to the psychological effects of marijuana use to sustain an irrationality challenge under the "dependency" rationale. In addition, the piecemeal principle once again counters the challengers' underinclusive equal protection argument with respect to alcohol or LSD '24 allegedly more harmful drugs not classified as "narcotics." To the extent that some courts have searched for differences between alcohol and marijuana to defend directly the legislative scheme, they have usually been on shaky ground. For example, Massachusetts Superior Court Judge Tauro stated in Commonwealth v. Leis, after a full factual inquiry on the effects of marijuana:
The ordinary user of marijuana is quite likely to be a marginally adjusted person who turns to the drug to avoid confrontation with and the resolution of his problems. The majority- of alcohol users are well adjusted, productively employed individuals who use alcohol for relaxation and as an incident of other social activities.25
Such statements misconstrue prevalent use patterns of both alcohol and marijuana. Moreover, such differentiation is grounded not in the "dependency" rationale but in the dubious "rationality" rationale. Judge Tauro would have been better advised to stick to the piecemeal principle, as have the California intermediate appellate courts .26
The third possible objective of marijuana legislation is to prevent harm to others. For four decades, prohibition of marijuana has been based primarily on the "other-regarding" rationale. The relevant factual hypotheses are that marijuana use causes violent crime directly, that it leads to use of hard drugs and thereby causes violent crime indirectly, and that it causes "psychomotor discoordination" and thereby causes accidents by those under its influence.
Contemporary challengers have charged that these assumptions are completely without merit in light of contemporary medical knowledge. Although some courts continue to intone the old myths, relying on police testimony correlating marijuana use and violent crime '21 others have openly recognized the unsubstantiated character of each of these
hypotheses.28
Nevertheless, these courts have sustained the legislation because of the continuing uncertainty about the drug's effects .21 Rather than supporting the hypothesis that marijuana intoxication independently causes violence, the courts have focused on the unpredictable effects of the drug depending on the psychological predisposition of the user. Since there is some evidence that marijuana can be especially volatile when used by despondent, hostile or unstable persons, a prophylactic approach is rational.3°
Similarly, while recognizing that there is no support for a direct causal link between marijuana use and hard narcotics use, the courts have held that some marijuana users' graduation to more dangerous drugs due to environmental conditions is enough to uphold the legislation."' Finally, recognizing that the possibility of reckless use of dangerous instruments while under the influence of marijuana might not ordinarily justify its total prohibition, the courts have relied instead on evidence that there is no scientific means of detecting whether or not a person is under the drug's influence, as there is with alcohol.32
Taken individually, each of these justifications leaves something to be desired. First, individuals psychologically predisposed to violent conduct will, in all likelihood, snap under the influence of some other catalyst even if deprived of marijuana. Second, the stepping stone theory is a self-fulfilling prophecy even to the extent that there is a correlation between marijuana use and hard narcotics use. Were it not for prohibitionary marijuana legislation, users of that drug would not come into contact with illegal activity and perhaps consequently with narcotics pushers. Finally, there is persuasive evidence for the proposition that marijuana users are ordinarily rendered immobile and are unlikely to endanger others by driving automobiles.33
Taken collectively, however, these hypotheses provide a rational basis for prohibitionary- legislation, the objective of which is to prevent harm to others. We conclude that there is not yet sufficient uniformity- of medical opinion to overcome any presumption of rationality attaching to marijuana legislation. Those courts directly confronting the issue have responded correctly, regardless of the precise constitutional framework within which they have worked.

2. Cruel and Unusual Punishment. Rationality of the Sanction

Since marijuana penalties were drastically increased in the 1950's, the marijuana laws have been attacked repeatedly on the ground that high mandatory minimum sentences without parole or probation are cruel and unusual punishment. The starting point for resolution of this question is the Supreme Court's highly ambiguous decision in 1910 in Weems v. United States.84 The Court struck down a fifteen-year sentence at "hard and painful labor" imposed under Philippine law for falsifying a public document because the sentence was "cruel in its excess of imprisonment" as well as "unusual in its character." 11 The punishment was condemned "both on account of... [its] degree and kind." 16 Because the incidents of the challenged imprisonment were particularly abhorrent-"a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property" 37-some courts and commentators believe that Weems does not depart from the traditional view that the eighth amendment speaks only to mode of punishment, not to length.38 Yet some members of the Court have stated that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged." 19 And the Court in Weerns stated that the punishments there in question came "under the condemnation of the bill of rights, both on account of their degree and kind." -10 Accordingly, although the jurisprudence ofthe eighth amendment is virtually nonexistent, courts and commentators have assumed that the amendment has a proportionality dimension."
The difficult question is the proper standard for testing the constitutionality of allegedly excessive sentences. Although detailed inquiry into the subtleties of this issue is beyond the scope of this Article, the battle is between those who would apply a fringe "decency" test42 and those who would apply a "rationality" test that essentially extends the minimum substantive content of the due process clause to the relation between crime and punishment." As applied to marijuana legislation, a "decency" inquiry would have been fruitless in the 1950's and 1960's but may yet succeed in the 1970's. Under that test, a punishment is unconstitutional only if "so aberrational as to violate 'standards of decency more or less universally accepted.'" 44 Since the history of marijuana legislation has again and again been characterized by varying degrees of hysteria in differing jurisdictions, there is no available measure of human decency against which to test the action. Moreover, if the legislatures are uniformly harsh, the judicial conscience is not likely to be shocked. However, as increasing numbers of state legislatures and the Congress finally begin to dc-escalate the penalties for marijuana offenses, those states that maintain the 1950 punishment levels are likely to find themselves lagging behind "the evolving standards of decency that mark the progress of a maturing society." 45
One contention that can, and has, been raised in the drug context has been that the penalty must bear a reasonable relation to the seriousness of the offense when compared with the punishments for more serious crimes in the same jurisdiction and for the same crime in other jurisdictions. The evolution of judicial response to this argument in marijuana cases has followed a path consistent with the change in use patterns and in public response.
In the first case raising this cruel and unusual punishment issue, State
v. Thomas '41 the Louisiana Supreme Court upheld in 1953 that state'smandatory minimum sentence of ten years without parole for unlawful possession. The court said that the eighth amendment did not apply to the states and that similar state provisions spoke only to "form or nature of the punishment rather than its severity in respect of duration and amount." 47 Finally, the court noted that, even if Weems applied, "[iJ n view of the moral degeneration inherent in all aspects of the crime denounced by the Narcotics Act, it cannot be said that the length or severity of the punishment here prescribed is disproportioned to the offense." 48 Five years later, the Texas Supreme Court upheld a life sentence for first offense possession, and stated that the legislature was solely responsible for assessing the permissible limits of punishment and that the jury was solely responsible for affixing sentence in a particular case.49
In 1960, the Ninth Circuit in Gallego v. United States" upheld the provision of the 1956 Narcotic Drugs Import and Export Act imposing a five-year mandatory minimum sentence without suspension, probation or parole for unlawful importation of marijuana. Assuming an excessiveness holding to be implicit in Weems, the court noted nevertheless that the penalty was not "so out of proportion to the crime committed that it shocks a balanced sense of justice. At worst," the court continued, "it merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place." ' The summary treatment of the issue is easily explained by the court's apparent lack of sympathy with marijuana users; it quoted approvingly the moral denouncement delivered in Thomas.52
Slowly the tide began to turn. A California court recently blanched at upholding the five-year minimum sentence imposed for giving away one marijuana cigarette, especially when the case had entrapment overtones.53 But in 1967 the defendant in United States v. Ward" asked the Seventh Circuit to declare unconstitutional, as applied to marijuana, the sentencing provisions of the 1956 Act previously upheld by Gallego and subsequent cases. The no parole provision was indicted as inconsistent with current medical knowledge. After quoting at length from the then recently released Report of the President's Commission on Law Enforcement and Administration of Justice and from the Task Force Report on Drug Abuse, the court concluded:

The progress of scientific research in the whole area of narcotics and drug abuse, during the eleven years since [passage of the 1956 Act] has not resulted in 'the establishment of scientific knowledge to the extent that would enable us to nullify [section 7237] on constitutional grounds, even if we deemed it appropriate to do so.55

Thus appeared the perpetual fate of rationality arguments, whether applied to sanction or to classification. Two years later the Fifth Circuit still found the medical data inconclusive" and MassachusettS57 and California58 courts both summarily dismissed eighth amendment arguments.

Then,in 1968 the Court of Appeals for the District of Columbia took
a significant step. In its decision in Watson v. United States9 (Watson I),
a three-judge panel in an opinion by Judge Bazelon held that a mandatory ten-year sentence for appellant's third conviction for possession of heroin constituted excessive punishment in violation of the eighth amendment.6° The significance of Watson I was shortlived, however, because upon a rehearing en bane, the court avoided the eighth amendment issue and set aside the sentence on other grounds.6' In the en banc opinion (Watson 11), the court does make a strong eighth amendment argument based on Robinson 'v. California .62 Since this important constitutional point was not fully litigated below, the court did not believe it could adequately rule on the question. Although most of Judge McGowan's opinion in Watson ii is thus dicta, it does lay the foundation for future overturnings on eighth amendment grounds of possession sentences when applied to addicts.63
An additional indication of both the sympathetic attitude of the federal courts and the expanding -dimensions of the eighth amendment "excessiveness" argument appears iii a recent opinion by Judge Weinstein of the Eastern District of New York. In United States 'v. Kleinzahler,6' the issue was the applicability of the ameliorative provisions of the Youth Corrections Act65 to violations of the federal narcotic drug and marijuana laws. Defendant, a college graduate and highly salaried white collar worker, pleaded guilty to acquisition of marijuana without payment of the transfer tax (by any other name, possession for personal use). He was sentenced to a mandatory term of two years' imprisonment, which was suspended, two years' probation and a fine of $1,000. If the Youth Corrections Act had applied, he would have been entitled to have the conviction set aside upon successful completion of his period of probation.
The problem was that the Youth Corrections Act was expressly inapplicable to statutes with mandatory penalties. In light of the legislative history of the Narcotics Control Act of 1956, Judge Weinstein felt constrained to hold that the narcotics and marijuana laws imposed mandatory penalties within the meaning of the Youth Corrections Act.66 He noted, however, that he thought the result absurd.67 In a passage particularly germane to the constitutional issue and the meaning of Watson I, he stated:

While the result is harsh, it does not appear to rise to the kind of cruel
and unusual punishment proscribed by the Constitution, in light of the
possibilities of probation and suspension of sentence here present. The wisdom or justice of treating those young adults convicted of possession of marijuana in the same way as those convicted of armed bank or mail robbery or those convicted of selling narcotic drugs is doubtful. But revision of the law in this field must be left to Congress.68

Unlike Judge Weinstein, however, the Supreme Court of New Jersey was not satisfied with the mere possibility of suspension of prison terms meted out to first-offense possessors of marijuana for personal use. In its landmark decision in State v. Ward,69 the supreme court held as a matter of law that prison "sentences for first offenders should be suspended .1170 The court strove manfully to base the decision on its statutory authority to review sentencing suspension decisions for abuse of discretion. However, both the breadth of the holding and its reasoning suggest constitutional underpinnings.

In the first place, taken on its face, the court's opinion appears to hold that trial court denials of motions to suspend prison sentences for first offenders will always be reversed for abuse of discretion. However, such a "guidance" flies in the face of two basic procedural concepts: the sentencing authority is generally free to impose any penalty within the range permitted by the legislature; and to the extent that an appellate court reviews such judgments, it customarily defers to the proximity of the trial judge and reverses, on a case by case basis, only for gross disregard of the trial record and presentence reports. In effect, the New Jersey Supreme Court determined that where youthful marijuana users are concerned, imprisonment is an excessive sanction even though within the statutory range of alternatives. This is no ordinary decision.
Although the court sloughed over the analytical problem, it did not disguise its rationale. The disturbing number of users, the ambiguous nature of the wrong, and the counterproductive effect of imprisonment each played a part:

We cannot escape the unhappy fact that our youth have been involved with marihuana in disturbing numbers. That this is so does not palliate the wrong. Nor should we be thought to encourage or condone such conduct. The statute should and will be enforced. But it remains the policy of the law to reform the youthful offender. Sentencing judges should direct the punishments they impose to the goal of reformation. Too severe a punishment will do little towards advancing this goal. Incarceration is a traumatic experience for anyone. The effect must be particularly devastating upon young persons such as the defendant here. A sentence of two to three years in State Prison in a case like this will probably be more detrimental to both the offender and society than some other discipline.71

In essence, the court held that incarceration was not a rational sanction for this particular crime.
The sixteen years between Thomas on the one hand and Watson 1, Kleinzahler and Ward on the other have witnessed a significant expansion of the contours of the eighth amendment and a noticeable change in judicial attitude toward defendants charged with marijuana violations. As constitutional lawyers, we must acknowledge the difficulty of halting a rationality-excessiveness inquiry, once begun. For this reason, the New Jersey court's end run around the constitutional issue is a defensible approach. In any event, we think that the courts will continue to enter this thicket unless the legislatures reduce marijuana penalties to comport with reality.

B. Should the Burden Be Shifted?-Marijuana and Fundamental Rights

The Supreme Court's 1938 decision in United States v. Carolene
Products Co.72 is the most frequently cited authority for the presumption of constitutionality, the implications of which were explored in the preceding section. However, Justice Stone's famous footnote four, tentatively cataloging exceptions to the rule of judicial deference, is the philosophical forebear of contemporary contentions that marijuana legislation cannot be presumed constitutional. Recent constitutional history has been characterized by a new judicial activism in defense of "fundamental" human rights.73 Footnote four was a tentative attempt to anticipate and rationalize that activism while retreating from
the old economic activism and its major vehicle-substantive due process. Still allergic to the substantive due process label and to any form of judicial review not tied to more or less specific constitutional provisions, the modern Court has utilized the doctrine of incorporation and the once dormant equal protection clause to fill in the contours of footnote four. For some of the justices, substantive due process is limited, theoretically at least, to the specific guarantees of the first eight amendments, and perhaps their collective penumbra. To others, that phrase has an independent potency, sometimes more, sometimes less, than the Bill of Rights, including rights essential to a concept of ordered liberty. In either event, the "rights" protected must have the trappings of permanence. Frequently, however, pressures of new social developments have led the Court to expand the coverage of the specific provisions through unadulterated, but unlabeled, substantive due process. A similar development is the active judicial enforcement of the mandate of the equal protection clause to legislation involving "suspect classifications" or sensitive subjects. In either case, the Court is called upon to define and separate that "fundamental" area of human conduct, the regulation of which must be justified by the government, and that area where legisla-tive action carries the protection of the deferential presumption.
As advocates, the challengers of marijuana legislation must fit their contentions within the current patterns of constitutional pigeon-holing. To cast off the shackles of the stultifying presumption, they must persuade the courts that marijuana use somehow constitutes a fundamental right. Utilized, thus far unsuccessfully, for this purpose have been the eighth amendment, the first amendment free exercise of religion clause and the penumbral right of privacy. Failing with these approaches, the challengers have found in the ninth amendment a "right to get high."

1. The Robinson-Powell Argument

In Robinson v. California ,?4 clearly a substantive due process decision cloaked in the protective garb of the eighth amendment,?5 the Supreme Court held that the status of being a narcotics addict could not be made a crime. The Court was careful to note in dictum that the state legislatures were still free to punish addicts for possessing drugs.76 Subsequent courts found this distinction untenable'1 and the Supreme Court addressed it again in its 1968 decision in Powell v. Texas.78
Powell, a chronic alcoholic, had been convicted for public drunkenness. His conviction was affirmed in three separate opinions. However, five members of the Court, as then constituted, disavowed the Robinson dictum. The four dissenting justices found it "cruel and unusual" to punish an alcoholic "for a condition-being 'in a state of intoxication' in public-which is a characteristic part of the pattern of his disease and which, the trial court found, was not the consequence of appellant's volition but of 'a compulsion symptomatic of the disease of chronic alcoholism."' Justice White, casting the deciding vote for affirmance, asserted nevertheless that, "[u}nless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law." 80

Assuming for present purposes that a majority of the newly-constituted Supreme Court adheres to the principle that the state may not punish conduct performed under direct compulsion of a disease, application of the principle to marijuana use is extremely unlikely."' The challengers themselves assert that marijuana has been scientifically proven not to be addictive, either physically or psychologically. They can nevertheless argue that the state may not have its cake and eat it too: The rationality of the legislation rests upon the allegation that marijuana is at least psychologically "addictive," and the state may not now defend the punishment by arguing that it is not addictive. Superficially appealing, this argument must falter for two reasons. First, the state's interest in prohibiting marijuana use 'may rest on deleterious effects unrelated to psychological dependency. Second, defendants invoking the Robinson-Powell argument, even if it is applicable, are unlikely ever to prove by clear and convincing evidence, as they must, that they were without "free will" to desist from using marijuana.82

2. Free Exercise of Religion

Several major challenges to marijuana legislation, premised on the first amendment, have relied heavily on the California Supreme Court's 1964 decision in People v. Woody.83 Finding that sacramental use of peyote, a hallucinogenic drug, constituted the cornerstone of Peyotisni both as symbol and object of worship, the California Supreme Court held that prohibition of possession constituted a direct burden upon the free exercise of the defendant's religion, as practiced by the Native American Church. Since freedom of religious practices is not absolute, however, the court inquired whether the state had shown a "compelling interest" sufficient to justify the infringement.
First, the state could not support its allegations that use of peyote would lead to use of more dangerous drugs or would cause permanent injury to the user. 14 Assuming such a state interest to be legitimate, it was never proven, and could scarcely be labeled compelling. Second, the state insisted that fraudulent claims of religious immunity would frustrate enforcement of the state's narcotics laws. Again, the court found that the state had produced no evidence to that effect.35 Accordingly, since California had not shown that these presumably "compelling" state interests would be frustrated by the immunity, the narcotics statute was unconstitutional as applied to possession of peyote for religious purposes.
The court distinguished Reynolds v. United States,86 where the Supreme Court had ruled that Congress could constitutionally apply to Mormons a prohibition against polygamy. First, said the California court, polygamy was not essential to the practice of Mormonism, as was use of peyote to the practice of Peyotisrn. Second, the Supreme Court in Reynolds viewed polygamy as destructive of basic tenets of a democratic society, as dangerous and repulsive as human sacrifices. The state interest was therefore compelling and unavoidable.
Several defendants in recent marijuana cases, Dr. Timothy Leary among them, 117 have strenuously contended that the first amendment similarly requires immunity for users who seek in good faith the "religious experience" induced by marijuana and other psychedelic substances. Some users incorporated in 1965 the Neo-American Church, claiming a nationwide membership of twenty thousand.88 According to the tenets of the faith, psychedelic substances, particularly marijuana and LSD, are the "True Host," and it is the religious duty of all members to partake of the sacraments on regular occasions."'
Judicial response to the free exercise argument has been uniform only in result. Some courts, including the Fifth Circuit in the Leary case, have simply held that passage of a criminal law per se constitutes a compelling state interest overriding any free exercise claims.90 These courts think Reynolds indistinguishable, and cite the following language:

Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with practices ....

... To permit ... [a man to execute his practices because of his religious beliefs] ... would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government could exist only in name in such circumstances.91

The net result of such an approach is that criminalization of conduct which for some is a required religious practice is presumed constitutional. "Congress," said the Fifth Circuit, "has demonstrated beyond doubt that it believes marijuana is an evil in American society and a serious threat to its people." 92 Accordingly, "it [is] not incumbent upon the Government to produce evidence to controvert the testimony of witnesses on the controversial question whether use of the drug is relatively harmless." 93
Other courts have assumed that the Woody interpretation of Reynolds
is correct, but have found that the Neo-American Church is not a bona fide religion 94 and that personal use of psychedelic drugs, untied to a bona fide organized church, cannot constitute the religious exercise protected by the first amendment.95 Alternatively, these courts have determined that marijuana use is not essential to religious practice as was peyote in Woody and that the compelling interests in prevention of violence and self-destruction are rationally supported by current medical knowledge.96
We think the courts have correctly rebuffed the free exercise argument but not for the right reasons. First, we do not agree that Reynolds
holds all criminal legislation to be outside the balancing test ordinarily employed in free exercise cases.97 Second, we believe that if marijuana use were essential to the practice of a bona fide religion, it would be incumbent on the state to demonstrate that use of the drug would frustrate its interests in preventing violence and individual harm to the user. More than a rational basis would be required. However, we agree with Professor Donald Giannella that the free exercise clause would become dysfunctional were psychedelic philosophy to qualify as a religion.98 As we will suggest below, there should be some degree of constitutional protection for this allegedly "religious" personal behavior,99 but severe perversion of the principle embodied in the free exercise clause would occur were it to become a sanctuary for all colorably spiritualistic conduct that otherwise stands condemned.

3. Right of Privacy

Any litigant attempting to secure recognition of any right as "funda-
mental," no matter how remote, will likely cite Griswold v. Connecticut.'°° Marijuana advocates are no exception. Like Robinson, Griswold was essentially a substantive due process decision.'°' In a decision rationalized by Justice Douglas under the rubric of penumbral rights tied to specific guarantees of the Bill of Rights, the Court held that the states were substantively barred from prohibiting the use of birth control devices. Together with Stanley v. Georgia, 102 where the Court held that private possession of obscene material may not be punished, Griswold serves as the basis for an argument that private possession and use of marijuana, at least in the home, may not be punished.
Because of the "chilling effect" on privacy necessitated by enforcement techniques where crimes are ordinarily committed in private, the Griswold-Stanley argument is appealing. The problem, however, is one of limitation. Surely it cannot be contended that private acts cannot ever constitute crimes. The Court specifically refuted this notion in Stanley:

What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are jnvolved in most statutes making mere possession criminal.103

As precedents and on their own terms, Griswold and Stanley are not enough to support the proposition that private marijuana possession cannot be punished. "Fundamental" rights other than simple privacy were involved-marital freedom and the "right to receive" 104 written materials. In each case the Court was dealing with isolated problems. In Griswold, the Court finally grappled with an issue it had avoided for a decade;105 the multiplicity of opinions and labels manifest the reason for its reluctance.'°6 In Stanley, the Court probably took a tentative step toward a revision of the obscenity doctrine. The Court may eventually abandon the notion that obscenity is not constitutionally protected, and may establish instead that it may be prohibited only when it is distributed, displayed, or employed in such a way as to create a nuisance to others. '°7 Holding that private possession may not be prohibited may represent the first step along that path.
In any event, so long as the fundamental rights framework is utilized, Griswold and Stanley do not alone make the challengers' case. State and federal courts confronted with the privacy argument have found it lacking.108 Within the current matrix of constitutional doctrine, the privacy factor functions as a catalytic rather than an active force. Substantive freedoms that may be qualified in public are absolute in private in the same way- that exercise of religious beliefs is a relative freedom while freedom of belief is absolute. Marital and perhaps consensual sexual freedom and intellectual liberty were the substantive forces in Griswold and Stanley. In order for privacy to affect the marijuana equation, a right to pursue sensual individuality must pre-exist.

4. The Ninth Amendment-The Forgotten Kitchen Sink

Unable to tie marijuana use to an established "fundamental right," the challengers have resorted to the ninth amendment as a vehicle for defining the necessary protected right. Their advocacy for a "right to get high" 109 or a right "to use one's body as one wishes" 110 is essentially an attempt to equate sensual with intellectual and spiritual freedom. Although there may be some merit in such a contention, its advocates have not yet established a sound constitutional basis. The typical approach is to catalog all civil liberties cases, ignoring the precise constitutional principles involved, and to suggest that rights reserved to the people by the ninth amendment amount to the constitutional equivalent of "personal liberty." 111 Accordingly, any legislation which restricts individual pursuit of happiness must be necessitated by sound state interests.
Obviously the ninth amendment is, in such a context, merely a launching pad for the free-form pursuit of happiness inquiry utilized in the early alcohol Prohibition cases. It surely does not function as an "explicit" constitutional limitation, nor does it suggest a judicial limitation. The challengers scarcely serve their cause well by asking the courts to discard a century and a half of constitutional doctrine as a price for the desired decree.
Even former Justice Goldberg, whose requiem for the ninth amendment in Griswold induced the argument, noted that the fundamental rights existing apart from the Bill of Rights must be found in the "traditions and [collective] conscience of our people." 112 In other words, the ninth amendment is simply another way of avoiding the due process label while applying the incorporation doctrine and an expanded version of the traditional historically rooted due process test. "Fundamentality" must have the appearance of permanence. History and perhaps contemporary positive morality provide an acceptable index of permanence.

Historical inquiry might well reveal a traditional acceptance of the right to become intoxicated so long as others are left alone, and the rash of contrary decisions after 1915 might have constituted temporary constitutional madness. The research reported earlier in this Article provides tentative support for this hypothesis.113 Further digging into historical sources would appear warranted. At least a palatable constitutional framework would be employed.
Similarly, developing notions of positive morality might provide an acceptable basis for the "right to use one's own body." Laws regarding abortion, 114 nudism,115 homosexuality-116 and motorcycle crash helmets"' are already receiving adverse judicial treatment, usually on other grounds. The American Civil Liberties Union plans a continued campaign against these laws and against drug legislation under the "body use" umbrella.,-',, Although an extended critique of this approach is beyond the scope of this Article, we do not believe, as a general matter, that the courts are properly advised to keep the legislatures in touch with evolving positive morality, at least while social mores are in a state of transition. Another question would be presented if that evolution had rendered current legislation aberrational, but that is not yet the case with respect to the issues noted above. Abortion, homosexuality and drug abuse are currently being addressed by the public opinion process. In such circumstances, where an articulation of positive morality would be the gravaman of judicial interference, we believe judicial restraint to be in order.
In any event, neither the historical nor the positive morality approach has been utilized and supported by those attacking the marijuana laws. Instead they have been content to cry "fundamental right," "ninth amendment" and "right of privacy," and have expected the courts to go along. Much as we doubt the wisdom of current marijuana legislation, we think such a facile perversion of constitutional doctrine too large a price to pay for its invalidation.

C. Another Constitutional Perspective: The Police Power

All this is not to say, however, that we do not think marijuana legislation to be susceptible to an acceptable constitutional attack. To the contrary, our objections to the usual arguments emanate from a concern for institutional responsibility. So long as the "fundamental rights" perspective is invoked-despite the extant divergent notions of fundamentality-we believe that only extensive historical and philosophical inquiry could and should now persuade a diligent judiciary, conscious of its limited role, that freedom of marijuana use is "essential for the orderly pursuit of happiness by free men." 119 To put it quite simply, the drug revolution is generally perceived as a contemporary phenomenon. When roaming in the vague expanse of substantive due process, however labelled, the courts should continue seeking to root their response in the mandate of history or in some other indicium of the "collective conscience of the people." Fundamentality suggests permanence, and drug use too much resembles a transient social problem to qualify.
At the same time, however, we believe that our central objection to the marijuana laws is of constitutional dimensions. We believe that those laws are irrational. We noted above that if they are entitled to the presumption of rationality, they should stand, at least at the present time. We do not think they are entitled to that presumption. We would impose the burden of justification on the state not because any fundamental "right" is affected but because the conduct prohibited is on its face private or self-regarding. Because the police power is designed to promote the public health, safety, welfare and morals, it can reach private conduct only if a public detriment is thereby avoided. On the one hand, if the conduct proscribed on its face involves other people or property, the courts must presume that the legislature rationally found an injurious effect. On the other hand, if the conduct proscribed does not prima facie affect others, the state must demonstrate a rational basis in fact.
It should be apparent that this is a modified version of the "inherent limitations" approach popular in the nineteenth century. Unlike the earlier conception, it does not preclude the state from reaching private conduct. Unlike the "rights" framework, it does not impose a heavy burden on the state to justify legislation affecting the protected right. nor does it burden the courts with the onerous balancing responsibility. It simply shifts to the state the original burden of demonstrating a rational factual nexus between the proscribed private activity and the public weal. If the state can sustain that burden, the inquiry is terminated. This requirement would not represent a significant change in current doctrine. First, it affects only a limited class of situations where the physical and social sciences have not yet established the relevant factual propositions but where the hypotheses regarding public effect that underlie the legislation have no rational basis in current data. In short, given the "no-evidence" situation with respect to prima facie private conduct, the state is not entitled to guess. Moreover, the principle is limited to legislation prohibiting allegedly injurious private conduct, and does not extend to a public policy that seeks to deter such conduct through nonprohibitive regulation or taxation.
It should also be noted that this "inherent limitation" approach, which has lain dormant for half a century, has already begun to forge its way into modern constitutional reasoning, especially on the state level. Particularly relevant are the motorcycle helmet cases '120 to which we will return later .121 In a recent case 122 holding unconstitutionally vague a Tennessee statute prohibiting nudist colonies, 121 a concurring'24 member of the three-judge district court located the true parameters of the decision:

There is nothing in the record to indicate directly or by inference that any nudist colony or member thereof is the source of any injury whatever to the public welfare, health, or morals. To the contrary, the proof in the record asserts that the prime purpose of the nudist movement is to promote health of the body and mind.

There is nothing in the proof whatever to indicate that nudism is other than an idiosyncratic, though innocuous, practice which engenders no harm or danger either to its members or society in general.'25

It is in this "power" rather than the traditional "rights" framework'2 that statutes involving private consensual sexual conduct, abortion and drug abuse should be tested at both state and federal levels of government. Such an approach was theoretically unnecessary at the federal level until quite recently. Unlike the states, the federal government did not possess plenary police powers; since Congress had only delegated powers, it could not conceivably reach private conduct without exceeding permissible Article I bounds. Both the Harrison Act and the Marihuana Tax Act made the prohibited acts revenue-related to avoid this difficulty. However, it would be foolish to suggest in 1970 that there is no federal police power. The Article I grants of power have now become analytical equivalents of "promotion of public health, safety and morals," and the necessary and proper clause imposes no more than the traditional rational basis in fact requirement. The new Comprehensive Drug Abuse Prevention and Control Act of 1970 illustrates the disappearance of the early limitations by abandoning the revenue masquerade and reaching drug use directly. 127
If, under the intrinsic limitation theory or some other rationale, the state and federal governments were called upon to establish a rational scientific basis for marijuana legislation, we believe they would fail.128 If the governmental objective were to prevent harm to others, they would be able to find no reliable scientific support for the proposition that marijuana use itself leads to violent crime or to use of hard narcotics which in turn leads to crime. Although they could prove that the drug has some adverse effect on psychomotor functions, the relationship between this fact and harm to others through automobile accidents is tenuous at best, especially when compared with alcohol.
If the state's objective were to prevent the user from injuring himself on the ground that he would otherwise become a drain on the state's resources rather than a contributor, the essential scientific hypothesis is that marijuana use "inevitably leads to excess" or to permanent physical or psychological incapacitation and therefore to dependency. Again, however, the government would be unable to establish a rational factual basis for this hypothesis. First, marijuana is not physically addictive and creates no serious psychological dependence, at least not as much as alcohol or tobacco. We do not believe the "addictive" qualities of alcohol are "inevitable" enough to justify prohibition and that the harm engendered by tobacco dependence is too remote to justify prohibition under the "dependency" rationale. Moreover, even if the addictive qualities of hard narcotics justify their prohibition, there is insufficient support for the "stepping stone" hypothesis to sustain marijuana prohibition on that ground.
Second, marijuana users do not run a significant risk of physical or psychological harm. Use of the drug produces no significant acute adverse psychological effects and probably contributes to no chronic ill effects as great as those produced by alcohol or tobacco. Nor would the government be able to establish a significant risk of psychological incapacitation. As to the hypothesis that the drug precipitates "psychotic breaks," the evidence is slight and at best establishes the proposition that the drug is not itself a creative force, perhaps accentuating psychological tendencies already present in predisposed individuals. There is no reliable evidence that marijuana smoking produces any chronic psychological ill effects.
Some commentators have urged that the state has no power to protect the individual from his own stupidity and that the dependency rationale is merely a cover for unwarranted paternalism.'29 We are not prepared to go so far as a matter of constitutional law;'3° there may be circumstances where the risk of incapacitation is so substantial that criminal legislation is warranted. In fact, the line between self-regarding harm and societal harm, drawn in the breach by the dependency rationale, is increasingly difficult to draw as society becomes more complex and its members more interdependent. Moreover, whenever the subject conduct is colored by moral considerations, as are drug practices, where that line is drawn is determined not so much by logic or precedent as by the degree to which the society at a given time is willing to tolerate deviance. The difference between social tolerance in 1915 and 1970 is the best possible proof of this proposition. In short, this is not fertile ground for a neutral principle.
At the same time that we reject the general rule, we contend that in many individual cases the state cannot bear its burden of affirmative proof of the risk of incapacitation or other adverse social effect, albeit indirect. Setting aside for a moment the possible moral considerations, we do not think that either marijuana prohibition or the compulsory motorcycle helmet laws13' can be justified on this basis. However, even if marijuana use is an appropriate matter for criminal legislation, the rationality arm of the eighth amendment should prohibit imprisonment for violation of that legislation, even for five minutes.132
Now we come to the heart of the matter. It is the so-called "moral" considerations which we believe truly motivated the preceding generations of legislators responsible for marijuana prohibition. Once the Harrison Act converted narcotics abuse from a medical to a moral problem, marijuana was easily superimposed on the existing framework because of mistaken factual assumptions. At the same time, the undercurrent of American culture opposed to intoxicant use in any form reached the level of positive morality when combined by criminal law with the early twentieth century preference for cultural homogeneity. That is, because of the ethnic identity and small number of users, the stamp of illegitimacy successfully made the use of marijuana immoral; at the same time the stamp of illegitimacy had to be withdrawn from alcohol use because the large number of middle-class users were unwilling to comply.
It is because the law created for a half century a. positive morality opposed to drug use that the state, defending its laws in court, might now rely on its duty to protect the spiritual and moral well-being of the community. The core of the police power being self protection, the state would adopt Lord Devlin's argument that where societal opposition to certain conduct on moral grounds is so pervasive that its widespread commission would weaken the social fabric and facilitate the breakdown of societal institutions, the society is justified in suppressing that conduct.133 As applied to marijuana, the law's defense is that marijuana use frustrates productive participation in social, economic and political processes and that its widespread use would bring society grinding to a halt.
Even if we accepted Lord Devlin's justification for the legal enforcement of positive morality, which we do not,'34 it still would not justify marijuana prohibition. In the first place, as we shall note in the concluding section, the moral judgments supporting the early marijuana laws are no longer predominant. Especially at a time when a sizeable segment of society attributes many social ills to a mindless pursuit of material values and when that society becomes increasingly depersonalized, there is a growing preference for individual search for identity and spiritual renaissance. Second, in light of current use patterns, the effect of marijuana use on productivity and therefore on the social fabric is too speculative to justify criminal sanctions. In fact, the social fabric may suffer greater damage through continued prohibition than from legalization; that is, as the number of deviants continues to increase, the law cannot be successfully enforced and the authority of all law is endangered. As a larger and larger segment of the society ceases to view marijuana use as a moral question (except insofar as it is against the law), marijuana prohibition, like alcohol prohibition before it, cannot be sustained.
In conclusion, we do not believe that a state can sustain its burden of establishing a rational nexus between a person's private use of marijuana and either harm to others or incapacitating harm to himself. Moreover, the state may not legitimately rely on alleged harm to public morals. Public opinion, properly informed, would oppose marijuana no more than it opposes alcohol. And to the extent that marijuana use is inconsistent with prevailing positive morality, compliance with that morality is not a legitimate aim of the criminal law as a matter of political philosophy or constitutional law. As Justice Brandeis eloquently noted in his famous dissent in Olmstead v. United States:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.135

1 United States v. Carolene Prods. Co., 304 U.S. 1+t, 152 n.4 (1938).
2 Gomillion v. Lightfoot, 364 U.S. 339 (1960) (voting rights); United States v. O'Brien, 391 U.S. 367 (1968) (dictum) (free speech).
3 Although a requirement of fact-finding investigations for all legislation is desirable, judicial enforcement would reward persuasive legislative history and shake the separation of powers doctrine to its very roots. The spectre of judicial surveillance of everyday legislating, albeit by method and not substance, is one not likely to enthuse either legislators or judges.
Counsel for defendants in Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969), contended that the notable lack of legislative investigation into medical and scientific evidence concerning marijuana "violates certain minimum standards of rationality which must be part of the legislative process." Oteri & Silverglate, The Pursuit of Pleasure: Constitutional Dimensions of the Marihuana Problem, 3 StiFF. L. Ray. 55, 60 (1968). However, the trial court and the Supreme Judicial Court both responded correctly that the nature of the legislative records was not the issue before the court. The question was whether the facts today are inconsistent with assumptions necessary to the rationality of the legislation. Commonwealth v. Leis, Nos. 28841-2, 28844-5, 28864-5 (Suffolk Super. Ct. 1968), excerpted in 3 Stm. L. Rev. 23, 25 (1968) (Tauro, C.J.), aff'd,. 355 Mass. 189, 243 N.E.2d 898 (1969).
4 159 Cal. 508, 515, 114 P. 835, 838 (1911) (emphasis added).
5E.g., Gonzalez v. State, 168 Tex. Crini. 49, 323 S.W.2d 55 (1959), citing Gonzalez v. State, 1963 Tex. Crim. 432, 293 S.W.2d 786 (1956); Miller v. State, 50 Del. 579, 137 A2d 388 (1958), citing State v. Navaro, 83 Utah 6, 26 P.2d 955 (1933).
6 People v. Glaser, 238 Cal. App. 2d 819, 48 Cal. Rptr. 427 (Dist. Ct. App. 1965),
cert. denied, 385 U.S. 880 (1966); People v. Mistriel, 110 Cal. App. 2d 110, 241 P.2d 1050 (Dist. Ct. App. 1952).
7 See pp. 1104-10 supra.
8 South Carolina Hwy. Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 191 (1938) (emphasis added).
9 See United States v. Drotar, 416 F.2d 914 (5th Cir. 1969); Raines v. State, 225 So. 2d 330 (Fla. 1969); People v. Stark, 157 Cob. 59, 400 P.2d 923 (1965); Commonwealth v. Leis, Nos. 28841-2, 28844-5, 28864-5 (Suffolk Super. Ct. 1968), 4'd, 355 Mass. 189, 243 N.E.2d 898 (1969); cf. People v. McKenzie, 458 P.2d 232 (Cob. 1969).
10 E.g., Scott v. United States, 395 F.2d 619, 620 (D.C. Cir. 1968); People v. Walton,
116 111. App. 2d 293, 296, 253 N.E.2d 537, 539 (1969).
11 People v. McKenzie, 458 P.2d 232 (Cob. 1969); People v. Stark, 157 Cob. 59, 400 P.2d 923 (1965).
12 See cases cited notes 28-31 infra.
13 E.g., United States v. Kleinzahler, 306 F. Supp. 311, 317 (E.D.N.Y. 1969) (Weinstein,
J.); People v. McKenzie, 458 P.2d 232, 236 (Cob. 1969).
14Robinson v. United States, 327 F.2d 618, 624 (8th Cir. 1964) (Biackniun, J.) ("the
boundary line, if any, between narcotics and marijuana is indistinct and . . . statutes and interpreting courts do not give much emphasis to it"); Spence v. Sacks, 173 Ohio St. 419, 420, 183 N.E.2d 363, 364 (1962) ("There is no question that the state had, under its police power, the right to classify cannabis as a narcotic drug."); People v. Glaser, 238 Cal. App. 2d 819, 48 Cal. Rptr. 427 (Dist. Ct. App. 1965), cert. denied, 385 U.S. 880 (1966).
15 People v. Stark, 157 Cob. 59, 66, 400 P.2d 923, 927 (1965).
16 See text at notes 132-35 infra.
17 See p. 979 supra.
18E.g., Raines v. State, 225 So. 2d 330 (Fla. 1969).
19 See, e.g., Commonwealth v. Leis, 243 N.E.2d 898, 905 (Mass. 1969).
20 See Borras v. State, 229 So. 2d 244, 246 (Fla. 1969).
21 People v. Aguiar, 257 Cal. App. 2d 597, 602-03, 65 Cal. Rptr. 171, 174-75 (1)1st. Ct. App.), cert. denied, 393 U.S. 970 (1968).
22 Id. at 600, 65 Cal. Rptr. at 173.
23 Commonwealth v. Leis, 243 N.E.2d 898, 902 (Mass. 1969).
24 Defendant in People v. McKenzie, 458 P.2d 232 (Cob. 1969), varied the traditional underinclusiveness argument. He contended that the continued classification of marijuana as a "narcotic" drug after a legislative revision in 1968 could not be defended, since LSD, clearly a more harmful drug, was classified as a "dangerous" drug. Possession of LSD was a misdemeanor while possession of marijuana was a felony. Citing its decision in People v. Stark, 157 Cob. 59, 400 P.2d 923 (1965), the Colorado Supreme Court deferred to the unusual classification.
25 3 Suff. L. REV. 23, 31 (1968).
26 See, e.g., People v. Oasis, 264 Cal. App. 2d 324, 329, 70 cal. Rptr. 524, 529 (Dist. Ct. App. 1968), cert. denied, 393 U.S. 1108 (1969); People v. Aguiar, 257 Cal. App. 2d 597, 602, 65 Cal. Rprr. 171, 176 (Dist. Ct. App.), cert. denied, 393 U.s. 970 (1968).
27 People v. Stark, 157 Cob. 59, 67, 400 P.2d 923, 927-28 (1965); Cf. People v.
Oatis, 264 Cal. App. 2d 324, 70 Cal. Rptr. 524 (Disc. Ct. App. 1968), cert. denied, 393 U.S. 1108 (1969).
28E.g., People v. Aguiar, 257 Cal. App. 2d 597, 602-03, 65 Cal. Rptr. 171, 174-75 (1968); People v. Stark, 157 Cob. 59, 66,400 P.2d 923, 927 (1965).
29 People v. Aguiar, 257 Cal. App. 2d 597, 603, 65 Cal. Rpcr. 171, 175 (1968).
30 Commonwealth v. Leis, Nos. 28841-2, 28844-5, 28864-5 (Suffolk Super. Ct. 1968),
excerpted in 3 Surr. L. Rev. 23, 27-28 (1968), aff'd, 355 Mass. 189, 243 N.E.2d 898
(1969).
31E.g., Commonwealth v. Leis. 243 N.E.2d 898, 903 (Mass. 1969).
32 Id.
33 See p. 1105 supra.
34 217 U.s. 349 (1910).
35 Id. at 377.
36 Id.
371d at 366.
38E.g., Packer, Making the Punishment Fit the Crime, 77 HARV. L. REv. 1071, 1075-76 (1964).
39 217 U.S. at 371, quoting O'NeiI v. Vermont, 144 U.S. 323, 339-40 (1892) (Field, J., dissenting).
40 217 U.S. at 377.
41 See, e.g., Gallego v. United States, 276 F.2d 914 (9th Cir. 1960); Turkington,
Unconstitutionally Excessive Punishments, 3 CRIM. L. BTJI.L. 145 (1967); Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 HARv. L. REv. 635 (1966).
42 See Packer, supra note 38.
43 Cf. Rudolph v. Alabama, 375 U.S. 889, 889-91 (Goldberg, J., dissenting from denial of certiorari).
44 Packer, supra note 38, at 1076.
45 Trop v. Dulles, 356 U.S. 86, 100-01 (1958).
46 224 La. 431, 69 So. 2d 738 (1953).
47 Id. at 435, 69 So. 2d at 740.
48 Id State v. Bellam, 225 La. 445, 73 So. 2d 311 (1954), the court rebuffed a similar challenge to a seven-year sentence without parole for a second offense of possession of marijuana by simply citing Thomas.
49 Garcia v. State, 166 Tex. Crirn. 482, 316 S.WT.2d 734 (1958). The statute provided that a first offense was punishable by not less than two years nor more than life. The court applied the hands-off principle common to state courts, according to which any sentence within the statutory limits is valid. See, e.g., Perkins v. North Carolina, 234 F. Supp. 333 (W.D.N.C. 1964); Saunders v. State, 208 Tenn. 347, 345 S.W.2d 899 (1961); State v. Jiles, 230 S.C. 148, 94 S.E.2d 891 (1956).
50 276 F.2d 914 (9th Cir. 1960).
51 Id. at 918.
52 Id. The Ninth Circuit reaffirmed Gallego in Haiprin v. United States, 295 F.2d 458 (9th Cir. 1961), and Bettis v. United States, 408 F2d 563 (9th Cir. 1969).
53 People v. Marsden, 234 Cal. App. 2d 796, 798, 44 Cal. Rptr. 728, 729 (Dist. Ct. App. 1965).
54 387 F.2d 843 (7th Cit. 1967).
55 Id. at 848.
56 United States v. Drorar, 416 F.2d 914 (5th Cir. 1969).
57, Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969).
58 People v. Sheridan, 271 Cal. App. 2d 429, 76 Cal. Rptr. 655 (Dist. Cr. App. 1969); cf. United States ex ref. Fink v. fleyd, 287 F. Supp. 716 (E.D. La. 1968) (deprivation of bail pending appeal for person convicted of sale of marijuana to person over twentyone and sentenced to five year incarceration does not violate eighth amendment).
59 No. 21,186 (D.C. Cit., Dec. 13, 1968) (panel), modified, No. 21,186 (D.C. Cit., July 15, 1970) (en banc). TVatson I is excerpted in 37 U.SL.W. 2352 (Dec. 24. 1968) and reprinted in 4 CmM. L. REP. 3051 (Dec. 25, 1968).
60 the court identified numerous factors germane to its decision, delineation of a precise holding is difficult and the court probably so intended. We would suggest, however, that the court held that the imposition of rigid severe sentences, identified by comparison with other offenses and by the absence of sentencing discretion to tailor the penalty to the culpability of the offender, is unreasonable either in the context of offenses closely related to if not compelled by disease or in the context of victimless crimes.
61 The court upheld Watson's conviction but remanded for resentencing in light of the Narcotic Rehabilitation Act of 1966. In so doing, the court declared unconstitu-
tional a provision of that Act which exempts addicts with two prior narcotics convictions, holding such a provision to be a denial of equal protection. No. 21,186, at 29 (D.C. Cir., July 15, 1970) (en bane).
62 370 U.S. 660 (1962). Judge McGowan noted that if Robinson's deployment of the Eighth Amendment as a barrier to California's making addiction a crime means anything, it must also mean in all logic that (I) Congress either did not intend to expose the non-trafficking addict possessor to criminal punishment, or (2) its effort to do so is as unavailing constitutionally as that of the California legislature.
No. 21,186, at 19 (D.C. Cir., July 15, 1970) (en bane).
63 For the future, the addict, whose acquisition and possession of narcotics is
solely for his own use and who wishes to defend on these grounds, is surely not
at a loss to know how to do so .... To the extent that he wishes to assert that the statutes are not to be read as applicable to him . . . [he should] make an alternative claim of the constitutional defectiveness, under Robinson, of the statutes as applied to him.
Id. at 21-22.
64 306 F. Supp. 311 (E.D.N.Y. 1969).
6518 U.S.C. § 4209, 5010(a) (1964).
66 Judge Weinstein noted:
In light of the unique structure and harshness of the penalty provisions of the narcotics and marijuana laws-almost byzantine in their complexity-and previous interpretations of related statutes, it is clear that the penalties are "mandatory" within the meaning of [the Youth Corrections Act].
306 F. Supp. at 315.
67 id. at 317.
68 id. (emphasis added).
69 State v. Ward, No. A-9 (N.J., Oct. 26, 1970). The court affirmed the conviction but modified the sentence. Two justices dissented from the affirmance on the grounds that the defendant did not receive a fair trial. They concurred in the sentencing modification on the grounds that the sentence was "grossly excessive."
70 id. at 9. Although the court devoted some attention to the defendant's particular record and probation report, id. at 7, it did not pretend to limit the decision to the case at bar. At one point the court stated that it was establishing "guidelines for the sentencing of first offenders who were found guilty of possessing marijuana for their own use." Id.
71 Id. at 8.
72 304 US. 144 (1938).
73 See generally A. MASON, THE SUPREME COURT FROM Taft TO Warren (1969);
Mason, Judicial Activism: Old and New, 55 V. L. REv. 385 (1969).
74 370 U.S. 660 (1962).
75 Id. at 685 (White, J., dissenting).
76 Id. at 665, 666, 667-68.
77 See, e.g., Watson v. United States, No. 21,186 (D.C. Cfr., July 15, 1970) (en banc); Castle v. United States, 347 F.2d 492. 495 (D.C. Cir. 1964), cert. denied, 381 US. 929 (1965).
78 392 U.S. 514 (1968).
79 Id. at 558 (Fortas, J.).
80 Id at 548-49. Although Justice White dissented in Robinson, he saw no distinction between the status of addiction and acts compelled by that status. He voted to affirm the conviction in Powell because he found nothing in the record to support a finding that Powell had a compulsion to "frequent public places when intoxicated." Id.
81 The contention has already been rejected out of hand in Commonwealth v. Leis, 243 N.E.2d 898, 906 (Mass. 1969), and United States v. Drotar, 416 F.2d 914, 916 (5th Cir. 1969).
82 See Powell v. Texas, 392 U.S. 514, 524-26 (1968).
83 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964). Contra, State v. Big Sheep, 75 Mont. 219, 243 P. 1067 (1926).
84 61 Cal. 2d at 722, 394 P.2d at 818, 40 Cal. Rptr. at 74.
85 Id. at 723, 394 P.2d at 819, 40 Cal. Rprr. at 75.
86 9gTJ.5. 145 (1878).
87 Leary v. United States, 383 F.2d 851, 857-58 (5th Cit. 1967), rev'd, 395 US. 6 (1969).
88 See United States v. Kuch, 288 F. Supp. 439, 443 (D.D.C. 1968).
89 See id.; State v. Ballard, 267 N.C. 599, 602, 148 S.E.2d 565, 568 (1966), cert. denied,
386 U.S. 917 (1967).
90 383 F.2d at 860-61. See also State v. Ballard, 267 N.C. 599, 602, 148 S.E2d 565, 568
(1966), cert. denied, 386 US. 917 (1967).
91 98 U.S. 145, 166, 167.
92 383 F.2d at 861 (emphasis added).
93 Id. at 860-61.
94 E.g., United States v. Kuch, 288 F. Supp. 439, 452 (DD.C. 1968).
95 People v. Mitchell, 244 Cal. App. 2d 176, 52 Cal. Rptr. 884 (Dist. Ct. App. 1966).
96 United States v. Kuch, 288 F. Supp. 439, 452 (D.D.C. 1968).
97 judge Gasch in the Kuch case apparently assumed that the customary balancing test would be applicable if the Neo-American Church were a bona fide religion. Before applying the "prevailing doctrine," however, he criticized the Supreme Court:
No United States District judge who must act within the confines of a record and available judicial time has the wisdom or means of doing adequately what the cases appear to require. It is to be hoped that there will develop a constitutional doctrine in this field that more closely approximates that contemplated by the framers of the Constitution and that leaves the balancing function in all but obvious cases of clear abuse in the hands of Congress, where it belongs.
Id. at 446.
98 Giandlla, Religious Liberty, Nonestablishinent, and Doctrinal Development, Part I: The Religious Liberty Guarantee, 80 Hv. L. REV. 1381, 1426.27 (1967).
99 See note 5 at p. 1175 infra.
100 381 US. 479 (1965).
101 See id. at 507 (White, J., concurring).
102 394 U.S. 557 (1969).
103 Id. at 568 n.11.
104 Id. at 564.
105 See, e.g., Poe v. Ullman, 367 U.s. 497 (1961); Tileston v. Ullman, 318 U.s. 44
(1943).
106 The six Griswold opinions are particularly notable for the light they shed on each author's conception of his role in the constitutional system. The philosophical parameters of the marijuana problem and the birth control problem are identical. For this reason alone, Griswold is essential reading for all advocates seeking to break new constitutional ground.
107 See The Supreme Court, 1968 Term, 83 NARy. L. Rxv. 147-54 (1969); Comment,
Karalexis v. Byrne and the Regulation of Obscenity: "1 Ant Curious (Stanley)," 56 VA. L. REV. 1205 (1970).
108 United States v. Drorar, 416 F.2d 914, 917 (5th Cir. 1969); Borras v. State, 229
So. 2d 244, 246 (Fla. 1969); People v. Aquiar, 257 Cal. App. 2d 597, 65 Cal. Rptr. 171 (Disr. Cr. App.), cert. denied, 393 U.S. 970 (1968).
109 See, e.g., People v. Glaser, 238 Cal. App. 2d 819, 48 Cal. Rptr. 427 (Dist. Ce. App. 1965), cert. denied, 385 US. 880 (1966); Oteri & Silverglate, supra note 3; Note, Substantive Due Process and Felony Treatment of Pot Smokers, 2 GA. L. REV. 247, 252-59 (1968).
110See note 118 infra.
111 E.g., Note, supra note 109, at 257.
112 381 U.S. at 493, quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (brackets by Goldberg, J.).
113 See pp. 1005-10 supra.
114 E.g., Babbitz v. McCann, 310 F. Supp. 293 (ED. Wis.), appeal dismissed, 39 U.SL.W. 3144 (U.S. Oct. 12, 1970).
115 E.g Roberts v. Clement, 252 F. Supp. 835 (ED. Tenn. 1966).
116 E.g., People v. Roberts, 256 Cal. App. 2d 488, 64 Cal. Rptr. 70 (1967) (sodomy prohibition void as to consenting married couples, questionable as to consenting male adults).
117 American Motorcycle Assn v. Davis, 11 Mich. Ct. App. 351, 158 N.W.2d 72
(1968). Contra, Commonwealth v. 1-lowie, 354 Mass. 769, 238 N.E.2d 373, cert. denied,
393 US. 999 (1968).
118 The Board of Directors of the ACLU is now contemplating a policy recommen-
dation that the organization press for judicial recognition of the right to do with one's body whatever he wishes, including using drugs. Washington Post, June 8, 1970, § A, at 3, col. 5.
119 Meyer v. Nebraska, 262 U.s. 390, 399 (1923).
120 See note 117 supra.
121 See text at note 131 infra.
122 Roberts v. Clement, 252 F. Supp. 835 (ED. Tenn. 1966).
123 The court used an increasingly popular escape valve, holding the terms "nudist colony" and "nudist practices" unconstitutionally vague since, in light of the dictionary definition of "nude" and "nudity," they literally might be construed to "prevent nudism in health cluhs,.YMCA's school gymnasiums or other recreational systems, and possibly in the home." Id. at 843.
124 Concurring in a separate opinion, judge Darr correctly noted that "nudism" and "nudist" are distinguishable, grammatically and in common parlance, from "nude" and "nudity," and that it is inconceivable that the statute covers people who are temporarily nude. Id. at 84-47. Instead he opined that the statute constituted unwarranted invasion of the rights of privacy and of association of those who wish to engage in the cult of nudism. He employed the ninth amendment and the equal protection clause as well, cataloging all the recent Supreme Court cases speaking to privacy and association to support his holdings. But as we noted earlier, context is extremely important in constitutional decision-making, especially in an area as openended as "privacy." The sanctity of the marital relation-under any view of fondamentalky-and the structural significance of political association and free expression of ideas are the dispositive overtones in the privacy cases. The "right to privacy" is a dependent concept, and this part of the judge's opinion, standing alone, is unconvincing.
125 id. at 850.
126 We do not pretend that the sought-after principle could not be expressed in terms of a right. Indeed the temptation is great to limit the government to the "otherregarding" rationale and to enunciate a correlative right to pursue happiness as one pleases as long as others are not harmed. See Note, supra note 109, at 254-55.
The difference in attitude is more significant than the semantic difference. The "power" approach in effect demands of the government, "Why on earth do you want to proscribe the conduct; why do you care?" The "right" approach suggests, "You can't do this unless. . .
In a highly complex society where little that we do and consider personal does not potentially affect other persons and the environment, a freewheeling statement of personal freedom is dangerous. For the same reasons that it was unwise to shackle the government between 1890 and 1937 so that it was unable to deal with complex economic problems, it would be foolhardy now to adopt a constitutional framework which might inhibit an attempt to deal with complex environmental and social problems. We subscribe to the contention that the police power is inherently limited but we are wary to overemphasize the nature of this limitation.
127 Pub. L. No. 91-513 (Oct. 27, 1970).
128 The medical and sociological conclusions used in the following discussion are
examined in depth and documented in pt Viii, supra.
129 See articles cited at notes 109, 118 supra.
130 See note 126 supra.
131 States that have upheld helmet laws have attempted to do so on an "other-regarding" rationale. 'We believe that such a justification is absurd. Unlike goggle requirements, helmet laws do not increase the motorcyclist's ability to maintain lookout and control. To the contrary, helmets tend to curtail hearing, peripheral vision and comfort. Feeling that persons should be protected whether they care to be or not, courts have fabricated very tenuous arguments to justify these laws.
It does not tax the intellect to comprehend that loose stones on the highway kicked up by passing vehicles, or fallen objects such as windblown tree branches, against which the operator of a closed vehicle has some protection, could so affect the operator of a motor cycle as to cause him momentarily to lose control and thus become a menace to other vehicles on the highway.
State ex rel. Colvin v. Lombardi, 241 A.2d 625, 627 (R..I. 1968). Other courts have not attempted to raise hypotheticals but have merely stated that the law "bears a real and substantial relation to the public health and general welfare and is thus a valid exercise of the police power." Commonwealth v. Howie, 354 Mass. 769, 770, 238 N.E.2d 373, 374, cert. denied, 393 US. 999 (1968). So too would laws requiring citizens to brush their teeth three times daily.
32 See text at and following notes 59-71 supra.
133 SIR P. DEVLIN, Tan ENFORCEMENT OF Moasi.s 9-13 (1965).
134 In H. L. A. Hart's debate with Lord Devlin on this general question, the specific
issue being the defensibility of homosexuality laws, we think Hart was victorious. See H.L.A. HART, THE MORALITY OF THE CRIMINAL LAW (1965); Hart, Social Solidarity and the Enforcement of Morality, 35 U. Cm. L. REV. 1 (1967).