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Smoke Signals: What to Make of Marijuana Liberalization (I-CONnect Column)

James Fowkes, University of Münster Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Another standard liberal progressive issue is on an upward trajectory around the world.

I’ve written before here about same-sex marriage’s successful year in 2017 – in which context we also should note the timely demise of Naz in the Indian Supreme Court this month[1] – and others have written more recently here about trends to liberalize abortion rules in several Latin American states.[2] To these small pieces of the present global puzzle, we might add another item that, while probably not as defining or important to progressives as either of these issues, still features on many liberal laundry lists: marijuana liberalization.

Ten years ago, a liberalizing legal trend on marijuana was a matter for a few outliers: the Netherlands, Colombia, a couple of recent movers like Belgium and Chile.

Since then, by my rough and partly wikipedic count, formally legal liberalizing trends on the issue have taken place in about 25 countries, plus some states and territories in Australia, India, Turkey and the US. A substantial part of that trend falls into the last two or three years. Conversely, I don’t see much evidence of a counter-balancing toughening elsewhere (in contrast to the simultaneous for and against legal developments on same-sex marriage).[3]

Right now, we’re in the middle of a little legalization micro-trend. The Georgian Constitutional Court invalidated criminal punishment for consumption last November, and fines this July.[4] The South African Constitutional Court made private personal cultivation and consumption legal this month.[5] Canada’s legalization enters into force next month, the  second general legalization (as opposed to decriminalization) after Uruguay’s in 2013.[6]

So a traditional liberal/progressive/leftist constitutional issue is posting some strong numbers at a time many describe as a crisis for those things. What should we make of this?

The trend comes with several provisos, if we’re looking at it for information about the broader crisis narrative, but they have an interesting flipside.

The most obvious proviso is that support for liberalizing marijuana regulation does not necessarily mean support for, say, pluralist identity politics or libertarian views on personal choice. For example, economics was likely paramount in the decisions to license production of medical marijuana six months ago in Zimbabwe and a year ago in Lesotho, where it has long been the country’s top cash crop. Marijuana regulation is often about the best use of police time and other practical criminal enforcement issues, a generation after the heyday of the war on drugs. And among the list of liberalizing countries are some that friends of liberal constitutionalism would currently treat as areas of real concern. Poland under the PiS is one of the states that has lifted restrictions on medical use; the current Israeli Knesset has given its unanimous support to a decriminalization statute, due to come into force in 2019.[7]

It’s also true that the greatest part of the liberalizing trend to date is about medical usage only, and that might matter. We probably don’t think it’s coincidental, for instance, that political alignment is a pretty good proxy for the stance of US states on the issue (with idiosyncratic exceptions, like Alaska). Nine US states have taken liberalizing steps on the issue on or since Trump’s election day: all the ones in states he won have been confined to medical legalization, and all the ones in Clinton states have been about broader usage.[8]

But if we should not confuse a medical trend with a recreational or cultural-religious one, we should not see them as necessarily separate either.[9] Social recognition of many issues is an incremental business where first steps, like medical legalization, can reduce suspicion and stigma and increase awareness, data and debate. Given the difficulty of policing medical use, medical legalization can also be a fig leaf for tacit general liberalization. If we think along these lines, a trend like the US one might only suggest that more conservative jurisdictions are moving more slowly, not that they’re heading somewhere different.

And perhaps most interesting is the flipside to all these provisos reasonably reminding us that marijuana liberalization might not be a sign of broader allegiance to progressive causes or a generously rights-based liberal constitutionalism.

The flipside is that, apparently, in a growing list of countries, with growing frequency over the last ten years, it’s become the case that you don’t have to be a card-carrying progressive to support marijuana liberalization. The provisos, in other words, are not encouraging if you’re looking anxiously for signs of that broader allegiance. But they’re much more encouraging if you’re looking for signs of a consolidating acceptance, a new social normal on this long-standing issue, that is apparently becoming less dependent on political allegiance.

Mark Tushnet, writing here a few weeks ago, wondered if, instead of crisis or a collapse, ‘what we’re seeing is a redefinition of many components of constitutional democracy.’[10] He was thinking there primarily of changes that progressives don’t necessarily welcome.

But the recent trend on marijuana supports his broader point in reminding us that the trend can be a more complex. Among the realignments of traditional right-left points of conflict might also be results liberals and progressives might find more congenial, representing causes for which many have long fought or felt support, and whose liberalizing trend in the last decade therefore represents an achievement. It’s hardly a battle won – it’s an early, often qualified trend, from about an eighth of the world’s countries. But perhaps there is a sense in which it is a battle whose time is passing. That the new times are bringing new battles progressives and liberals are finding more challenging should not prevent us from marking what is happening to this older one, from remembering the challenges it itself only recently used to display, and from trying to weave it into our efforts to understand our own complex present.

Suggested citation: James Fowkes, Smoke Signals: What to Make of Marijuana Liberalization, Int’l J. Const. L. Blog, Oct. 2, 2018, available at: http://www.iconnectblog.com/2018/10/smoke-signals-what-to-make-of-marijuana-liberalization-i-connect-column/

[1] James Fowkes, ‘Crisis and its Opposite: A Reminiscence of Same-Sex Marriage’s Most Successful Year’, 31 January 2018, http://www.iconnectblog.com/2018/01/crisis-and-its-opposite-a-reminiscence-of-same-sex-marriages-most-successful-year-i-connect-column/; on the overturning of Naz in Navtej Singh Johar v Union of India, Writ Petition (Crl.) No. 76 of 2016 (6 September 2018), see here Subhankar Dam, ‘The Science of Homosexuality Does Not Matter, Says the Indian Supreme Court in its Historic Navtej Johar Decision’, 20 September 2018, http://www.iconnectblog.com/2018/09/the-science-of-homosexuality-does-not-matter-says-the-indian-supreme-court-in-its-historic-navtej-johor-decision/.

[2] Most recently, and referring back, Juliano Zaiden Benvindo, ‘Constitutional Dyssynchrony and the Debate over Abortion in Latin America’, 28 August 2018, http://www.iconnectblog.com/2018/08/constitutional-dyssynchrony-and-the-debate-over-abortion-in-latin-america/

[3] By my fairly rough reckoning, national jurisdictions with recent, formally legal, and liberalizing trends of some kind include Argentina, Austria, Belize, Canada, Croatia, Czech Republic, Ecuador, Finland, France, Georgia, Germany, Greece, Israel, Jamaica, Lesotho, Luxembourg, Malta, Mexico, Moldova, Poland, Romania, San Marino, Slovenia, South Africa, Switzerland, Uruguay and Zimbabwe.

[4] Reliable English translation of either judgment is not yet to my knowledge available, but for details see e.g. ‘Constitutional Court outlaws all punishment for cannabis consumption in Georgia’ OC Media, 30 July 2018; ‘Georgian Court Abolishes Fines for Marijuana Consumption’ Radio Free Europe, 30 July 2018; Thea Morrison, ‘Marijuana Legalization – Constitutional Court Explains’ Georgia Today, 13 August 2018.

[5] Minister of Justice and Constitutional Development v Prince [2018] ZACC 30 (18 September 2018).

[6] For details, see e.g. Jen Skerrit, ‘Why the World is Watching Canada’s Pot Legalization’, Bloomberg, 6 September 2018.

[7] See e.g. Jon Sharman, ‘Poland legalizes medical cannabis’, Independent, 4 November 2017; David Rosenberg, ‘Israel moves towards decriminalizing marijuana with Knesset vote’, Israel National News, 3 September 2018

[8] Compare developments from November 2016 onwards in Arkansas, Florida and North Dakota with those in California, Maine, Massachusetts, Nevada, New Hampshire and Vermont.

[9] See e.g. the careful discussion in Beau Kilmer & Robert J. MacCoun, ‘How Medical Marijuana Smoothed the Transition to Marijuana Legalization in the United States’ 13 Annual Review of Law and Social Science 181 (2017).

[10] Mark Tushnet, ‘Are Constitutional Democracies Really in Crisis?, 11 September 2018, http://www.iconnectblog.com/2018/09/are-constitutional-democracies-really-in-crisis/.

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Published on October 2, 2018
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