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Abstract

This article is written to help clarify the full range of understanding Obama would bring to a second term.

Specifically, I defend two related, contested theses. My core thesis, to which this article is primarily devoted, is a jurisprudential claim: contrary to state and lower federal court rulings, marijuana prohibition is subject to strict judicial scrutiny under leading relevant U.S. Supreme Court jurisprudence. I support this thesis primarily by showing that under the Fourteenth Amendment, bodily autonomy—i.e., the control over the borders and contents of one’s body burdened by laws like marijuana prohibition—is a fundamental right, and that the Court has thus established a presumption in its favor, especially for adults in the home. I then reinforce this thesis with three further arguments: (1) marijuana prohibition violates “justice as regularity,” (2) marijuana prohibition satisfies the “suspect class” trigger of strict scrutiny, and (3) bodily autonomy is closely analogous to the fundamental right of free speech. In sum, I argue that all roads of constitutional analysis lead to strict scrutiny of marijuana prohibition.

My second thesis, resting largely on the first, is a policy claim: if reelected, Obama will be inclined, and ought, to urge Congress to end federal marijuana prohibition, letting States go their own way within federal guidelines. As President, he knows that if he is convinced, on both policy and constitutional grounds, that the law must be changed, he need not wait for the Court to act—or more accurately, react. Especially if the current pace of state marijuana law reform continues through 2012, Obama’s recommendation will have broad support by the time he delivers his 2013 State of the Union address.

An application of strict scrutiny to marijuana prohibition is the subject of another article. Here I simply show that the President has ample reason under well-settled law to conclude that this prohibition is properly subject to that high standard. It may be that prohibition of cocaine, heroin and methamphetamine could survive strict scrutiny. These too are the subjects of other articles. Obama takes the rule of law seriously, however, and he would have grave doubts that marijuana prohibition could pass an honest application of strict scrutiny, in turn prompting him to urge Congress to end this costly war.

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