Argentina Supreme Court Tosses Law Prohibiting Personal Marijuana Possession

By Jeralyn, Section Foreign Affairs
Posted on Thu Aug 27, 2009 at 05:03:35 PM EST
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Argentina's Supreme Court has ruled a law prohibiting adults from possessing small quantities of marijuana is unconstitutional.

The Court unanimously determined that pot possession is private behavior and does not "constitute a clear danger" to others. The ruling strikes down the government's longstanding anti-marijuana law, which allowed for minor pot offenders to be sentenced for up to two years in prison.

"Each individual adult is responsible for making decisions freely about their desired lifestyle without state interference," the Court determined. "Private conduct is allowed unless it constitutes a real danger or causes damage to property or the rights of others."

The rationale behind the decision: "the government should go after major traffickers and provide treatment instead of jail for consumers of marijuana." Last week, Mexico's law decriminalizing possession of very small quantities of drugs, from pot to heroin, went into effect.

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Argentina Supreme Court Tosses Law Prohibiting Personal Marijuana Possession | 45 comments (45 topical)

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At the rate this is going (5.00 / 2) (#1)
by scribe on Thu Aug 27, 2009 at 05:05:04 PM EST

by this time next year the US will be the only "Civilized" country still outlawing pot.

But, then again, we're also one of the few "civilized" countries which executes people. So I guess I won't be surprised.

legislating from the bench? (none / 0) (#2)
by diogenes on Thu Aug 27, 2009 at 05:06:53 PM EST

I don't know Argentine law, but isn't this something that legislatures should be deciding?

the court said the law (none / 0) (#3)
by Jeralyn on Thu Aug 27, 2009 at 05:10:48 PM EST

violated the country's constitution.


It very well may (none / 0) (#6)
by Big Tent Democrat on Thu Aug 27, 2009 at 05:38:53 PM EST

But it would be improper for a US court to behave in this fashion imo.


what do you mean? (none / 0) (#11)
by Jeralyn on Fri Aug 28, 2009 at 12:22:41 AM EST

Court's pass on the constitutionality of statutes all the time, it's part of the system of checks and balances. What's the difference between saying a law is unconstitutionally vague or an impermissible infringement on free speech or association and this?

Courts here decide whether a law violates the 8th amendment prohibition against cruel and unusual punishment by considering whether it runs contrary to the evolving standards of decency in a civilized society. How is this different?


: They pass on it based on (none / 0) (#28)
by Big Tent Democrat on Fri Aug 28, 2009 at 09:02:22 AM EST

an application of the Constitution.
For example, in the Michigan case you cite to above, the constitutional provision applied was the cruel and unusual provision of the 8th Amendment.
In the Argentine example written about in this post, the Argentine court is second guessing the POLICY decisions of the Argentine legislature, not deciding whether it complies with the Argentine constitution. At least as you describe it.
That is anathema to our American constitutional system.

Interesting... (none / 0) (#19)
by kdog on Fri Aug 28, 2009 at 06:36:42 AM EST

reason, sanity, and plain old common sense improper for a US Court? That explains a lot.


Int erms of constitutional law (none / 0) (#50)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:39:41 AM EST

The purpose of the provision of the Constitution in question is the first principle, not your or their "common sense."


: I hear ya... (none / 0) (#53)
by kdog on Fri Aug 28, 2009 at 11:44:23 AM EST

just poking some fun at how you brainiac lawyers can tie your minds in knots sometimes:)

No (none / 0) (#27)
by Big Tent Democrat on Fri Aug 28, 2009 at 09:00:17 AM EST

My theory of constitutional interpretation has been set out in full in a number of posts.

What the Argentinian court did was inconsistent with my view of our American constitutional system.

Let me give you an example - suppose instead the Argentine court had applied a different policy conclusion - that in fact that Argentine legislature had been much too lenient with marijuana users who deserve instead minimum sentences of 10 years.

Would you then be so happy to see the court making policy?

A judicial philosophy can not be based on the results achieved. It disrespects democracy.


Hmm, not sure I agree (none / 0) (#29)
by andgarden on Fri Aug 28, 2009 at 09:14:25 AM EST

I could easily imagine claiming the right to use marijuana based on the 14th amendment. I'm pretty sure it's a loser in the current Court, but I would personally buy it as a substantive due process question.


That's not what is described (none / 0) (#30)
by Big Tent Democrat on Fri Aug 28, 2009 at 10:21:56 AM EST

Please reread what Jeralyn cites. It SHOULD give chills to any progressive/liberal who believes in government.

In other words (none / 0) (#31)
by Big Tent Democrat on Fri Aug 28, 2009 at 10:23:58 AM EST

""Each individual adult is responsible for making decisions freely about their desired lifestyle without state interference," the Court determined. "Private conduct is allowed unless it constitutes a real danger or causes damage to property or the rights of others."

this is libertarianism run amok. I reject it as policy. But more than that, it evokes in a negative fashion Holmes admonition about Herbert Spenser and the Constitution.

I am always amazed at how blind people can be when they get the result they want.


Ach, (none / 0) (#32)
by andgarden on Fri Aug 28, 2009 at 10:47:59 AM EST

I believe in the protection of unenumerated personal liberty rights. And that judges have to have the discretion to discover new ones. What do you believe the 14th Amendment offers shelter for?


BTW, my personal philosophy (none / 0) (#33)
by andgarden on Fri Aug 28, 2009 at 10:56:27 AM EST

is pretty well captured by Souter in Glucksberg.


: Souter would NEVER (none / 0) (#35)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:07:02 AM EST

write what you are endorsing here.
NEVER.

You agree with the statement? (none / 0) (#34)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:06:42 AM EST

Well, then your philosophy is not that of a New Deal Liberal Democrat, it is that of pure libertarian.


Not really (none / 0) (#36)
by andgarden on Fri Aug 28, 2009 at 11:15:46 AM EST

I'm intensely skeptical of claimed economic rights, and I'm open to considering policy reasons why claimed personal liberty rights shouldn't be accepted.

But I do believe that the Supreme Court has to have to power to overturn legislation that interferes with personal liberties, very much in line with the process Souter describes.


Remind me (none / 0) (#37)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:20:46 AM EST

How did Souter vote in Raisch?


From Raisch (none / 0) (#39)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:24:35 AM EST

"Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion.


And as for that point (none / 0) (#41)
by andgarden on Fri Aug 28, 2009 at 11:26:22 AM EST

It's no comfort to a "discrete and insular minority" that Congress might eventually hear your cause.


Indeed (none / 0) (#43)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:28:14 AM EST

Marijuana use is certainly not what Carolene Products was talking about.


I am not so sure (none / 0) (#45)
by andgarden on Fri Aug 28, 2009 at 11:31:57 AM EST

That's because (none / 0) (#47)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:36:06 AM EST

you are applying results oriented reasoning.

You like the result the Argentine court reached therefore it is sound for American constitutional thinking.

Conservatives do it too.

Legal realism is not confined to judges.


: I am fully upfront about that (none / 0) (#51)
by andgarden on Fri Aug 28, 2009 at 11:40:36 AM EST

That's the whole point of unenumerated rights. I have to use my judgement to determine what I think should be a right. The standard is higher than it would be for Congress, but it's not impossibly high.

With the majority (none / 0) (#40)
by andgarden on Fri Aug 28, 2009 at 11:24:38 AM EST

But that's a commerce clause/regulation case, not a SDP case.


Read the opinion (none / 0) (#42)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:27:40 AM EST

I don't disagree with any of the analysis (none / 0) (#44)
by andgarden on Fri Aug 28, 2009 at 11:30:38 AM EST

Though I would probably have to partially dissent on part V (not the procedural aspect).


: Just so (none / 0) (#48)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:37:10 AM EST

Sort of like the folks who do not like Kelo.

Have to agree with this comment (none / 0) (#5)
by Big Tent Democrat on Thu Aug 27, 2009 at 05:38:06 PM EST

Of course, the Argentine system may call for legislation from the bench but a similar decision by our Supreme Court would be unconstitutional.


And who would tell our S.Ct. (none / 0) (#7)
by scribe on Thu Aug 27, 2009 at 06:17:52 PM EST

that they had acted unconstitutionally?


Why? (none / 0) (#12)
by Jeralyn on Fri Aug 28, 2009 at 12:32:56 AM EST

Our Supreme Court has decided whether a 1978 Michigan law requiring those convicted of possessing more than 650 grams of cocaine be sentenced to life without parole. ... violates the 8th Amendment. Unfortunately, the court ruled the wrong way: "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our nation's history," Justice Antonin Scalia said.

Had the court ruled the other way and tossed the law finding it unconscionable, it would have been just fine. As Justice White wrote in the dissent:

Robinson v. California, 370 U.S. 660 (1962), held for the first time that the Eighth Amendment was applicable to punishment imposed by state courts; it also held it to be cruel and unusual to impose even one day of imprisonment for the status of drug addiction, id., at 667.
The plurality opinion in Gregg, supra, at 173, observed that the Eighth Amendment's proscription of cruel and unusual punishment is an evolving concept and announced that punishment would violate the Amendment if it "involve[d] the unnecessary and wanton infliction of pain" or if it was "grossly out of proportion to the severity of the crime." Under this test, the death penalty was not cruel and unusual in all cases. Following Gregg, Coker v. Georgia, 433 U.S. 584, 592 (1977), held that the Amendment bars not only a barbaric punishment but also a punishment that is excessive, i. e., a punishment that "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime."

: Because the SCOTUS (5.00 / 1) (#26)
by Big Tent Democrat on Fri Aug 28, 2009 at 08:52:23 AM EST

was interpreting the 8th Amendment, not deciding policy form its own views on whether criminalizing marijuana was good policy.

: I forgot to cite the MI case (none / 0) (#13)
by Jeralyn on Fri Aug 28, 2009 at 12:34:29 AM EST

Its Harmelin v. MI, dissent here.

"does not constitute a clear danger" (none / 0) (#4)
by kdog on Thu Aug 27, 2009 at 05:11:27 PM EST

duh!

What a shame it takes a Supreme Court to say that, and it hasn't been common knowledge all along throughout the world.

Actually it is common knowledge, the law is uncommonly dumb. Good to see some countries wising up, but none have the stones to just call any and all use/possesion an inalienable right, and all sale a right subject to reasonable regulation.

Maybe someday.

Good stuff fellas.... (5.00 / 1) (#20)
by kdog on Fri Aug 28, 2009 at 06:38:47 AM EST

perceptive cat that Dickens.


Mornin' K (none / 0) (#17)
by jimakaPPJ on Fri Aug 28, 2009 at 06:17:18 AM EST

The bad news is you don't live in Argentina.

The good news is you don't live in Argentina.


Morning Sir... (5.00 / 0) (#22)
by kdog on Fri Aug 28, 2009 at 06:44:45 AM EST

yeah, we've got big lifestyle perks to go with petty tyrannies here in the land of the not nearly free enough...doesn't mean we can't learn a thing or two from some of the more recent consitutions in our hemisphere...I'm left to draw the conclusion that, in at least one example, the Argentine version is superior to ours. Or their current high court is stacked with superior interpreters of law than ours.


: My solutions (none / 0) (#54)
by jimakaPPJ on Fri Aug 28, 2009 at 07:51:58 PM EST

haven't changed. Legalize MJ, tax the doggy out of it and sell it like we do booze and nicotine... Practically everything else have our addicts register and get what they want for free at the nearest Pharmacy.. Speed, Date Rape being two obvious exceptions...

Interesting (none / 0) (#8)
by Steve M on Thu Aug 27, 2009 at 06:47:43 PM EST

but has anyone told Justice Kennedy?!

: Or the CIA? (none / 0) (#38)
by oculus on Fri Aug 28, 2009 at 11:23:13 AM EST

Like rocks in a pond (none / 0) (#23)
by SeeEmDee on Fri Aug 28, 2009 at 07:07:46 AM EST

The waves from the impact spread out to the shore...and then come back.

The DrugWar's been like that, with America throwing rocks while being heedless of the returning waves. Some of the the returning waves from the DrugWar have been the horrendous amount of carnage just south of the border and the ascension of anti-US Leftist regimes in Latin America (in no small part thanks to US anti-drug operations poisoning the locals).

latin American countries know that drug prohibition is the above-the-table excuse for US meddling in their internal affairs, and that Uncle is the biggest promoter of that drug prohibition, so what better way to tweak gringo interventionist noses than to pass laws that weaken the international drug 'control' efforts?

Probably best to reserve judgment on (none / 0) (#46)
by oculus on Fri Aug 28, 2009 at 11:35:07 AM EST

the court's decision unless and until it is available. Link in post doesn't include the opinion or reference to Argentina's constitution.

In therm so Argentine law (none / 0) (#49)
by Big Tent Democrat on Fri Aug 28, 2009 at 11:38:40 AM EST

Certainly. But Jeralyn's intent it seems to me is to analogize it to American constitutional questions.

I took exception to that analogy.


: This is the broad brush approach. (none / 0) (#52)
by oculus on Fri Aug 28, 2009 at 11:41:43 AM EST

MJ for all, anywhere, anytime.