When Mexico’s Supreme Court ruled last week that consuming marijuana was constitutionally legal, it left the world shocked and somewhat confused.
In a 4-1 vote announced Wednesday in Mexico City, the five-justice panel declared the personal recreational use of marijuana legal under the right of “free development of personality.” In the same paragraph, however, the Court cautioned that its groundbreaking decision applied only to the four plaintiffs who filed the case. It did not, in the Court’s words, “imply a general legalization.” In Mexico, cannabis is now legal–but only for four Mexican citizens.
The whole thing has left legalization advocates elated but puzzled.
It’s been especially difficult to sort through the ramifications of the case because it’s been nearly impossible to track down a copy of the ruling. Late last week officials at the top drug policy shops — Marijuana Policy Project, Drug Policy Alliance, and the London-based International Drug Policy Consortium (IDPC) — were scrambling to find and translate copies of the full 88-page decision.
By the end of the week, Leafly had located an original Spanish-language copy, which is available here. With a little rough translation, we’ve uploaded an English language version to Scribd and made it accessible to our readers.
It’s incredible reading, a stunning 88-page work of sense and logic that stands as a profound milestone in the drug war. Or rather, the winding down of the drug war. It’s the high court decision that American legalization advocates have been dreaming of since the early 1970s: A full legal appraisal of cannabis prohibition based upon scientific evidence, not moral argument and hollow cant. It’s a shame that it happened south of the border. And only applies to four people. But the words and reasoning put down on paper by Mexican Justice Arturo Zaldivar will no doubt stand as a resounding precedent in similar cases around the globe, and be recalled by history as one of the turning points toward freedom and sanity in the regulation of cannabis.
Read the translated court ruling below.
What Is the “Right of Personality Development”?
It’s a simple case. Four plaintiffs, Josefina Ricaño, Armando Santacruz, José Pablo Girault and Juan Francisco Torres Landa Ruffo, challenged the constitutionality of Mexico’s marijuana prohibition. They argued that the cannabis ban, codified under the country’s General Health Law, violated their right to “free development of personality.”
That sounds goofy on its face, but there’s solid legal ground here. The Mexican Constitution recognizes “rights of freedom” that establish a sphere of privacy and personal autonomy around the individual. Expressing opinions; moving unimpeded; freedom of association; the right to adopt a religion or choose a certain profession — these are the kinds of things which are protected.
Within that realm, Mexican law has developed a specialized doctrine known as the “right to free development of personality.” The word “personality” is an imperfect translation. In the U.S., we’d probably think of it as the development of individuality, or personal character. The choices involved in the expression of one’s individuality range from the trivial (the decision to take up hunting or horseback riding, for example) to the essential (undertaking sexual reassignment, or deciding to marry or divorce). Zaldivar quotes the Spanish constitutional scholar Luis Díez-Picazo: The doctrine of free development of personality involves “a radical rejection of the ever-present temptation of state paternalism, who think they know better than the people what is good for them and what they should do with their lives.” It’s a shield against the nanny state.
The plaintiffs’ argument, then, was no less radical. They declared that their recreational use of cannabis was a personal choice, one that played a role in defining their individual character and personality. Supreme Court Judge Arturo Zaldivar agreed.
The judge based his decision on the premise that the state didn’t have the right to interfere with the leisure or recreational choices of an individual. Those choices “may include, as in this case, the intake or consumption of substances that produce experiences that in some way ‘affect’ the thoughts, emotions, and/or feelings of the person,” Zaldivar wrote. “Mental experiences” are among the most personal and intimate, he added, so they must be covered under the right of free development of personality.
That right isn’t absolute, though. It exists in balance and conflict with other rights. Here Zaldivar could have been setting up the plaintiffs for a fall. Because the state had rights and obligations, too — and they directly conflicted with the whole “personality” scheme.
The Evidence Destroys the Foundations of Cannabis Prohibition
Lawyers for the state must have assumed their case was a slam dunk. Pot prohibition under the General Health Law, they argued, ensures the health of drug users and protects society from the harmful consequences of drug use. In this case, the right of free development of personality must be limited in order to protect health and public order.
Fair enough, said Justice Zaldivar. To resolve the clash of constitutional rights, he declared that he’d put cannabis prohibition to two tests: To see whether the ban was appropriate, and proportionate. In other words, was an absolute ban on cannabis use a right and reasonable response to the danger marijuana posed to the individual and society?
This probably didn’t shake the state’s lawyers. A lower court judge had dismissed the plaintiffs’ claims with little more than a cursory look at their evidence. Prohibition protects the public health, the district judge ruled; therefore, it’s constitutional.
Here’s where Zaldivar made a radical break with history. Since the late 1800s, scientific studies and official commissions have looked into marijuana’s health risks and generally found them to be far less harmful than previously assumed. The Indian Hemp Drugs Commission in the 1890s, the La Guardia study in the 1940s, the Shafer Commission in the 1970s — each went in expecting to find great harm, and found little. Each was, in turn, largely ignored by those in power.
“What is required is an evaluation of the empirical relationship between marijuana use and the damage to health or society,” wrote Zaldivar. “I will rely on the scientific literature that has addressed this issue.”
This is where the state’s case began to wobble. Zaldivar actually read the scientific evidence put forth by the plaintiffs, and what he found was a compilation of data that destroyed the foundations of cannabis prohibition.
The Long-Term Health Impact of Cannabis Is Deemed to Be “Not Serious”
After spelling out the temporary effects of cannabis, Zaldivar found that the long-term health damage caused by marijuana was “not serious.” The risks posed by cannabis use, he wrote, were far less than those presented by tobacco and alcohol.
What about addiction? That’s a legitimate concern, the judge found. Studies generally agreed that marijuana held a 9 to 10 percent addiction rate, but that dependency was “much less severe than opium or alcohol.”
Is it a gateway drug? Zaldivar found that studies had long debunked the theory.
Is marijuana an incitement to commit crime? On the contrary. Several studies, the judge noted, “indicate that marijuana inhibits impulses of aggression in the user.”
Drugged driving, the judge found, is a legitimate concern, but one best handled in the same way the state deals with drunk driving.
Zaldivar questioned the effectiveness of marijuana prohibition. It didn’t reduce the number of consumers, he wrote, nor did it diminished even the claimed harmful health effects.
In a final kneecapping of the state’s argument, Zaldivar pointed out that prohibition did not pass the test of appropriateness and proportionality. A complete ban was hardly the only way to regulate the use of marijuana. The state could regulate it like alcohol or tobacco, he wrote. Colorado and Washington State were showing that a state-regulated cannabis trade can succeed. The Netherlands and Uruguay also handled cannabis without resorting to the extreme measure of prohibition.
“The ban,” Zaldivar concluded, “constitutes an intervention in the free development of the personality because it involves interference with personal autonomy, which is protected by the Constitution.” By failing to prove that marijuana posed a legitimate threat to health and public order, the state lost its traditional trump card.
“The way a person wishes to recreate,” the high court wrote, “belongs to his most intimate and private sphere.”
Read in its entirety, the 88-page decision is a stunning example of logical argument. After an impartial look at the evidence, the Court could no longer justify Mexico’s ban on marijuana. Even then, though, the justices hedged their decision by applying it in the most limited way possible, to the four plaintiffs alone. They’ve given Mexican legislators some time and space to create a system of federally legalized and regulated marijuana.
If they don’t, there will surely be more cases to follow. And next time Arturo Zaldivar may not limit his ruling to four bold and history-shaking individuals.
Here’s the original Spanish language version of Mexico’s Supreme Court ruling:
Update (11/10/2015): This article has been amended to include the names of the four plaintiffs in the case.