Saturday, December 26, 2009

In the Dark Depths of Winter

The winter solstice is here: the day on which the night stops growing and the days start lengthening with their promise of eventual spring. From the beginning of history, cultures in the European tradition have marked this date with festivals of hope and renewal. The Romans had their Saturnalia that the Christians turned into their Christmas. The heathens and Druids – and the modern Wiccans – celebrate this date with lighted fir trees and mistletoe. They all looked forward to a growing light and a hopeful future.

Those drug law reformers who have found themselves in the deepest chill of winter since the early 1980s may finally passed their solstice and find the warming rays of dawn breaking early. The thaw seems to be on the horizon.

The first ray of light was California’s adoption of a medical marijuana referendum in the mid-90s, now followed by thirteen other states. Two more states have passed medical marijuana bills, only to see them vetoed by recalcitrant governors. At least six states now have bills under active consideration.

By 2004, California had seen the need to regulate a system for the medical marijuana the people had mandated. The legislature created laws governing marijuana dispensaries. In Los Angeles today medical marijuana dispensaries outnumber McDonalds or Starbucks. Three other states – Colorado, New Mexico, and Michigan also have dispensaries operating, and Rhode Island and Maine have passed a law enabling them, although the first one is yet to open in either state. At least one governor has vetoed a dispensary bill. Their rate of growth in Colorado seems to be following that in California.

Public opinion has followed the spread of medical marijuana. By 2005, opinion polls nationwide had swung so that medical use was favored by a majority of voters. The favorable opinion has continued to grow since then. Michigan voters in 2008 approved medical marijuana by 62%.

Opinion also is swinging toward legalizing the possession of marijuana even without medical need. Surveys now consistently show around 45% in favor of legalization; and in California, where legalization will probably appear on the 2010 ballot, 56% of the voters are in favor.

In fact, state action on legalization is the hot topic of conversation. In addition to the referendum petition, the California legislature has a legalization bill before it this session. A similar bill, but with more sponsors, has also been filed in Oregon. Passage of either of these bills is unlikely, but they have generated editorial page conversations across the country. This topic was unheard of just a few years ago, and now it is discussed as a routine matter, with a surprising part of the comments being favorable.

Massachusetts is a bit of a wild card when it comes to legalization. It decriminalized possession of less than one ounce through a 2008 referendum. All of the other states that have decriminalized did so in the mid- to late-1970s, so one has trouble deciding whether Massachusetts is showing a liberalized attitude tending toward legalization or a retrograde move to the past.

But the real crack in the cold grip of Drug War winter is happening in Washington, D.C. Both the executive and the legislature seem to be loosening their death-holds on prohibition.

The executive branch has moved on three fronts. Shortly after his appointment, the new Attorney-General announced that the United States would abstain from prosecuting those acting in compliance with state medical marijuana laws and followed that with a formal memorandum so instructing U.S. Attorneys. So far, the USAs seem to be acting in compliance with that memorandum. The new head of ONDCP quickly announced that the concept of “War on Drugs” would no longer be used. So far, he has refused to go further in public, but his new assistant director has a professional background in treatment and rehabilitation, not in enforcement. The State Department has also lowered the temperature of discourse and seems to be looking at international alternatives to the failed source suppression policies.

The administration’s main failure has been its neglect in filling judicial vacancies and replacing U.S. Attorneys. However, Obama’s reluctance to face Senatorial filibuster battles over these lower level appointments is understandable.

Congressional action this year has been the most surprising. With no fanfare and little dissent, both houses approved funding for needle exchange programs as part of the pending health care bill and removed the legislative obstacles to medical marijuana in the District of Columbia. Both houses have pending bills to establish National Commissions, the Senate bill covering penal law and policy, including drugs; and the House bill aimed specifically at drug policy. In addition, bills have been filed in the House to decriminalize possession of personal amounts of marijuana and to recognize state medical marijuana laws. Some of this activity should result in some kind of more progressive drug legislation in this session.

The solstice of the long winter of drug prohibition has passed. Light is creeping back into some of the dark corners of oppression. Soon spring will be here. It is time to celebrate.

Happy holidays!

Saturday, December 19, 2009

Drug-Free Communities?

One of the callers to my television show this week asked what those people like him who wanted to live in drug-free communities should do. I brushed him off by pointing out that every known human society (except for some Arctic groups living in extremely impoverished environments) has used some kind of intoxicant. But then as I was driving home and passed a municipal sign declaring the town to be a “drug- and gun-free zone”, I started wondering what these people mean by “drug-free community”.

They can’t mean it literally. An inspection of their houses would almost certainly turn up aspirin or acetaminophen and some kind of cold or sinus remedy. Most of the houses would have at least one bottle of prescription drugs. The kitchens would have (unless the residents were members of the Latter Day Saints) coffee, tea, chocolate, and cola drinks. Their children are vaccinated and most of them got flu shots this year. When these drug protesters go to the dentist, they are probably grateful for his use of nitrous oxide and the follow-up prescription for Vicodin. The children most likely attend schools where almost ten per cent of the students take stimulants (including the methamphetamine the DEA scares everyone with) to treat some Attention Spectrum Disorder. Their world is far from drug-free.

Perhaps they mean free from dangerous drugs. But that can’t be true either. All of the communities from which my call might likely have come allow the sale of alcoholic beverages in restaurants, clubs, and bars; and cigarettes, beer and wine are sold in their grocery stores and drug stores. Alcohol and tobacco are by far the most dangerous drugs in our society. (And I say “tobacco” rather than “nicotine” because the smoke inhaled from burning the whole plant is much more problematic than is the nicotine it contains.) Tobacco-related illnesses cause over 400,000 deaths each year. Alcohol only kills about 150,000 by alcohol-related illnesses and acute intoxication each year, but it manages to score another 15,000 or so deaths in alcohol-caused car wrecks. These drunk-driving deaths each year total more than the deaths resulting from all of the illegal drugs combined. Alcohol is also the only drug whose consumption has been causally connected to any violent crimes. Aspirin and acetaminophen can’t even reach 1 % of the number of alcohol deaths, and yet they kill more than any of the so-called dangerous drugs. Marijuana has never been shown to have caused a single death, and Switzerland has not had an opiate overdose death in the ten years that the Swiss have been giving heroin to addicts.

Perhaps they are making the lesser claim that they are keeping illegal drugs out of their community. But that claim doesn’t stand up to scrutiny. Making drugs illegal does not make them unavailable. It just makes them more expensive and less pure and makes society more dangerous and corrupt. Stimulants (amphetamines and Ritalin) are now used, legally and illegally, by at least as many people as they were in their legal heydays of the 1960s. The percentage of the population addicted to opioids today is greater than it was before passage of the Harrison Act in 1914. Millions of doses of MDMA – outlawed by a panicked congress in 1986 – are used in the U.S. each week. And marijuana? The government claimed that fewer than 100,000 people used marijuana when it asked congress to outlaw it in 1937. Now the government claims that over 100,000,000 people have used marijuana and that almost 15 million use it at least once a month. These numbers add up to a lot of drugs being used in communities that claim to have banned them.

These statements of “drug-free communities”, whether made as claims of fact or as aspirations for the future, are doomed to be false. The problem is that they all use the term “drug” to refer to harmful chemicals with biological effect. They seem to be creating a dichotomy between drugs and medicines.

The chemicals themselves are neither good nor bad: they just are. Some can be used beneficially; some (often the same ones) can be used detrimentally. The methamphetamine the DEA has been scaring people with for years is the same Methadrine that is prescribed for kids with ADHD and substantially the same as the Dexedrine the Air Force gives to its combat air crews for increased performance. One recent survey showed that twenty per cent of working scientists used these or similar “brain boosters” to improve their work.

Medical practice would be severely hampered without morphine and other opioids to control pain. But heroin (diacetyl morphine) is converted back to morphine in the body. In fact, long-term experienced addicts cannot distinguish between injections of these two drugs. Heroin can be used as a pain killer in some patients who are allergic to morphine.

In addition to heroin, the DEA has many other “evil” drugs in Schedule I, classified as having no significant medical use. Of these, marijuana, LSD, MDMA (ecstasy), mescaline (peyote), and psilocybin (magic mushrooms), among others, have well-documented histories of medical research and use.

Both the drug-free community wishers and the law because they focus on the chemicals instead of the users. The first American drug laws – the Pure Food and Drug Act of 1906 and the Harrison Narcotics Tax Act of 1914 – were reasonably effective in decreasing both drug dependency and harms resulting from drug use. But when alcohol was prohibited in 1920, the emphasis shifted from the users to the chemicals themselves; and the heroin acts of the 1920s started the country down the disastrous road of drug prohibition.

Now is the time to recover from that disastrous, vicious, and corrupting attempt to create drug-free communities, and instead start looking at the users. Now is the time to create communities free from the harms of irresponsible drug users.

Thursday, December 10, 2009

Where Are the Bodies?

Where Are the Bodies?

For more than forty years Drug Warriors have argued that smoking cigarettes causes lung cancer and that since marijuana is also smoked, it must cause cancer too. The most effective response to that argument has been to ask: “Where are the bodies?” because there are no bodies. Thirty-five years of documented heavy marijuana smoking by millions have not produced a single case of lung cancer that doctors are willing to attribute to marijuana. That statistic conclusively rebuts their argument.

Another Drug Warrior argument is now ripe for a “Where are the bodies?” rebuttal.

Prohibition zealots, from the very beginning have argued that drugs must be made illegal because drug use is associated with increased crime. The more rabid even repeat the 1930s “Reefer Madness” idea that a single puff on a joint will send a nice, innocent young man off on a rampage of rape and murder with a wild glint in his eye. The less extreme still show up at city council meetings and write letters to the editor protesting medical marijuana dispensaries because they will increase crime in the area. They don’t seem clear about whether all marijuana users, including those who use it to combat illnesses, are criminals who will knock over a convenience store when they pick up their meds or whether marijuana itself is a crime magnet that, by its very presence attracts all the miscreants who learn of its location.

Enough hard data now exists to rebut this argument. It’s time to start looking for the bodies.

California now has had legal medical marijuana for over a decade and several years of open operation of marijuana dispensaries. Colorado, Oregon, and Michigan also allow dispensaries, although for shorter periods of time.

Almost all of those dispensaries operate in towns or cities that participate in the FBI’s Uniform Reports of Major Crimes. For even finer scale analysis, police reports in most towns and cities are either open to the public or available through some kind of open records request. These reports show every crime reported to the police and even the address at which it occurred.

In cities like Los Angeles, San Francisco, or Oakland, with large numbers of active dispensaries, longitudinal comparisons within the cities can be made. How was crime different in San Francisco in 1980-89 and 1999-2008? Comparing a decade before medical marijuana with one after it has been established should show whether it has affected either the rate of crimes or their locations. Los Angeles, like many cities, has followed New York in basing its police posting procedures on weekly statistical reviews of incident reports around the city. Those reports should be available and should provide a detailed picture of the relationship, if any between marijuana distribution and the incidence of crime.

Comparisons between cities could be even more telling. While Los Angeles and San Francisco have been liberal in their approach to medical marijuana, San Diego has resisted allowing any legal marijuana outlets of any kind. Comparing the crime report data between San Diego and the other two cities should be very revealing.

Other sources of data should be available as well. Numbers of court-ordered admissions to marijuana rehab programs is one statistic that should be available over an extended period of time. The number of marijuana-related DUIs should be publically available and is probably a surprisingly low total.

Local regulation of marijuana dispensaries is creating civil litigation in both California and Colorado. All of these public safety records should be obtainable through the discovery process, and their use as evidence would require the same kinds of statistical analysis discussed below.

These kinds of data are almost meaningless in their raw state. Intensive sophisticated statistical analysis is necessary to make them meaningful. That kind of analysis is normally done in universities. But certainly some sociology professor is looking for a tenure piece, and the data holds the potential for many Ph.D. dissertations. The mountain of numbers will provide meaningful employment for generations of graduate students. Universities are, as a rule, also experienced in open records access and are willing to fund the search for them.

Although this kind of detailed statistical analysis may take years, the where’s-the-body argument is useful now. The “Marijuana causes crime” argument belongs to the prohibitionists. Since they advance that argument, they also have the burden of proving it. And they cannot. Anytime that argument is advanced, the response should be: “What do the crime reports show?” One can point out that the police have the data and can provide the answers. A city council can be pushed to study their own records to determine the truth about crime and marijuana. They can be asked to delay repressive actions until the records are examined.

Health care has made fantastic advances by insisting on evidence-based medicine. Now is the time to insist on evidence-based laws as well. Facts are the sharpest tools in any reasonable argument. The facts are on the side of ending prohibition. It’s time to wield them vigorously.

Sunday, November 29, 2009

Mammograms, Drug Tests, and Bayes

Mammograms, Drug Tests, and Bayes

The nation has been bombarded with hysteria about the new recommendations for mammograms for the last week or so. The real concern behind the recommendations was the high incidence of false positive results and their costs to the people involved.

As I listened to the debates, I realized two things: first, no one had any idea about the numbers involved in the analysis of the problem; and second, the same mathematics are crucial in the debate over drug testing in schools and the work place.

The crucial problem in both issues is that of false positive results in the testing: a mammogram showing that a healthy woman has breast cancer or a drug test showing that an abstinent subject has used drugs.

That problem can only be analyzed through the application of a subtle and sophisticated branch of advanced mathematics known as Bayesean analysis, or conditional probability.

The issue, and why it is a problem, can be demonstrated through a simple example that uses nothing more complicated that addition, subtraction, and decimal arithmatic.

However, if anyone gets the urge to present this information to a school board, get a statistics or probability instructor from the local college to help you. Very few high school math or science teachers are familiar with it, and the chance of finding a school board member who knows anything about it is about the same as that of finding a penguin on Miami Beach.

 * * *

Assume that a drug test is to be given to 10,000 high school students. Before the test is given, two things are known:

1. The test is 95% accurate, or on the average, out of every 100 tests given, 5 of the results will be wrong. (Most of the available tests are advertised as 99% accurate, but that figure is derived from rating the test in carefully controlled laboratory situations with randomized samples. In real life, with poorly trained part-time administrators, poorly handled specimen cups, bad sanitation conditions, sloppy records, uncalibrated lab equipment, and out-of-date or impure reagents, almost all of them will perform at less than a 95% level).

2. Only 5% of the group to be tested will have used the drug in question. (In actuality, only marijuana use will have reached the 5% level -- and it presents other, different problems). No other illegal drug is use levels nearly that high.

Based on these assumptions, of the 10,000 people tested, 9,500 will be non-users and 500 will be drug users.

When the 500 drug users are tested, 5% of the test results, or 25, will be incorrect. The other 475 results will be correct. The result is:

475 true positives (drug users found to be drug users)

25 false negative (drug users found to be non-users).

These results, by themselves, are harmless and probably acceptable. But what happens when the test is administered to the non-users?

The 9,500 tests administered to non-users will also be right in 95% of the cases, or 9025 correct results. Wrong results will appear in 5% of the cases, or 475 cases. The results of testing the non-users are:

9025 true negative (non-users identified as non-users)

475 false positives (non-users identified as users).

Now combine the two sets of results:

475 true positives (drug users correctly identified as drug users)

475 false positives (non-users incorrectly identified as drug users).

In other words, if someone fails the drug test, she is just as likely to be a non-user as she is to have used drugs. This result is the same as that one would get by tossing a coin – and the coin toss costs less and doesn’t invade anyone’s privacy. Any test that can get a student kicked off the football team, forced into rehab, or even expelled from school should be more reliable than a coin toss.

The story of mammograms is more complex. The consequences of false negatives – undetected cancers – and of false positives – anxiety, more testing, or even surgery, chemotherapy, or radiation – are much more severe. The test itself is not a simple yes/no like the drug test and the reliability is much less than 95% and depends partially on the skill and experience of the examiner. I will have to leave the full explanation to a professional statistician in another forum.

Friday, November 20, 2009

Toward a More Civil Government

Toward a More Civil Government

For well over a decade the nation’s government has been scarred by acrimony, distrust, bitterness, and strident partisanship. The result has been a marked decrease in the quality of society. Something needs to be done to reconstruct civility. I have a idea…

What if all politicians – both candidates and holders of elective office at all levels – were required to spark a j and mellow out before any public appearance or meeting? No longer would speeches be interrupted by angry shouts of “You Lie!” At worst, there would be giggles and “Love ya, Bro.” The Capitol dining room could quit serving Senate Bean Soup and just put out bushel baskets of Kit Kats and every flavor of Doritos. Think of the difference in senators’ opening statements in committee hearings. They would still be long and rambling, but they would not be harsh, self-serving and untruthful.

The work would still get done. The pols don’t trouble themselves with the details anyway. All the work is done by staffers and attorneys, who would still have to stay sober during work hours. Committee meetings and debates would still be lively, but less rancorous. The risk would be that they could degenerate into food fights. Probably the Democrats should be limited to Ho-Hos and the Republicans to Twinkies so the television cameras could keep things straight. (I originally assigned the snacks arbitrarily, but if someone wants to assign symbolic values to them, that is The Reader’s choice.)

When I first broached this idea, one colleague objected on the grounds that susceptibility to marijuana is genetic and some people would not mellow out. But that’s actually another ground for insisting that candidates toke up in public. What better way is there to exclude congenital curmudgeons and eternal pessimists from positions in which their nay-saying can create major harms?

What is sauce for the congresscritter should probably be applied to those testifying in committee as well. The O.S.S. was testing weed as a truth drug as early as the 1940s. Anyone who has been there knows how hard it is to tell a convincing lie while wasted. Turning a witness on should be at least as effective as making them swear to tell the truth. The problem would be that the truth would be buried under an endless stream of babble. Imagine three wasted automotive executives trying to explain why they flew three private jets to Washington so that they could ask congress for money to help their broke companies.

If congress is mellow, so should be the broadcast political commentators who talk about them. A mellow Bill O’Reilly might make more sense, but the world may not be ready for a stoned Glen Beck. The Limburger could be more believable if grass were substituted for his Oxy. Who would be liable if a wacked Lou Dobbs tried a faint smile and his face shattered into a thousand granite shards? Keith Olberman? I suspect he is already following the program at least part of the time.

The rule would have to include Sunday morning talk shows – hosts, guests, and panelists. The schedule for these shows would have to be extended to accommodate the much more drawn out questions and answers, but they don’t have much competition in those time slots anyway. The panelists present a different problem. My mind boggles at even the idea of a giggling George Will. Perhaps if that frozen-in-place hair were a little mussed and that little bow tie somewhat askew (and who can tie one of those damn things anyway?), a real human might emerge from that bloodless automaton.

This kind of radical change could cause social and economic changes as well. Recent studies indicate that increased marijuana use is coupled with decreased alcohol use. If the Washington power class becomes a stoner caste, what will happen to their booze consumption – now at astronomical levels? Will the top-tier watering holes become taco stands? Will Jack Daniel have to ask for a federal subsidy to avoid bankruptcy? Will K Street become the world’s largest AA group?

If the plan works for the political side of government, perhaps it can also be applied to parts of the administration. The top administrators of the DEA and ONDCP need to be more familiar with the subject matter of their jobs if they are to do them well. As soon as they are confirmed, these top people should be put through a training program in which they experience recreation-level doses of at least the four most common drugs subject to their administration: marijuana, heroin, cocaine, and the amphetamines. These doses should probably be administered over the course of a month to avoid the shock that a more concentrated introduction would cause. These people don’t have the resiliency of teenagers any more.

The training for working DEA agents should be more intense, including at least some of the psychedelics. This training should help to weed out the inherently paranoid and overly suspicious, resulting in a more compassionate and cooperative force. One beneficial side effect could be substantial revenue to the government. Just imagine the earnings of that new reality tv show: “Narcs on Acid.”

Okay, you’re right. This is just a pipe dream. But I think I’ll hold on to the fantasy just a bit longer. As Axl Rose told us, when you’re high, “you never ever wanna come down, come, down, come do-ow-ow-own!

Saturday, November 14, 2009

Fig-Leaf Legalization

Fig-Leaf Legalization

In my last posting, I referred to California’s medical marijuana system as “fig-leaf legalization”. The more I think about it, the better that idea looks.

The idea, as pointed out in a recent issue of Fortune among other places, is that the limits and qualifications of the Californian medical marijuana program are so liberal that virtually anyone can qualify. The result is that the medical dispensaries are in fact nothing but retail marijuana outlets – pot shops.

Several factors contribute to this laissez faire operation.

The first is that the state law places no direct limitation on the medical conditions for which a doctor may recommend the use of marijuana. A doctor may recommend its use, not only for relief of chronic pain or adjunct therapy for cancer patients, but for minor conditions like headaches, mild insomnia, or even mild feelings of malaise. (In its first life as a legal medicine before 1937, two of the main uses of cannabis were for migraine headaches and PMS, two conditions for which newer drugs often provide insufficient relief.)

The second factor is that, in American law in general, only a doctor exercising his professional judgment in the treatment of a patient may determine what does or does not have medical value. Subject only to state licensing and disciplinary rules and malpractice laws, that doctor may recommend, dispense, or prescribe any substance or course of treatment he thinks will be of value to the patient. A small exception exists in the case of heroin, which the federal government persuaded many states to ban outright in the 1920s and 30s.

California doctors are now charging $150 for a consultation for a marijuana recommendation. The consultations usually last no more than ten minutes and rarely involve an actual physical examination. They have become a ready source of additional income for a large number of California doctors.

The third factor is that the federal government has no jurisdiction to determine the medical value, or its lack, of any substance. This limit on federal power has been recognized since the mid-1920s and was reaffirmed as recently as Gonzales v. Oregon. (2006) Three major federal statutes are concerned with the way in which drugs are marketed – The Food, Drug, and Cosmetics Act (as amended), which establishes the Food and Drug Administration, The Controlled Substances Act, which regulates the way in which scheduled drugs are marketed, and the Dietary Supplement Health and Education Act of 1994, which grants the FDA oversight of the marketing of herbal remedies and dietary supplements – but none of these authorize any federal agency to determine whether or not any substance has medicinal value.

Many think that the FDA “approves” new medicines, but it does not. The FDA, acting under the Interstate Commerce clause, prevents misleading or deceptive marketing of drugs by requiring that each drug bear an approved “label” [1] .

Once the drug is sold, the FDA has no control over how doctors use that drug. A doctor may then prescribe the drug for other diseases, a practice known as “off-label” uses. For instance, amphetamines are approved for the treatment of narcolepsy, a rare disease, but physicians prescribe them for attention spectrum disorders as well; and now some doctors are prescribing them for patients to use as “brain-boosters”.

The Dietary Supplement Act is also a marketing act, preventing deceptive or misleading marketing of supplements, vitamins, and herbal preparations. The distinction is that the FDA may intervene only after a product is marketed using methods that make unsubstantiated health claims.

Contrary to popular perception, the Controlled Substances Act is also a marketing control act, not one determining the medicinal value of any substance. It divides all drugs with psychoactive effects into two broad categories: Schedule I and Schedules II-V. The Drug Enforcement Administration establishes regulations for the ways in which doctors may prescribe drugs in Schedules II-V (duplicate forms, non-refillable, limits on amounts for each prescription, etc.), but it may not limit the uses for which a doctor may prescribe that drug.

Schedule I drugs seem to be an exception to the general scheme in that those drugs (including heroin, marijuana, MDMA, and most psychedelics) may not be manufactured, distributed, or possessed. However, a close reading of the statutory language reveals that Schedule I drugs are not defined by their medical effectiveness (reserved by the Constitution to the states), but by whether they have “currently accepted medical use in the United States.” In other words, the DEA is not to determine medical effectiveness, but is only allowed to conduct a survey as to whether the drug is currently used by doctors.

In the first rescheduling action (MDMA), the Administrative law Judge recommended placement on lower than Schedule I on the grounds that the drug was in fact used by doctors with the approval of reviewing peers. The Administrator refused to accept the petition and placed the drug in Schedule I. In that case and the two other cases decided by the Courts of Appeals that issue was not presented to the court and the courts made no finding on that definition. The Iowa Supreme Court, using this interpretation of equivalent language in the state law, has ordered the State Board of Pharmacy to reconsider the scheduling of marijuana. The first federal law suit based on this interpretation is now pending in the U.S. District Court in New Mexico. The result could be to force the federal government to follow the lead of the states.

If that legal interpretation controls, the federal government will have no legal force against state medical marijuana, and the AG’s decision not to prosecute compliant medical marijuana distributors suggests that it has also lost its moral and political backing.

One result is appearing that, at first sight, looks surprising, but is predictable in hindsight. With the risk premium for unlawful conduct removed from their cost structure, medical marijuana distributors are lowering their prices. Market rules apply here as they do elsewhere. Reports show some illegal street dealers lowering their prices by up to 20% in order to compete. Illegal dealers have inherently higher cost structures than do legal ones; the illegal dealers and distributors will be forced from the market. Al Capone cannot compete with Anheiser-Busch.

Colorado is rapidly following in California’s footsteps, and three other states have approved distribution systems. Legislative action on medical marijuana is heating up to unprecedented levels, with nation-wide popular support running over 70% in recent polls. Editorial support is also uniformly high.

Outright legalization of marijuana is still too frightening and too radical for many, and therefore probably politically impossible in the immediate future. Decriminalization has its fans and provides some relief for the consumer, but it does nothing to combat the violence, corruption, and harms of the black market; it may even strengthen them by increasing demand. Fig-leaf legalization, following in the steps of California and Colorado, may be an acceptable compromise. It furnishes an excuse to those whose morals may be offended by a pleasure-driven search for chemical happiness while also furnishing a loosely regulated market, avoiding the excesses and harms of full legalization. Paying a hundred dollars a year for a license from a doctor is a small price to pay for demolishing a major part of the War on Drugs.

[1]  The label is all of the text, and only that text, which the FDA has approved and which must be included when the drug is sold or advertised. The label must include at least one medical use for which the drug has been scientifically shown to be safe and effective. The label is actually several pages long and is presented as the package insert, which the pharmacist will give to you if you ask for it. It is also included in compendia like Physician’s Desk Reference.

Thursday, October 29, 2009

…but with a Whimper

…but with a Whimper

Many who have been advocating for drug law reform have visualized the War on Drugs ending in an Armageddon-like battle. We can see weeks of heated debate in both houses of congress with the media following and commenting like it was the super Bowl. We can visualize a signing ceremony in the East Room with Ethan Nadelman getting the souvenir pen and the Congressional Medal of Freedom being given posthumously to Brownie Mary. We can even dream of DEA and ONDCP officials shaking their cups on street corners as they ask for spare change.

But it’s beginning to look like we will win, but without the fireworks. The War on Drugs is ending, not with a bang, but with a whimper.

The Attorney-General’s memo to U. S. Attorneys this week shows the change in strategy. A-G Holder has directed the USAs not to initiate prosecutions involving state medical marijuana laws unless the cases involve more or more of a list of earmarks:

• unlawful possession or unlawful use of firearms;

• violence;

• sales to minors;

• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;

• amounts of marijuana inconsistent with purported compliance with state or local law;

• illegal possession or sale of other controlled substances; or

• ties to other criminal enterprises.

The important feature of this list is that, with a partial exception of the fourth element, all of the elements require a criminal act in addition to the mere distribution or possession of marijuana. The fourth – financial – element is too vague to serve as a defense for the decision to prosecute except for the inclusion of money laundering. And rest assured, the import of this list is the pressure it puts on USAs to justify any decisions to prosecute with evidence tied to this list.

Anyone who stays reasonably close to state law and who avoids state prosecution probably is safe from federal prosecution unless they adopt an outrageously expensive and public life style.

Many have remarked that, in California at least, medical marijuana has served as a fig leaf, disguising outright legalization. If true, that situation will probably expand to other states; Colorado is giving indications of going the same direction. With the feds ignoring California, the roadblocks are down.

California is beginning to like the taste of marijuana taxes and is getting hungry for more. Other states also face the same kinds of budget crunch.

Many California growers are committed to growing as a matter of principle, and not just for profit. As they have been able to act more publicly, their prices have come down and they have diverted sales from the criminal cartels, who are unwilling, and probably unable, to cut prices. Law enforcement will soon begin to see a resulting savings, and the people will see a decrease in violence and environmental damage.

In approximately fifteen years, fourteen states have enacted medical marijuana laws, either through referendum or legislation. New Hampshire came close this year, with a bill passing in the legislature, but when the governor vetoed it, the state senate failed by two votes to override the veto. Connecticut has twice passed similar legislation, only to have the governor veto it each time.

Iowa presents a curious situation. The Iowa Supreme Court has ordered the Iowa Pharmacy Board to reexamine the classification of marijuana based on medical use in the United States considered as a whole. Testimony at the Board’s hearings, both medical and lay, seems to be overwhelmingly in favor of rescheduling.

This year, Wisconsin, Illinois, Ohio, Pennsylvania, New Jersey, New York, and Massachusetts all have bills pending. All three candidates for governor in New Jersey have pledged to sign the bill if the legislature passes it. In Massachusetts, which decriminalized possession of less than one ounce of marijuana by referendum last year, the latest poll shows 81% of the voters favor medical marijuana. Depending on the results of these legislative attempts, Texas could remain the only state with large population refusing to recognize medical use of marijuana.

Congress is also beginning to take notice. For several years, nation-wide polls have shown more than 70% of the population favoring recognition of medical marijuana. This term four bills have been filed and are awaiting committee action. Three of which would make federal law recognize state medical marijuana laws and the fourth would decriminalize possession of small amounts under federal law. If the easy passage of expansion of the federal hate crime law to cover sexual orientation and the lack of reaction against it are any indication, congress may be more comfortable with changes in this other morally sensitive area as well.

A reasonable prediction is that the end of the current legislative and congressional sessions will have medical use of marijuana nationwide accepted and legal. Details will have to be cleaned up as states with no current legislative sessions come into conformity, but those actions should be somewhat routine.

As California, and to some extent Colorado, is revealing, medical use can lead to more commonplace use. The first dominos have toppled, and the rest of the line is now shaky.

Saturday, October 17, 2009

All Drug Use is Self-medication -- Not

All Drug Use is Self-medication -- Not

Anyone following the drug law reform debate for very long will run into the slogan: “All drug use is self-medication.” The problem is that not only is this claim not supported by fact, it also works against several more legitimate claims.

The first issue is to look at the basis of this assertion. I have found no researcher who has claimed this proposition as the result of his studies. One generally accepted proposition is that a significant number of those with drug dependencies or who abuse drugs also have some personality, mood, or character disorder that causes them some degree of discomfort and for which they seek, consciously or unconsciously, some form of relief. (I use this weasely “significant number” as an admission that the data do not tell us whether that number is ten per cent, ninety per cent, or somewhere in between) Extending this proposition to the assertion that all drug use is an attempt to alleviate some mental disorder is unwarranted.

If this exaggeration stood alone, it could be shrugged off as the kind of rhetorical over breadth we all commit from time to time. But this concept has the effect of delegitimizing several other valid claims for recognition.

Drug use as a religious exercise is one of the claims competing against this self-medication concept. Religious use of psychoactive substances dates back to pre-history. Modern claimants use a variety of substances. Federal law recognizes the use of peyote by the Native American Church and yagé, or ayahuasca, by O Centro Espirita Beneficiente Unido do Vegetal and Santo Daime. Even the old Volstead Act allowed Christians and Jews to procure and use alcohol for religious purposes. The Rastafarians and Coptic Zionists are seeking legal recognition for their religious use of cannabis (so far only recognized by the U. S. Court of Appeals for the Ninth Circuit [Guam Terr.]).

Many of those using psychedelics do so for the purpose of enlightenment or self-awareness. While this claim may look similar to both the medical and the religious, it is really quite different. It is epistemological in nature, asking the questions “What can I know of the world and how can I know it?” During the 1950s and 60s, large numbers of outstanding figures in arts, literature, science, medicine, and politics tried – and many used repeatedly – psychedelics for this purpose.

By far the most popular use of drugs is for social or recreational purposes. While the beer with buddies after work or the joint when one gets home may serve to relieve some stress, their primary function is pleasure. A joint with a movie and a bowl of popcorn or Ecstasy pills shared by a couple at a dance club are used to enhance pleasure, and for no other purpose. Cocaine in its heyday was primarily a social drug, with lines being shared at parties.

One recent claim is related to, but distinct from, medical claims. Many are now using stimulants, particularly Ritalin and amphetamines, as “brain boosters”, or drugs to make them smarter, more alert, and more fatigue-resistant. Doctors and nurses discovered this effect of amphetamine when it was first introduced in the 1930s and by the 1940s, armed services around the world were using them, as they still are today. For at least a half a century truck drivers have used amphetamines to extend their driving hours. Today’s brain boosters are college students, professionals, and middle-management who get their drugs legally through doctors’ prescriptions, and some have been using them for over a decade. While traditionally medicine has been viewed as remedying a disease, disorder, or deficiency, this use of drugs does the opposite. It is aimed at helping the user attain the superior, not just to return to the normal. It is more like an athlete using steroids or human growth hormone or an aspiring starlet getting breast augmentation in order to outdistance the competition.

One claim I almost forgot because it is so far removed from the world of medicine. The Controlled Substances Act defines the prohibited drug marijuana as being any part of the plant Cannabis sativa, which includes the extremely low THC-content varieties grown as hemp for use as fiber, oil, or food. No matter how many hemp shirts one wears, they will have no medical effect.

In fact, the claim that all drug use is an attempt at self-medication is a claim for more, not less, regulation of those drugs. Diagnosis is a notoriously difficult art, and diagnosis of mental disorders particularly so. The prescription of anti-depressants is, at best, a trial-and-error process, with doctor and patient often going through as many as five or six different drugs before finding one that is effective and without unacceptable adverse consequences. The rate of failure of self-diagnosis and treatment, as evidenced by the high rate of resultant dependency, calls for more professionalism in the diagnostic process, not less.

The Jeffersonian appeal to the right of each to determine what food or medicine he ingests does not negate the intervention of medical professionals in the process. The growth of modern medicine since the days of Jefferson, with its potential for great help – and great harm – requires mitigation of an extreme libertarian interpretation.

We can all join together to seek the rights of those advocating medical, religious, enlightenment, and social uses of drugs as well as the right to grow and use hemp. In this struggle facts and rationality are the strongest weapons. We only hurt ourselves when we resort to easily falsifiable propaganda like the utility of self-medication.

Friday, October 9, 2009

White Rabbit Redux

White Rabbit Redux

Dust off your old Jefferson Airplane albums. Acid may be making a comeback.

Scientific American reports that two new clinical studies are underway examining the use of LSD in psychotherapy [1]. One of these is in Switzerland, funded by Multidisciplinary Association for Psychedelic Studies. The second is at U. C, Berkeley, funded by the Beckley Foundation of England.

The 1950s were the glory days of psychedelic research. Hundreds of studies, involving thousands of patients and hundreds of thousands of doses of LSD were published  [2]. Mescaline (peyote) and psilocybin (magic mushrooms, or ‘srooms) also received a lot of attention.

The study of psychedelics blossomed in the ‘50s. Investigators flourished in literature, art, medicine, basic science and politics.

Aldous Huxley led the way in literature. His Doors of Perception was seminal. He introduced Dr. Hofman to mescaline and psilocybin, resulting in their synthesis. He then took LSD to Harvard, where Leary was researching with psilocybin and also introduced Leary and Allen Ginsburg to each other. William Burroughs failed with his Texas marijuana farm and moved to Mexico, where he lured Ginsburg onto his South American quest for yagé. On the West Coast, Ken Kesey met LSD as an experimental subject at a mental hospital where he worked. When One Flew Over the Cuckoo’s Nest made it big, Kesey and his Merry Pranksters tried to turn the Nation on with their “acid tests”.

(FUN SIDE NOTE: Neal Cassady was the model for Dean Moriarty in On the Road, the novel that introduced many of us to the idea of drugs. He was also the driver of Kesey’s bus, named “Furthur”, when the Pranksters made their cross-country voyage to meet Leary. I have sometimes said that Kesey put a bunch of Beats on the bus, Cassady drove them around the country, and the first hippies disembarked.)

By 1950 Sandoz was sending samples of LSD to interested doctors – the standard way of testing new drugs and building markets for them before the FDA started requiring proof of efficacy in 1962. This surprising new drug created quite a buzz.

Several doctors, following the lead of the literary adventurers, tried to study the effect of acid on creativity and the arts. However, no good theories of the brain existed at the time, and modern methods of study, including scans, were still some thirty years in the future. So after watching painters paint while tripping and afterward and talking to poets who were buzzed, these experiments didn’t really lead to anything.

But the fifties was also the time when the first real psychopharmacological breakthroughs were made. Many doctors were therefore willing to try LSD as an adjunct to the kinds of therapy they were already doing. It demonstrated some success in several areas.

Grief and transition counseling was one of the most promising. Those who had experienced the loss of a spouse or close relative or those facing a terminal diagnosis in themselves or a family member seemed to cope with the situation much better after one or two counseling sessions involving acid.

Couples therapy, or working with those having relationship problems, also progressed better when the work involved doses of acid.

Therapists working with disorders now classified as Post Traumatic Stress, panic disorder, and obsessive-compulsive disorder also tried using LSD with their patients. These efforts, too, showed marked success.

Researchers in Canada used LSD in treating alcoholics who had not been successful in earlier attempts at treatment. They reported cure rates without relapse of around fifty per cent, levels no other therapy has reached.

Over all, several thousand studies were published. First, they demonstrated the drug to be remarkably safe. Almost no significant adverse effects have been noted. They also indicated high levels of successful treatment. However, measured against the stringent standards for drug testing that have developed since 1962 under the changed FDA protocols, few of these studies would be considered sufficiently rigorous today.

But the dark side experimented with acid as well. Even before 1945, the OSS was looking at mind-altering drugs, and when the CIA took over the job, it continued the research. Both the CIA and Army Intelligence became interested in LSD early and started experiments that continued for over a decade. The CIA first tried acid as a truth serum. When that didn’t work, they experimented with the ideas of secretly dosing enemy commanders or politicians so that they would act crazy and lose credibility or with dosing water supplies so that populations would become uncontrollable. These experiments involved secretly dosing unknowing subjects, including drafted soldiers and hospitalized mental patients. Almost all reports of adverse incidents come from these experiments on unknowing subjects.

These failures led the military to pressure Congress to outlaw LSD. In 1968 acid became illegal under federal law. But doctors continued using mescaline and psilocybin until they were banned with the passage of the Controlled Substances Act.

Soon after that, MDMA became available, and doctors quickly adopted it with good results. When the DEA began its process to place MDMA in Schedule I, the CSA classification for drugs that have no medical use and which may not be possessed legally, over 250 therapists filed protests, stating that it was essential to their practice.

When the DEA placed MDMA in Schedule I, The Multidisciplinary Association for Psychedelic Studies was formed. Partly in response to MAPS’s urging, the FDA convened a Technical Panel in 1995 to establish guidelines for research on psychedelics.

Since then, research has picked up. Most of us are aware of the large number of studies on marijuana, but the other drugs have experienced resurgence as well.

MDMA has completed clinical safety trials, and Phase III trials on treatment of PTSD have been going on for several years. These look to be very successful.

Ibogaine is being tested in Mexico as an adjunct to treatment of opioid addiction. This use look similar to the work using LSD with alcoholics conducted in Canada in the 1950s. Incidently, those researchers were the ones to coin the term “psychedelics”. Also, the Native American Church has had very good results working with alcoholics in its peyote rituals. The active ingredient in peyote is mescaline.

So, the bus is freshly painted, and Jerry and The Dead are cued up on the iPod. Get those wildly colored outfits out of the back of the closet and dust them off. Let’s all get on the bus: it’s time to go "Furthur".

[1] Stix, Gary, “Return of a Problem Child: LSD makes a comeback as a possible clinical treatment”, Scientific American, October, 2009, p. 18. See also Marsa, Linda, “The Acid Cure”, Discover presents The Brain, Fall 2009, p. 54.

[2] Lee, Martin A. and Bruce Shlain, Acid Dreams: The Complete Social History of LSD: The CIA, the Sixties, and Beyond, Grove Press, 1994, is the standard history of LSD studies, although much significant information about the CIA has come to light since its publication. I recommend it to anyone looking for more information on the topics I cover here.

Sunday, October 4, 2009

Marijuana Comes to the Americas

Marijuana Comes to the Americas

If you read my postings on “The Prehistory of Marijuana”, you know I presented two theories of how marijuana came from the old world to the new: from sub-Sahara Africa to Brazil with slaves or from North Africa with Moorish sailors on Spanish ships. You also know I was not enthusiastic about either of them.

I have now stumbled over a third theory that fits the facts much better. Indian hemp came to the Americas from (drumroll) India .  I found it in Grim, Ryan, This Is Your Country on Drugs: The Secret History of Getting High in America, Wiley (2009), pp 44-45.  Grim is a journalist, now writing primarily for Slate.  He also spent a few years working for MPP.  This book is a fun and informative read.

Great Britain eliminated slavery in all of the British Empire in the 1830s. The Jamaican sugar plantations had been highly profitable, but they needed large amounts of cheap labor to continue their operations. Relations within the Empire made India the best place for them to find workers.

Those Indian workers brought their families with them when they immigrated to Jamaica. And they also brought Indian hemp for relaxation, medicine, and religion. As their numbers grew, they expanded into the coastal areas of Central America, especially Panama.

This theory explains some mysteries and makes good connections with known historical points.

The “aha” moment for me was that this theory explains why Jamaican cannabis is called “ganja”, an Indian name. If the other theories were correct, one would expect the use of “hashish” from North Africa, “cannabis” or “hemp” from Europe, or some name from Southern or Central Africa. We do know from the debates leading up to the criminalization of marijuana in the U.S., that most Americans at that time were not aware of the identity of cannabis, hemp, and marijuana.

When the U.S. began work on the Panama Canal, it brought large numbers of workers from Jamaica and Cuba, believing them to be more resistant to yellow fever. These workers mingled with North Americans working on the canal. Panama became the direct source of three of the marijuana routes into the U.S. and the indirect source of the fourth.

Sometime between 1900 and 1920, marijuana became common in the Port of New Orleans. From the time of the California gold rush starting in 1849 (about when Indian workers first started appearing in Panama), a large part of New Orleans shipping originated in Panama, and as the Canal was being built and finally opened, that traffic increased.

In the early 1940s, Detroit Red (later Malcolm X) was selling reefers in New York to musicians. His source of supply was crewmen on Caribbean freighters, most of which came from New Orleans or Panama.

The army stationed troops in Panama beginning in 1904. The use of marijuana by these troops grew to the point that the Surgeon-General of the Army did a study of it in 1931, leading to publication of his report on marijuana use in 1932, in which he concluded no regulation was needed.

The fourth source of American marijuana, and the largest, was Mexico. Historically, Mexico has always had a strong flow of immigration from Central America, a migration that still continues. Mexico is probably where the name “marijuana” – “Mary Jane” arose. The turmoil of the Mexican Revolution of 1910 led to a large increase of people moving across the border into the U.S., where they found work, primarily as agricultural laborers. The presence of these Mexican immigrants led to the first anti-marijuana laws, beginning with the infamous El Paso ordinance.

This India-Jamaica connection is the most satisfactory one I have seen so far. I have begun looking for sources to try and nail it down. If any of you know of, or run across, anything that might bear on this issue, please help me out.

Tuesday, September 29, 2009

Drug Law Top Ten

Drug Law Top Ten

Judge James Gray, in his recent Los Angeles Times Column proposed a list of what he believes most people would agree are the top ten goals of our drug laws. Bearing in mind his cautions that not everyone will agree to all of these and that they are in no particular order, here are his drug law top ten:

  • 1. Reduce the exposure of drugs to and usage of drugs by children;
  • 2. Stop or materially reduce the violence that accompanies the manufacture and distribution of drugs, especially to police officers and innocent by-standers;
  • 3. Stop or materially reduce the corruption of public officials, individual people and companies, and especially children that accompanies the manufacture and distribution of drugs;
  • 4. Stop or materially reduce crime both by people trying to get money to purchase drugs and by those under the influence of drugs;
  • 5. Stop or materially reduce the flow of drugs into our country;
  • 6. Reduce health risks to people who use drugs;
  • 7. Maintain and reaffirm our civil liberties;
  • 8. Reduce the number of people we must put into our jails and prisons;
  • 9. Stop or materially reduce the flow of guns out of our country and into countries south of our border;
  • 10. Increase respect for our laws and institutions.

While I was teaching Controlled Substances Law, I prepared a shorter list of reasons why we have drug prohibition. My question “Why do we have…?” is slightly different from his “What do we expect them to do?”, and mine is shorter and less nuanced since it was intended to spur a discussion among naïve students in the first class of the semester, but the lists overlap a lot. My list of reasons why we have drug laws:

  • 1. Eliminate, or greatly reduce, the presence of intoxicating drugs in our society;
  • 2. Prevent drug users from harming other people;
  • 3. Preserve the health and well-being of those who would use drugs;
  • 4. And establish and proclaim a moral standard which people should affirm even if their behavior does not conform to it.

The big differences (other than the amount of detail) between the lists are that Judge Gray focuses on the behavior of those affected by the law and I focused more on the motivations of the legislators. And he focuses on those affected by the law, while I believe that Congress focused on the drugs as if they were the actors and ignored those affected.

The judge is diffident about the accuracy of his list (unnecessarily so: his thirty years experience in the daily application of those laws probably makes him one of our leading experts on what they actually do), but it really doesn’t matter. His list is a wonderful tool.

In many ways, the reformer’s biggest task is to convince the people he comes in contact with daily. Somewhere on his list – which is marvelously non-confrontational – is something that you and your audience can agree on. I don’t matter if your audience is a friend sharing a beer or a Sunday School class or a Rotary Club. Once you have agreed that one or more of these goals is important, then a discussion about how to achieve it becomes easy. Most groups can come up with a list of solutions, many of which are more effective and less expensive than is drug prohibition. Your goal is accomplished indirectly (remember The Art of War?) and without confrontation.

My list highlights the usefulness of this approach by comparison. I was dealing with a small group of students in a classroom situation where I could compel them to participate, even if unwillingly; and I was working under the time pressure of a single class period. I could use confrontation, anger, and even embarrassment as tools (does this reveal something about your profs you didn’t know?). In voluntary situations like we have in reform attempts, those tools are not available. The judge’s list, by allowing us to play nice, is much better.

Once a goal is selected for discussion, what do you want to do with it? Ultimately, you want to answer three questions, even if the approach is indirect:

1. How well does the current drug law achieve that result?

2. What costs does the use of drug prohibition impose? Be creative here: My own personal pet peeve is the requirement that I show ID and sign a register every month when I am “allowed” to buy less than a month’s supply of decongestant – and that law really doesn’t affect the amount of methamphetamine on the street at all.

3. What are the alternatives and what would they cost?

This kind of structured argument can be very effective. First, it is positive and goal-directed. Second, it can be very specific and concrete, avoiding sloganeering by either side. Third, it provides people with a plan of action.

The judge has given us a great tool with his list. Let’s all learn it thoroughly and start using it to frame our own arguments.

[My list included the use of law to state desired moral principles. Discussing that was out of place in this piece, but soon I will compose an entire screed on the baleful and malicious effects of religion and religiosity on politics, government, and law. BCT]




Sunday, September 20, 2009

What if they had a war...?

What If They Had a War…?

About fifty years ago, our country got involved in a highly unpopular war that incited considerable protest and civil disobedience. One of the slogans of that period was: “What if they had a war and nobody came?”

I was reminded of that slogan when the September 28 issue of Fortune ran a cover story, “How Pot Became Legal”, by Roger Parloff. It’s starting to look like the Government is having a War on Drugs, but no one is coming.

(But, first, a modest little claim of priority. Several months ago, I started spreading the idea that “The people have already legalized marijuana; when will the government catch up?”)

The idea was that, while politicians and generals may declare wars, they depend upon the peoples’ compliance in serving as cannon fodder to fight them. As far as the War on Drugs is concerned, it really looks like the people have become either draft resisters or conscientious objectors.

In the seventy years since the federal government outlawed marijuana, the government’s own estimate of the number of Americans who have used it has grown from 100,000 to over 100,000,000. That’s a lot of people sitting out the War – and they haven’t even had to go to Canada or Sweden.

Even the courts have dropped out. Government officials now proclaim that almost no one (but, unfortunately “almost no one” is not the same as “no one”) goes to jail for a first-time possession of a small amount of marijuana. But, one may ask, if they are not going to put anyone in jail, why were about 800,000 people arrested for marijuana possession last year? Just last year, Massachusetts joined the thirteen states (why does the phrase “thirteen states” resonant with me?) who had acted in the 1970s, and decriminalized the possession of a small amount of marijuana. Some of the police officials and prosecutors screamed that the end of civilization had arrived, but the people just yawned – and lit another joint.

Congress itself is starting to relent. Last week the House of Representatives, in reauthorizing Pell Grants in Aid for college students, voted out the provision barring grants to those convicted of any drug offenses, including marijuana possession. The injustice, which has lasted for ten years, is that students were not barred from receiving grants by other convictions, including those for violent crimes or financial crimes.

The Fortune article claims that California has decriminalized marijuana under the rather transparent fig leaf of authorizing the medical use of the herb. In California, a patient may use marijuana if a physician certifies that, in his medical opinion, use of the drug would be beneficial. Determination both of the existence of a medical condition and of the benefit of marijuana is left to the professional discretion of the doctor. Conditions diagnosed have included headaches, muscular or joint pain, loss of appetite, PMS, insomnia, and even general malaise or disphoria.

If any doctors could use some additional income, consider the numbers. The usual fee for a consultation and issuing of a certificate good for one year is $200. These consultations rarely last longer than ten minutes. A doctor spending an additional thirty minutes a day for 200 days a year would see 600 patients, increasing his income by $120,000 per year.

The federal government has said it will not interfere, and while a few local governments are resisting the opening of dispensaries in their communities, most seem satisfied with the situation. Fortune claims that there are about three times as many marijuana dispensaries in Los Angeles as there are McDonald’s – even more dispensaries than Starbuck’s.

Both Colorado and New Mexico are allowing dispensaries this year, and Rhode Island has passed a law authorizing them. The California model seems to be spreading.

Thirteen states now recognize the medical use of marijuana, and five or six more have bills under consideration. Fourteen states have decriminalized possession. Even allowing for a large overlap between these two groups of states, a substantial part of the American population now lives in a jurisdiction in which marijuana use is legally accepted. Two companies – Oaksterdam University and Cannabis Tech -- now run commercial operations teaching people how to grow and market marijuana.

When I talk to young people, high school and college age, they accept marijuana as a normal part of life even if they don’t use it themselves – and most do not. The law against it rarely enters their consciousness, but when it does, it appears as a minor inconvenience, not a deterrent. A common sentiment is that if a police officer finds them with marijuana, he will just take their stash and send them home. At worst, they think they face a few months easy probation.

I started this piece with a metaphor comparing the War on Drugs to the Vietnamese War, but now I wonder if that was the best choice. Our government finds itself on the losing side in both instances, looking for a way out, but we have been engaged in this war for our entire lives, and opting to sit on the sidelines seems a cowardly choice.

Perhaps a better comparison would be Shaw’s Chocolate Soldier. When forced to war, he threw away his cartridges and filled his ammunition box with chocolates. Maybe we should try to kill the drug warriors with sweetness.

But the best fit may be the major of nursery rhyme fame (Attention, Source Scouts: help me track down this image that remains just out of memory). He’s the one who marched all his men up the hill and then marched them down again.

At any rate, it’s time for the politicians to listen to the people. The war is over. Marijuana is legal. Deal with it.

[Nota bene: Some commentators have asked for my views on the effect of marketing if drugs are legalized and on the role of the U.S. in the international drug trade. It has taken some time to put my thoughts in order and to do a little (ugh!) research, but you can expect to see something on this topics and further parts of my Theory and Practice of Prohibition, interspersed with random brain droppings, in the near future. Let me know if you have other ideas for me to talk about. BCT]

Wednesday, September 16, 2009

Happy Birthday to Us (or U.S.)

Happy Birthday to Us (or U.S.)

Join me tomorrow (September 17) in celebrating our most important national holiday: Constitution Day. The anniversary of the signing of the Constitution is the least celebrated, and probably the least known, of our holidays, but that is where it all began.

Constitution Day has a better claim to being our birthday as a nation than does Independence Day. On the Fourth of July, we proclaimed that we were no longer British. Only after a bitter war and frustration under the Articles of Confederation, did we draft the Constitution that identified us as Americans. On that day, we became one people – one nation – where before we had been the mutually suspicious and quarrelsome citizens of thirteen separate sovereigns eyeing each other warily across borders.

And the Constitution has made us the model to the world. We were the first: now almost every government has a written constitution, must drawing inspiration, if not actual wording, from ours. We have truly shown the way.

But, as Ben Franklin said on that day, we created a Republic, but only we can keep it. Jefferson said that eternal vigilance is the price of liberty.

For several years I have followed the practice of rereading the Constitution as a whole each year at this time. Even after some forty years of practicing and teaching law, I find something new each year. I invite you to join me in this tradition; that’s why I have posted the entire document on this blog. If you have read the document as a whole at any time since high school civics class (if then), raise your hand. Look around – is any hand up? I thought so. Now is a good time to correct that oversight.

Those of us working for drug law reform know that the law must spring from, and be based on sound constitutional principles. Unless we know and love that document, we have no roadmap out of the wilderness.

Happy Constitution Day! Maybe next year we can have birthday cake and fireworks.

U.S. Constitution: Prohibition and Repeal

U. S. Constitution: Prohibition and Repeal

Prohibition of Alcohol


Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

Section 1.

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

[Note: Proof that even We the People can make mistakes. A mere thirteen years later came Repeal. The total repeal process took less than eleven months. The Repeal Amendment is the only time Congress has specified the use of conventions rather than leaving the process up to the state legislatures. BCT]

Repeal of Prohibition


Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.

The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Tuesday, September 15, 2009

U.S. Constitution: Rights Amendments

Constitution of the United States:
Amendments Affecting Citizenship, Personal Rights and Liberties

Bill of Rights

The Preamble to The Bill of Rights

Congress of the United States

begun and held at the City of New-York, on

Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."

[Note: The absence of a Bill of Rights was a major source of contention during the Ratification debates on the Constitution and several of the states included a call for one in their ratifications. The First Congress proposed twelve articles as amendments and ten of them, now known as the “Bill of Rights” were ratified. An eleventh one was ratified in 1882 as the XXVIIth amendment. BCT]


Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Civil War Amendments

[Note: Slavery was the flaw that the Founders were unable to conceal. From the 1820s through the 1850s, it dominated Federal politics until Civil War broke out. These three Amendments were proposed by Congress at the end of that war, and acceptance of them was a requisite for readmission of the seceding states. BCT]


Passed by Congress January 31, 1865. Ratified December 6, 1865.

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.



Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.



Passed by Congress February 26, 1869. Ratified February 3, 1870.

Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

Other Amendments Affecting Rights and Liberties of Individuals or Rights and Privileges of Citizenship


Passed by Congress June 4, 1919. Ratified August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.


Passed by Congress June 16, 1960. Ratified March 29, 1961.

Section 1.

The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation


Passed by Congress August 27, 1962. Ratified January 23, 1964.

Section 1.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.


Passed by Congress March 23, 1971. Ratified July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Section 1.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

Monday, September 14, 2009

Constitution: Articles IV - VII

The Constitution of the United States:
Articles IV – VII

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.


Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.


Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.


Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, "the," being interlined between the seventh and eighth Lines of the first Page, the Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page

[Note: the Signatures – they made it happen. BCT]

Attest William Jackson Secretary

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington

Presidt and deputy from Virginia


Geo: Read

Gunning Bedford jun

John Dickinson

Richard Bassett

Jaco: Broom


James McHenry

Dan of St Thos. Jenifer

Danl. Carroll


John Blair

James Madison Jr.

North Carolina

Wm. Blount

Richd. Dobbs Spaight

Hu Williamson

South Carolina

J. Rutledge

Charles Cotesworth Pinckney

Charles Pinckney

Pierce Butler


William Few

Abr Baldwin

New Hampshire

John Langdon

Nicholas Gilman


Nathaniel Gorham

Rufus King


Wm. Saml. Johnson

Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil: Livingston

David Brearley

Wm. Paterson

Jona: Dayton


B Franklin

Thomas Mifflin

Robt. Morris

Geo. Clymer

Thos. FitzSimons

Jared Ingersoll

James Wilson

Gouv Morris


This was originally a response to a private email, but it looks good enough to share generally:

I'm not sure which of my many blatherings you're referring to, but you may be confusing two different things.

Yes, I'm in favor of self-medication. My cabinet includes, among other things, ibuprophen, aspirin, and two different anti-histamines. If I wanted to run the legal risks, I would have mj available for insomnia, but my position is rather exposed.

On the other hand, I am not competent by training for more sophisticated diagnosis and can't do the blood tests needed for more powerful medication. I'm happy to have both doctors and the FDA handy for my use. But they need not be exclusive.

I am opposed to two things.

The claim that all non-doctor-mediated drug use is self-medication is bogus. A lot of drug use -- alcohol, marijuana, ecstasy, cocaine, 'srooms -- is strictly recreational and social. Some -- mainly caffeine and other uppers -- is work-related like combat aircrews on amphetamines, "go-fast pills". Some is religious -- mj for Rastas and Coptic Zionists, wine for Christains and Jews, psychedelics for self-awareness. Some is simple curiousity.

These claims are just as valid as claims of medical use.

Second, a lot of self-medication is mis-directed and counterproductive. If taken for the wrong disease or disorder they, even mj, may increase the disorder rather than alleviate it. Even marijuana can make some conditions worse.

In short, I would say too things:

1. While everyone should have the right to self-medicate, over the last half-century both medical science and pharmacology have become so complex that only a fool would use self-medication for more than the most simple and routine disorders, and

2. Over-stating the claims that use of marijuana or other street drugs is always self-medication denigrates and denies the legitimacy of uses for recreation, productivity, spirituality, and even experimentation.

There's room for everybody.

Sunday, September 13, 2009

Constitution: Articles II & III

Constitution of the United States: Articles II and III

Article. II.

[Note: creates the President and Vice-President and established their responsibilities, powers, and limitations. BCT]

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

Amendments Primarily Affecting Article II

[Note: Judging strictly by the number of Amendments, this has been the most problematic part of the constitution. BCT]


Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.


Passed by Congress March 2, 1932. Ratified January 23, 1933.

Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

[Note: Although the National Archives classifies this Amendment as modifying Article I and Amendment XII, I have chosen to place it with Article II, since most of us today organize the political year around the presidential term. BCT]

Section 1.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.


Passed by Congress March 21, 1947. Ratified February 27, 1951.

Section 1.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.


Passed by Congress July 6, 1965. Ratified February 10, 1967.

Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office

Article III.

[Note: Creates the Supreme Court and provides for the Federal judiciary. BCT]
Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted

Amendments Primarily Affecting Article III


Passed by Congress March 4, 1794. Ratified February 7, 1795.

Note: Article III, section 2, of the Constitution was modified by amendment 11.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.