By Sam Mendez, Executive Director of the Cannabis Law and Policy Project
Back on November 4, 2015, the Mexico Supreme Court effectively legalized marijuana for the four plaintiffs in the case before them. Wherever one stands politically on the question of marijuana legalization, how the Mexico’s Supreme Court came to their decision to legalize marijuana is downright fascinating because it was a constitutional issue related every Mexican’s “fundamental right to free development of one’s personality,” a right established in Mexico’s constitution.
Unfortunately, this author hardly speaks Spanish, so the author translated the case into English using Google Docs. The translated case is available for free here. Given that this was a translation done automatically, it contains numerous spelling and grammatical errors, but the ideas and arguments being expressed are still clear. The chief plaintiffs in the case, the non-profit SMART (the acronym meaning, in English, Mexican Society for Responsible and Tolerant Consumption), have a website where they have made documents relating to the case available (the website is in Spanish). A better translation is available on Scribd, but it cannot be downloaded without a subscription.
It’s notable that the court made this decision, despite one poll in 2013 showing 79% of Mexican citizens opposing legalization (though by November 2015 that had dropped to 59%). Another poll stated that while two-thirds of Mexicans opposed legalization, 79% were in favor of its medical use. That same poll said 60% of Mexicans disagreed with the Court’s decision. Compare that to Americans, where a recent poll stated that 61% support marijuana legalization. Mexico is a relatively conservative and highly Catholic country, but that doesn’t seem to be reflected in its high court, which based on this decision appears to be quite liberal.
As The Atlantic discusses, the case was framed on the question of human rights, while questions of public health, crime, and potential medicinal use of marijuana came second. It’s fascinating that the decision came down to Mexico’s “fundamental right to free development of one’s personality,” enshrined in its constitution, which the Court discusses at length. No such right exists in the United States, but it is apparently given as much weight there as we do to our rights to free speech, to practice religion, and to bear arms. The Court summarizes this right essentially as the “freedom to do any conduct that does not harm others,” though it does state there are limits to this and that the government does have a legitimate interest in protecting the public on issues such as health. It seems the burden of proof concerning this right rests on the government to legitimize it’s restricting law and not a plaintiff, akin to American legal concepts of strict scrutiny or intermediate scrutiny.
The Court draws interesting parallels to other individual rights, including one’s right to marry (gay marriage in particular), procreate, for transsexuals to have sexual reassignment surgery (a hot topic in both countries, and quite relevant to one’s right to freely develop their personality), one’s right to choose their personal appearance, their employment, and their sexuality. Drawing parallels between marijuana and issues concerning the LGBT community could be seen as offensive to those within that community, but this shows just how broad the Court wrote this opinion, that using marijuana was a part of one’s fundamental right to develop their personality.
How far does this right go? If smoking marijuana ostensibly doesn’t hurt anyone else, what about using heroin? The court touches on the question of whether marijuana increases a user’s propensity to use harder drugs, and decides that based on the evidence, there is a very low propensity.
What the decision came down to was the balance between individual autonomy and the government’s interest in public health and safety. The Court acknowledged that government policies that restrict the fundamental right in question are valid so long as there is sufficient danger to public health or safety. This is likely why the Court would be unlikely to allow a similar plaintiff to assert their right to use heroin or methamphetamine, because the individual could become a danger to society either through violence or by causing others to become addicted. But the Court held that marijuana has little potential to cause harm when compared to these harder drugs, and thus the government’s policies were too restrictive of individual autonomy. The Court noted that less restrictive policies, such as disallowing minors from using marijuana and making driving while under the influence illegal, were valid. The Court stated that strategies other than a strict prohibition of marijuana, such as education to minors and drivers, were more effective in preventing these harms.
Where Mexico will end up on its marijuana policy is yet to be decided, but there will likely be further updates later this year. Given its proximity to the United States, along with Canada having a similar national conversation, it is surprising to see that change is in the air. It is also interesting to see how different countries approach the issue. For Mexico, their fundamental right to free development of one’s personality carried the day.