Prop 122 Passed: I Declare the Controlled Substances Act as Unconstitutional

Prop 122
Prop 122 would allow the Arizona Legislature or local law enforcement (like Sheriff Joe Arpaio) to determine the Constitutionality of federal laws.


Prop 122
Prop 122 allows Arizonans or their elected representatives to determine the Constitutionality of federal laws.

Prop 122— the misguided nullification of federal law ballot initiative– has passed and will now become law. Liberals bemoaned this initiative before the elections, but we lost. 🙁

Rather than cry in our beer, we liberals should put on our thinking caps and come up with laws that we believe are unconstitutional. (Remember how the Satanists turned the Hobby Lobby decision to their advantage?)

After all, any Arizonan can play the Constitutionality game because Prop 122 says “… the people or their representatives [can] exercise their authority pursuant to this section…” What about laws promoting voter suppression, restrictions on abortion clinics, unnecessary medical procedures (like vaginal ultrasound), or racial profiling. Aren’t those unconstitutional? Oops. Those are state laws.

Turning to federal laws, I declare the Controlled Substances Act to be unconstitutional. Here’s why…

Criteria for scheduling controlled substances under the Controlled Substances Act.
Criteria for scheduling controlled substances under the Controlled Substances Act.

The Controlled Substances Act was a key component of President Richard Nixon’s failed War On Drugs. It classified drugs by levels of danger, addictive properties, and/or medical uses. The classifications range from Schedule I drugs (highly addictive, high potential for abuse, no safe level of use, “no currently accepted medical uses”) to Schedule V (low potential for abuse, accepted medical uses, “limited physical dependence or psychological dependence”). Drugs like heroin are Schedule I, and drugs like codeine are Schedule V.

That all sounds OK, right? The problem is that the Nixon Administration played politics with the Controlled Substances Act and categorized marijuana Schedule I– highly addictive, no safe level of use, and no medical uses.

Have you ever heard of anyone dying from using marijuana? No. Can you overdose of marijuana? No. Have you every heard of cancer patients, for example, using marijuana to help them control their pain or reduce the side effects from their treatment? Yes. Can US citizens legally purchase medical marijuana? Yes.

Have you ever heard of anyone dying from using tobacco, alcohol, or prescription drugs? Yes. Can you overdose on tobacco, alcohol, or prescription drugs? Yes.*  Are these legal drugs addictive? Yes. Are there medical uses for cigarettes or alcohol? No.

More people die worldwide from tobacco use than anything else, but tobacco is legal in the US and freely available to anyone over the age of 18. Lives are ruined, and families torn apart by alcoholism, but it is legal in the US and freely available to anyone over 21. Prescription drug abuse has been declared a “nationwide epidemic“, but potentially dangerous and highly addictive opioid-based painkillers like OxyContin (Oxycodone) are widely prescribed and widely abused, leading to addiction and death from overdose. (Also, people often start their opioid addiction with prescription pain killers and graduate to heroin because of price or availability.)

The Case for Unconstitutionality

We have established that marijuana has been misclassified as a Schedule I drug, and that is actually safer and less addictive than some legal drugs (particularly tobacco, alcohol, and prescription opioids).

But just because the Controlled Substances Act and the War on Drugs are bad policies that Congress doesn’t have the political will to fix doesn’t make them unconstitutional. Here are two rationales for unconstitutionality.

1) It is unconstitutional to discriminate against people based upon race, and it is unconstitutional to deny people equal protection of the laws. Overpolicing of marijuana possession has resulted in the incarceration and loss of citizenship rights of thousands of African American men. While African Americans use marijuana at the same rate as whites, they are four times as likely to be jailed for it. From the 14th Amendment:

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.

2) Alcohol is the only drug regulated in the Constitution; no other drugs are mentioned. Strict Constitutionalist Libertarians would say that since the other drugs are not specifically listed in the Constitution, laws governing those drugs are unconstitutional. (They often use this argument in the abortion debate because abortion is not specifically listed in the Constitution as a right. This argument also is being used in the current flap over the constitutionality of President Barack Obama’s pending executive order on immigration.They say that since the term “executive order” is not specifically in the Constitution, then Obama’s executive orders are unconstitutional overreach. Never mind that the Constitution says the President should instruct branches of government in the interpretation of laws, and never mind that all presidents have issued executive orders.)

I declare the Controlled Substances Act to be unconstitutional because it discriminates against blacks and denies them equal protection and because alcohol is the only drug regulated by the Constitutional.

Now all I have to do is start a citizens’ initiative to officially challenge the law as unconstitutional. How many of these nullification challenges will we see before the courts strike Prop 122 down as unconstitutional?

[Footnote: * Rapid smoking of too many cigarettes in a short period of time will make you really sick, but probably won’t kill you if you’re an adult.}


  1. A very well constructed case for pressing the unconstitutionality of the Controlled Substances Act. I think it simply deprives Americans of liberty and the pursuit of happiness.

  2. Very good column, getting the ball rolling! I think the courts could be FLOODED (by both sides of the political spectrum) after this is certified.

    • Thanks! Let’s see how many unconstitutional laws we can find. The left shouldn’t think that the unconstitutionality game is exclusively for the right, although that’s what the Goldwater Institute would have us believe.

  3. Too many substances are scheduled based 9n political & cultural pressure and not evidence-based medicine. The recent change in hydrocodone combinations is a best example. The drug did not change over decades. Politics did.

    • My point exactly, Michael. If our drug laws were based upon death and addiction rates (instead of politics), tobacco would be schedule I.

      Check out Web MD’s lightweight assessment of Oxycodone risks.

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