Government gets Supreme Free Ride on Prohibition Kaptinemo always has good comments, and got me going with this one Pete, there's another dimension to your comment, one that I am sure you've thought about from time to time: why has the veracity of the prohib's blather never, ever been challenged in court? I am not talking about the recent Raich/Monson issues; those are largely a matter of federalism. I am talking about legally challenging the very basis for cannabis prohibition: the information the prohibs state over and over are 'facts'. I am no lawyer, but it seems to me that if the matter were dragged into a court room, and the prohibs forced to go over every single utterance they have ever made, and were challenged to provide the proofs supporting their beliefs, they too would be 'laughed out of court'. You're right. I've thought about it a lot. First, it would never come up directly in a trial. There, the judge will only allow evidence of innocence or guilt, never an analysis of the law or overall legislative strategy. Of course, juries could, on their own express their opinion of prohibition through jury nullification. This is extremely difficult because It's hard to find enough fully informed jurors to actually carry out nullification, and Judges make it extremely difficult for informed jurors to get on a jury without lying (see Jeff Trigg's recent experience). That leaves the higher courts. An attempt could be made to do a facial challenge of a law (a lawsuit filed in the near future that says prohibition laws are blatantly unconstitutional and should be struck down, regardless of any particular case). Most legal works that I've read indicate that facial challenges are unlikely to be accepted by the courts outside of First Amendment law. And no, I don't know why Fourth Amendment law seems to be significantly further down the list of protection. That leaves case-by-case appeals that make it to higher courts, including the Supreme Court. And, you're right Kaptinemo, in every case that I've followed, the government has gotten a completely free ride regarding: The nature of the perceived problem The appropriateness of the proposed solution to the problem, The efficacy of the proposed solution Whether any other approach would be more effective, and Whether the law had been narrowly tailored to minimize intrusion on individuals' rights The Justices simply never seem to consider these things. Compare this to First Amendment law... As a simplified review, look at this Hierarchy of First Amendment standards of review: Strict Scrutiny: The government must show that the law is necessary to achieve a compelling governmental interest..., and that the law uses the least restrictive means necessary to advance that interest. It's often called "strict in scrutiny, fatal in fact," referring to the tiny percentage of laws that are upheld when strict scrutiny is applied. Intermediate Scrutiny: The government must show that the law is necessary to achieve a substantial, or important governmental interest, and that the law is narrowly tailored to that interest. This is a real sliding scale, adjusted up and down based on the court's philosophy, composition, and whim. Rational Review (or Weak Scrutiny): The government need only show a legitimate state interest and that the law is rationally (or sometimes even might be rationally) related to that interest. Only a tiny percentage of laws are struck down when rational review is applied. However, when it comes to the drug war, the scrutiny seems (to me) to be: Drug War Review (or No Scrutiny): The government need only declare an interest (without demonstrating it), and also declare that the law addresses that interest (without demonstrating it, and even when historical fact shows evidence to the contrary). Note that the Istook case (preventing Marijuana legalization ads in mass transit) was First Amendment. Strict scrutiny, and the government had no chance (the courts noted that the government had no legitimate interest in restricting political speech, for example). Caballes, however, was Fourth Amendment. No discussion of the government's compelling interest in prohibiting marijuana. No discussion of the impact of intercepting marijuana in car trunks to the overall supply. No discussion of balancing the harms (or lack thereof) if the marijuana were to get through compared to the constitutional harms of searching cars. The government was not required to defend its success (or lack thereof) in the drug war, or show that there was not some other method to accomplish its goals that would be more effective. In fact, if I ever had the chance to have lunch with a Supreme Court Justice, the first question I'd ask would be: "Why do you give the government a free ride when it comes to prohibition?" To the courts, prohibition is an automatic given. The only thing they'll look at is how far into the Fourth Amendment the government can trample. Note: It appears that the only area the Supreme Court is still willing to protect at all is the home. The one Fourth Amendment victory I can remember in recent times is Kyllo (thermal imaging on houses). It was, in fact, Kyllo that forced Stevens into his tortured rationalizations in Caballes. I'm just speculating here, but I think if Caballes had been a house instead of a car, the Supreme Court would have ruled differently. However, now with the atrocity of a decision that Caballes ended up, it's possible that the Supreme Court will feel the need to uphold dog sniffs of houses.