Mexican Supreme Court Inches Toward Marijuana Legalization


The Supreme Court of Mexico may well be on its way to legalizing marijuana.

A pro-legalization protester in Mexico City. Courtesy Alfredo Gayou via Flickr.

A pro-legalization marcher in Mexico City. Courtesy Alfredo Gayou via Flickr.

As of this past November, four members of a nonprofit organization dedicated to weakening drug cartels, the Mexican Society for Responsible and Tolerant Consumption (Sociedad Mexicana de Autoconsumo Responsable y Tolerante, or SMART), have the right to produce, possess, and consume marijuana for their personal recreational use. The Supreme Court’s ruling held that prohibiting marijuana growth for personal use was unconstitutional. However, the narrow ruling only grants allowances to these four individuals.

The president of Mexico, Enrique Pena Nieto, is still opposed to the legalization of marijuana, as are many politicians, and also the Catholic Church. But with five more marijuana-related cases pending before the court, broader legalization for recreational use could be around the corner.

In their reasoning, the judges pointed to the constitutional right of self-determination, and the disproportionate sanctions on marijuana versus alcohol and tobacco. But more than that, the ruling is a critical one, coming at a time when failing drug policies allow drug cartels to wreak havoc on the Mexican people, subjecting them to kidnappings, extortion, and worse.

One of the four people party to the case, Armando Santacruz, told the press, “Our objective was always to change drug policy in this country, which is one of the main motors for the violence, corruption and the violation of human rights in Mexico.” This may be the first step towards marked policy change and the decline of the drug cartels.

That was certainly the case when some limited marijuana use was legalized in the United States. Here, twenty-three states legalized marijuana for medical use, and four, recreational use. That move significantly cut profits for cartels. For example, when Colorado pioneered legalization on the state level, the state earned $23.6 million in taxes in the first five months. And it took even more money off the black market. Mexico is taking note.

But legalizing marijuana is not a panacea for Mexico’s drug cartel woes. As it happens, Mexican drug cartels rely primarily on the United States market for support. Since marijuana accounts for a fifth of cartel revenue, legalizing marijuana in the US can have a more debilitating effect on the cartels than legalization in Mexico. As states slowly legalize marijuana and better quality strains are produced in the United States, demand for Mexican marijuana drops.

Furthermore, even if the cartels are dealt the blow of federal legalization in the United States, only one branch of the criminal enterprise will wither. Mexican drug cartels are bigger than marijuana, and will continue to profit from kidnapping, extortion, and the sales of other drugs. This ruling may be a win for self-determination, but it is scarcely the death knell of Mexico’s drug cartels.

The real victory here is for personal freedoms, and the United States could not have said the same after Gonzalez v. Raich, 545 U.S. 1 (2005) in which the Supreme Court held that marijuana, even if home-grown and used for non-commercial purposes, could be banned by Congress. The court explained that under the Commerce Clause, Congress could regulate interstate commerce, and locally grown marijuana could potentially have a “substantial effect on interstate commerce.”[1] The court stretched the Commerce Clause nearly to its breaking point by relying on the aggregate effect on the economy that could be created by individual marijuana growth.

In a fiery dissent, Justice Thomas warned about the slippery slope effect, writing that under such reasoning, “the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states.”[2] But even Justice Thomas only warned about the infringement on state sovereignty, and made no mention of individual autonomy.[3] This is in stark contrast to the Mexican Supreme Court ruling, which focused on individual rights.

What might account for the difference? The right to freely develop your personality is a principle of Mexican law. The United States Constitution has no such language. Still, the United States is hardly a stranger to the concept of individual liberty. Could banning the individual’s possession and/or consumption of marijuana be a deprivation of the right to property? Or in cases of medical necessity, a violation of the right to life? Or a blanket denial of liberty?

If Raich had taken the human rights approach employed by SMART’s lawyers, maybe the question wouldn’t have been whether Congress has the right to regulate marijuana under the Commerce Clause, but whether Congress’ interest in regulating marijuana outweighs the right to life, liberty, and property.


[1] Raich, 545 U.S. at 32.

[2] Id. at 69.

[3] Id.

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