Wednesday, August 17, 2005

The Constitutional Problem of Pot, Condoms, and Bacon Double Cheeseburgers

Why is it that the Constitution protects my rights to purchase condoms, but does not protect my rights to purchase marijuana or bacon double cheeseburgers? (This is a follow up to previous postings on both the right to privacy and the rights of drug use.)

Griswald v. Connecticut determined that laws criminalizing the sale of birth control were unconstitutional, under the auspices of a right to privacy. While not specifically mentioned in the Constitution, these rights could be found in “penumbras and emanations,” stemming from the other amendments. This right to privacy is a fundamental right, demanding strict judicial scrutiny. That means that any violation of that right must be narrowly tailored to a compelling government interest. In practice, no violation of a fundamental right will pass such a test. Griswald applied to the states, but its protections would apply to the federal government as well. It’s understood that the federal government could not ban the interstate sale of condoms under the authority granted to it by the Commerce Clause, because such a ban would be in violation of the aforementioned fundamental right.

There is no such problem however, with federal drug laws. Under the Commerce Clause, the federal government is well within it’s authority to ban drugs it classifies as dangerous. While condoms are protected by Griswald, drugs are not. Not being a fundamental right, drug use would apparently fall under a rational basis test, meaning that any law restricting the right to use drugs must be rationally related to a legitimate government interest. In practice, laws almost always pass judicial scrutiny under such a test. And anyhow, as health is a legitimate government objective, and a ban on substances that could be unhealthy is rationally related to public health, such drug laws would survive judicial scrutiny under a rational basis test.

Plenty of other substances could potentially survive judicial scrutiny under a rational basis test as well. Bacon double cheeseburgers are clearly not very good for you. Daily intakes of bacon double cheeseburgers could potentially be more hazardous to your health than daily intakes of marijuana. Under the Commerce Clause, Congress would be well within it’s authority to pass a ban on the sale of bacon double cheeseburgers.

This leaves us in the unusual situation where the purchase of condoms is a fundamental right, while the purchase of pot and cheeseburgers are not. This is especially confusing, given that from a historical prospective, the right to ones own body as far as food and drugs has been far more respected by law than any right to sexual privacy. State laws banning private sexual practices were far more common than state laws banning the consumption or sale of food or drugs for the first 100 some odd years of the history of the United States. It’s unclear why a Constitutionally unstated right to privacy includes a right to buy condoms, for use in the privacy of the bedroom, but does not include a right to buy pot, or bacon double cheeseburgers for use in the privacy of the home.


Post a Comment

<< Home