Earlier this week Mexico’s Supreme Court issued a fifth and binding decision that cannabis prohibition violates the country’s constitution.
In theory, cannabis decriminalization is the law in Mexico. A conviction for personal use will not be upheld in the country’s highest court. In practice, local police officers have wide discretion in law enforcement, so don’t test the ruling just yet.
Beyond Mexico, the ruling will likely spur further legalization efforts internationally, because the Supreme Court based its decisions on fundamental issues embedded in modern human rights law.
That’s pretty shocking, given that Mexico invented reefer madness in the 1800s.
Isaac Campos is the author of Homegrown: Mexico and the Origins of Mexico’s War on Drugs. We reached him at his office at the University of Cincinnati, where’s he’s an associate professor, and asked him about the importance of this week’s ruling.
“This decision really does matter,” he said. The ruling is especially remarkable, Campos said, because of the cultural history of cannabis in Mexico. “Since the middle of the 19th century,” he noted, “marijuana has had an overwhelmingly wicked reputation in Mexico.”
Which is why, Campos said, this week’s ruling acted as a marker of profound change for the entire nation.
Mexico Pioneered the War on Marijuana
(The University of North Carolina Press
Few Americans know cannabis came to the New World as the hemp rigging of Christopher Columbus’ ships. Hemp was so important that the Spanish crown ordered colonists to cultivate it in New Spain. Indigenous peoples around Mexico City noted the flower’s properties, and quickly added medical cannabis to their native pharmacopeia. “Hemp” disappeared into the hinterlands with colonizers, and seemingly native marijuana began appearing in informal stores in Mexico City.
Americans’ first taste of reefer madness came from lurid Associated Press crime reports out of Mexico City.
Among the Mexican populace at the time, marijuana “really was seen as the most dangerous drug there was,” Campos said. “It was said to cause instant madness and violence in its users.” Local and then state prohibitions on marijuana began in Mexico in the 1870s, long predating prohibition north of the border.
In 1917, a change to the constitution of Mexico opened the door to the imposition of federal prohibition.
“That specifically gives the [Mexican] federal government the power to create laws on substances that could supposedly ‘poison the individual and degenerate the race,’” Campos notes.
Fifth Time’s The Charm
This week’s ruling came as a surprise to most Americans, but many drug reform experts and Supreme Court watchers within Mexico had expected the cannabis decisions.
Mexico’s Supreme Court has to rule the same way on an issue five times for it to carry precedent. They had already done so in three cases, starting in 2015.
“It seemed pretty likely that it was going to happen,” Campos said.
And it’s not trivial. Mexico’s Supreme Court has repeatedly struck down same-sex marriage bans. Mexico subsequently changed its constitution to allow same-sex marriage.
This week’s cannabis ruling “will carry a lot of weight, and it should embolden legislators who are maybe on the fence about legalization,” said Campos.
Mexico has a new president—Andrés Manuel López Obrador —who starts on the job in December. Obrador has “talked about being in support of marijuana legalization. I think this ruling can only give more fuel to that in general. If Obrador wants to legalize marijuana, this is really going to open up the door to justifying that.”
International Law Taketh Away, Then Giveth
Twentieth century international law led Mexico into its current drug war morass. Modern human rights law might lead it out,
The Mexico Supreme Court’s ruling relies on international human rights law, which holds that people have a fundamental right to “develop their personality freely.” The Mexico Supreme Court decision specifically mentioned it.
That stands in stark contrast to international drug law. Most countries follow what’s known as the “single convention” on narcotics. That 1961 treaty updated and unified cannabis prohibition globally. The US forced many countries to sign the Single Convention on Narcotic Drugs at the point of an economic gun, many scholars have said. You either followed Uncle Sam’s approach or you faced sanction.
Mexico still has its constitutional provision about the “power” to prohibit substances likely to “degenerate” the race. But it also signed on to the Universal Declaration on Human Rights.
The Supreme Court has found that cannabis doesn’t qualify as a potent enough poison or a race “degenerator.” By contrast, its prohibition impedes a person’s universal right to free development of one’s personality.
“It is a really interesting case where the passage on the universal declaration on human rights for the free development of one’s personality served as precedent for legalizing marijuana in Mexico,” said Campos.
Mexican Support for Legalization Remains Tepid
Mexican invented the war on marijuana, and voter sentiment for legalization has historically trailed popular opinion in the United States.
Mexico is a “pretty conservative country with respect to traditionally illicit drugs,” Campos said.
Fifteen years ago, support for legalization in Mexico polled at a dismal 12%. It’s more than double that now, but still lags far behind the 66% support found in a recent Gallup poll of American voters.
Mexico is more stratified economically than the US, and support for legalization among the nation’s intellectual and academic classes hasn’t translated into more widespread popular support.
The Drug War Opened Minds
The slow-rising support for legalization has come about not because of a renewed interest in theories of human rights and personal autonomy—it’s happened because of the brutal realities of the drug war in Mexico.
Over the past 15 years hundreds of thousands of Mexicans have been murdered in the country’s raging cartel war. Those criminal organizations continue to battle over drug distribution routes to the US.
“People have been pushing for new approaches given the reality of what everyone is experiencing there now,” Campos said.
Legalization there won’t end the drug war, Campos said. As state legalization has substantially weakened the market for Mexican cannabis, cartels have diversified away from marijuana, increasing their operations in human trafficking, heroin, and methamphetamine.
“I’m not sure how legalization could remedy the violence because there’s still this huge market in the US for those drugs,” Campos said.
Mexico May Lead Others To Reform
Mexico’s Supreme Court might be the first senior judiciary in the world to have made such a clear statement on the issue.
Canada and Uruguay relied on the executive and legislative branches for legalization.
Voters did the work in nine US states.
And the US Supreme Court’s track record is mostly terrible on cannabis, most recently in Raich v.Gonzales— which used Depression-era crop price controls to justify arresting a medical patient for growing cannabis in her own backyard.
“In that respect you could say you say Mexico is a leader,” Campos said.
And judges all around the world are likely watching.
“I do wonder if other countries will begin pursuing reforms through the same lines,” he said. “There’s a recognition internationally that the war on drugs has been a huge failure. Marijuana clearly should not be prohibited with the same kind of restrictions as heroin, as it is under United States federal law. People are seeking more rational approaches.”