Is there a Rational Basis for NH's War on Marijuana Anymore?

Abstract

This paper examines the specific vulnerability of New Hampshire's War on Marijuana to scrutiny under the so-called rational basis review standard. Among other things, it examines the relationship between rational basis review and the concept of rationality. It argues that rational basis review, if applied in its traditional form to marijuana prohibition by criminal law in New Hampshire, would not, in fact, be a rationality test. Rather, it would be a test that defaults to judicial deference in the face of laws that are irrational and cause great harm to people. It supports this argument by demonstrating that New Hampshire's claim to care about the goal of citizen health and safety as its justification for marijuana prohibition, is undermined by the ways in which New Hampshire has adopted policies in other domains that are at least as harmful to citizens as harms posed by marijuana. It also does so by relying upon substantial evidence that the means of achieving the goal of public health and safety through criminal prohibition are demonstrably ineffective.

Keywords: Marijuana, War on Drugs, Rational Basis Review, Prohibition, New Hampshire, Crime, Criminal Law, Racism, Equality, Controlled Substances, Addiction