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The Declaration of Independence says:

”We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Life, liberty, and the pursuit of happiness are not part of the Bill of Rights, but they are recognized as unalienable rights. The Ninth Amendment of the Constitution says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So we have many other rights besides those included in the Bill of Rights. Even in the Bill of Rights, we are told we have a natural right to “bear arms” and that it shall not be infringed, so it seems self-evident that growing and consuming plants would surely be a natural right.

Is growing and consuming plants a natural human right in the United States?

  • Neither Madison's proposal nor the Preamble nor the BOR use the words "natural right", especially not in reference to bearing arms. – Nij Jan 13 '18 at 11:09
  • Keep in mind that "growing and consuming plants" is not quite the same thing as "growing and consuming this specific plant". Wisconsin's constitution provides the right to hunt, but that doesn't mean you can shoot whatever species of animal you want. – D M Jan 13 '18 at 18:38
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US constitutional law does not refer to "natural rights", it refers to "fundamental rights". This enters into the doctrine of strict scrutiny vs. lesser scrutinies. If the US Constitution specifically names it, it is a fundamental right: bearing arms, speaking and worshiping freely, protections against search and seizure and so on. The Supreme Court can also recognize a right as being fundamental, even if it is not directly protected in the Constitution; for example there is no explicit provision protecting the right to self defense, interstate travel, marriage, privacy and freedom of contract, but these are or have been treated as fundamental rights.

Sometimes a fundamental right can be downgraded, such as the right to freedom of contract. In Lochner v. New York, 198 U.S. 45, the right to contract is taken to be a case of the right to liberty.

The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power. Liberty of contract relating to labor includes both parties to it; the one has as much right to purchase as the other to sell labor.

But later, in Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, the court backpedaled a bit and said that

it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community

and West Coast Hotel Co. v. Parrish, 300 U.S. 379 relied on this to essentially overturn Lochner (without expressly saying so). Parrish agred to work for less than state minimum wage, then sued for the difference. This court dismissed the supposed fundamental right to contract saying:

In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty.

Sometimes, a fundamental right is explicitly recognized and relied on in a court ruling, such as the right to privacy in Union Pacific v. Botsford, 141 U.S. 250, where the court said that

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley; "The right to one's person may be said to be a right of complete immunity: to be let alone."

Note that the ruling does not call it a "fundamental right", but the notion of fundamentality is clearly there in the ruling. Other examples are the right to marry (Loving v. Virginia, 388 U.S. 1):

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Also, the right to chose to use contraceptives is a fundamental right (Eisenstadt v. Baird, 405 U.S. 438 – note how this depends on and elaborates the right to privacy)

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Roe v. Wade also relies on the right to privacy. The court notes that "The Constitution does not explicitly mention any right of privacy", and then lays out how it is implicit in the Constitution.

There is a vast area of actions that might reasonably be taken to be fundamental rights, but have not been ruled on one way or the other. If (in some bizarre dystopian future scenario) a law were passed that made it a crime to grow and use plants, it would not be surprising if SCOTUS ruled that such a law violates a fundamental right, but it almost certainly would be something much more general than "growing plants".

Wickard v. Filburn, 317 U.S. 111 already spells trouble for a supposed fundamental right to grow plants. In this case, appellee grew wheat, but the growing of wheat (and a few other crops) were subject to federal regulation. The court ruled that

The effect of the Act is to restrict the amount of wheat which may be produced for market and the extent as well to which one may forestall resort to the market by producing for his own needs.

The Commerce Clause of the Constitution authorizes Congress to limit interstate commerce. Even though Filburn was not selling the wheat to another state, he also was not buying it from another state, and he was thus (minutely) affecting interstate commerce:

that the production of wheat for consumption on the farm may be trivial in the particular case is not enough to remove the grower from the scope of federal regulation where his contribution, taken with that of many others similarly situated, is far from trivial.

Another indication that there is no absolute fundamental right to grow plants is Gonzales v. Raich, 545 U.S. 1, which held (relying on Wickard) that "Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law".

  • Thanks for the answer! This might be better as a separate question, but isn’t the job of the Supreme Court to defend our rights, rather than look for loopholes in the Constitution so Congress can pass any law they want? If man has a right to grow and consume plants on his own property, as mankind has had for all of known history, then Wickard v. Filburn would surely be unconstitutional. But at least with Wickard, Congress wanted to control commerce. With Raich, Congress just wants to tell us we can’t do something because “they say so”. What does that have to do with commerce? – Cannabijoy Jan 14 '18 at 8:03
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    The job of SCOTUS is to interpret the law, neutrally with respect to government versus individual interests. The Framers failed to include specific-enough rules of interpretation that Wickard would be plain error, and they did include a Commerce Clause, for some reason. I don't know what things would have enough connection to commerce (or any other enumerated power) that they should be included in Congressional power, vs. excluded. – user6726 Jan 14 '18 at 16:45

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