The Genesis of Psychedelica Lex

In early 2019, my wife and I were on vacation to celebrate my 50th birthday.  This book owes its genesis to that vacation. We took a Mediterranean cruise, traversing ten time zones from our home in Arizona.  On our first night on the ship, I was predictably jet lagged and unable to sleep.   As I lay in bed, I ruminated on psychedelics and whether they had a bona fide place in my law practice.  I was already a decade deep in cannabis law and earlier in the year helped to save half the cannabis industry in Arizona through my amici work on a successful Arizona Supreme Court petition. Believing I could not possibly be the first lawyer to have considered this, I took advantage of our ship’s Internet and commenced searching for books on changing the legal status of psychedelics and legal structures, or what that would look like if you succeeded.  To my surprise, I found scant little writing by lawyers about reviving these substances to legal status, let alone writing on the subject of legal paths and structures to get there, and no books devoted wholly to the topic.  There were plenty of texts by medical doctors, psychologists, anthropologists, and enthusiasts, to be sure.  And there were shelves of books about criminal defense.   But I found nothing anticipating taking these substances out of prohibition and through legal limbo.   The proverbial light bulb went off in my head and I spent most of my first night on the ship researching and emailing myself hundreds of articles, links, books, etc.  If anyone on the ship had been monitoring my web browsing from that evening, they would surely have gotten the misimpression I was clandestinely involved in an international drug ring run from my stateroom off the coast of Italy (which compared to my shockingly mundane real life, sounds awesome!).  

In 1968,  Hallucinogens, 68 Colum. L. Rev. 521 (1968), Columbia Law School asked – whether and how the law will meet the question of psychedelics?  In the ensuing half century, precious little in the law has been accomplished to try to answer.  Instead, courtesy of cultural backlash, we enacted the Controlled Substances Act and placed psychedelics on Schedule I, slamming the door shut and pretending that if we ignored it it would all go away. But human consciousness is always with us. It is us. And materials that allow us to expand our consciousness - our humanness – are always attractive. In the instance of psychedelic plants and fungi, humans and psychedelics have a long mutual history. Indeed, the more you look at history, human evolution, and the development of civilization, it becomes increasingly difficult to deny that psychedelics played a role in getting us from there to here. 

On the subject of psychedelics in contemporary times, the argument between Aldous Huxley’s trickle-down academia versus Timothy Leary’s militant populism serve as bookends. Yet even these intellectual luminaries got drowned out in the hysterical overreaction and ultimate prohibition brought about by the Controlled Substances Act.  A half century has passed since psychedelics were placed on Schedule I. A half century in human terms, in this post-industrial revolution world, is a huge amount of time in which a lot can happen.  Consider what humanity has accomplished in just the last 50 years.   We have invented email, cellphones, magnetic resonance imaging, the personal computer, spreadsheets, 3D printing, rolling luggage, disposable contact lenses, the Hubble Space Telescope, the Space Shuttle, the Internet, the Human Genome map, artificial organs, laser and robotic surgery, and GPS to name but a few. In this same 50 years, we have seen the fall of the Soviet Union, the restoration of Germany, multiple genocides, multiple wars, a global recession that bordered on a depression, the first African American president, marriage equality, the attacks of September 11, 2001, and more. Yet everyone is still too afraid to have an open conversation about a fungus.  It’s embarrassing.

As you read this book, you will hopefully come to understand that many drugs, not just psychedelics, are wholly natural and have been alongside humanity on its journey through time. Psychedelics have not been invisible or passive companions. They have impacted us and we them. They have lead us to spiritual and intellectual insights, they have been the glue of many societies, they have lead to the discovery of neurotransmitters and modern brain science and psychiatry, and they have been a source of succor and solace to millions of people. Yet, principally due to Western civilization’s preference for an Abrahamic worldview that emphasizes an exterior locus over an internal one, the very concept of alteration of consciousness through ingestion of substances has taken on a negative mantle that has lead to prejudice, bias, prohibition, religious intolerance, and even genocide. We are long overdue to give this topic of psychedelics, human consciousness, and fundamental human rights over one’s body and thoughts an objective and honest re-think. After all, if we allow government to control human consciousness, is not then freedom of thought an illusion?