RN Collins has written a new series (3) of 18 articles for cannabis law report on 2026 Psychedelics & Legal Issues.

This is the 4th in the series

Contact RN Collins: https://www.linkedin.com/in/rn-collins/

The Cognitive Liberty Claim: Schedule I Prohibition, Neurological Autonomy, and the Constitutional Lacuna at the Boundary of Thought and Conduct

REBUS, the Default Mode Network, and the Substantive Due Process Question for Mental Autonomy

RN Collins, M.S., JD Candidate https://www.linkedin.com/in/rn-collins/

Abstract

The prohibition of psychedelic substances rests on legal architecture that treats the mind as a domain without constitutional protection. Schedule I classification under the Controlled Substances Act prohibits the voluntary alteration of consciousness through specific pharmacological means, without requiring any showing that the altered state itself, as opposed to the conduct associated with obtaining the substance, creates a constitutionally cognizable harm to others. This article argues that the constitutional architecture of the First Amendment and the substantive due process clause of the Fifth and Fourteenth Amendments together may establish an interest in cognitive self-determination that Schedule I prohibition implicates but has never been required to justify under constitutional scrutiny. Whether a court would recognize such an interest remains an open question; this article develops the argument that it could.

The argument proceeds through three analytical moves. First, it examines the neuroscientific foundation for a possible cognitive liberty claim: the REBUS model (Relaxed Beliefs Under Psychedelics; Carhart-Harris & Friston, 2019) suggests that altered states induced by classic psychedelics may not be mere recreational experiences but changes in the brain’s predictive architecture, the default configuration of the predictive processing framework that, on this account, constitutes cognition itself. Second, it traces the cognitive liberty concept from Boire and Sententia’s founding formulations through Bublitz’s philosophical development to the current state of theoretical analysis. Third, it considers how the Glucksberg two-part test, history and tradition, careful description, might apply to a cognitive liberty claim, and addresses the doctrinal difficulties posed by Employment Division v. Smith, Gonzales v. Raich, and the post-Dobbs restructuring of substantive due process.

The article suggests that cognitive liberty may be an unrecognized constitutional interest that the existing doctrinal framework could accommodate, and that the REBUS model may supply the neuroscientific basis for the careful description that Glucksberg requires. This is not an argument for drug legalization. It is an inquiry into whether the government may prohibit the means by which minds are altered without satisfying the constitutional standards that ordinarily govern restrictions on fundamental liberties, a question that, as developed below, does not admit of a confident answer on the current state of the doctrine.

I. Introduction

The First Amendment has been read to protect the content of belief. Substantive due process has been held to protect intimate decisions about body, family, and identity. Neither doctrine has been squarely extended to protect the neurological means by which thought itself is altered, the pharmacological, contemplative, or experiential acts that change the default configuration of the mind. This article considers whether that gap is principled, or whether it may instead reflect a doctrinal accident that the cognitive liberty scholarship of the past twenty-five years has identified, that the neuroscience of the past decade has begun to ground, and that the constitutional architecture of the First Amendment and the Due Process Clause could, at least potentially, close, if courts were willing to engage the REBUS model’s suggestion that altered consciousness may be a mode of cognition rather than merely a recreational state.

Cognitive liberty, the claimed right to determine one’s own mental states through means of one’s own choosing, was introduced as a legal concept by Richard Glen Boire and Wrye Sententia around 1999 to 2000, with the founding formulation appearing in the first volume of the Journal of Cognitive Liberties in 2000 and developed through Boire’s four-part series from 2000 to 2003. The concept was given philosophical grounding by Jan Christoph Bublitz in his 2014 article in the Archiv für Rechts- und Sozialphilosophie, which argued that freedom of thought should encompass the processual dimension of cognition, not merely its outputs. These theoretical formulations have not been adjudicated in any United States federal court. No case has held that a Schedule I prohibition on a consciousness-altering substance implicates the First Amendment or substantive due process. No court has been asked whether the REBUS model’s account of psychedelic-induced cognitive change carries constitutional significance, and it is not certain that a court presented with the question would agree that it does.

This article poses those questions and develops the analysis that the existing doctrinal framework may support. Section II examines the neuroscientific foundation offered for a cognitive liberty claim, focusing on the REBUS model and its possible implications for the constitutional characterization of altered states. Section III traces the cognitive liberty concept from Boire and Sententia through Bublitz to the current state of theoretical development. Section IV analyzes the First Amendment’s protection of thought and its limits. Section V considers how the Glucksberg two-part test might apply to a cognitive liberty claim. Section VI addresses the doctrinal difficulties posed by Smith, Raich, and Dobbs, the last of which presents what may be the most serious structural challenge to the analysis. Section VII considers the constitutional implications were such a claim to succeed, and closes with recommendations for policymakers and regulators considering this terrain. Section VIII concludes.

II. The Neuroscientific Foundation: REBUS and the Possible Cognitive Significance of Altered States

A. The Default Mode Network and Predictive Processing

The neuroscience of psychedelic experience has advanced considerably since the first neuroimaging studies of LSD and psilocybin in the 1990s. Among the more theoretically significant developments is the REBUS model, Relaxed Beliefs Under Psychedelics, developed by Robin Carhart-Harris and Karl Friston in 2019 and published in Pharmacological Reviews. REBUS proposes that the primary mechanism of action of classic psychedelics (psilocybin, LSD, DMT, mescaline) is a reduction in the influence of high-level prior beliefs on perception and cognition, mediated primarily through agonism at 5-HT2A receptors in cortical layer V.

The theoretical framework within which REBUS operates is predictive processing, a computational model of brain function holding that perception and cognition are not passive recordings of sensory input but active predictions generated by the brain’s hierarchical model of the world, updated by prediction error signals. Within this framework, consciousness might be understood as the brain’s best current model of the causes of its sensory inputs, though this remains a contested characterization among cognitive scientists. The default mode network (DMN), a set of cortical regions including the medial prefrontal cortex, posterior cingulate cortex, and angular gyrus that are active during self-referential thought, autobiographical memory, and mind-wandering, is generally treated as a primary substrate of the self-model: the brain’s model of itself as a persistent entity with a history, a future, and a relatively stable set of beliefs.

Classic psychedelics appear to suppress DMN activity and reduce the precision weighting of prior beliefs across the cortical hierarchy. The phenomenological result, on this account, is a loosening of the normal constraints on cognition: rigid belief structures may become temporarily flexible, emotional associations may be destabilized and reconsolidated differently, and the boundary between self-model and world-model may become more permeable. This need not be understood as a description of drug-induced confusion, though reasonable readers of the literature could characterize it that way. It is offered here as a description of a specific, mechanistically characterized change in the brain’s predictive architecture, architecture that, within the predictive processing framework, is thought to structure experience itself.

B. The Possible Constitutional Significance of the REBUS Model

The REBUS model may carry constitutional significance because it recharacterizes what a psychedelic-induced altered state could be understood to be. The conventional legal characterization treats altered states as experiences that incapacitate cognition, analogous to intoxication, which the law has consistently treated as a condition that diminishes, rather than exercises, cognitive autonomy. The REBUS model supports a different, and more contestable, characterization: that altered states induced by classic psychedelics at therapeutic doses may be changes in the mode of cognition rather than departures from cognition, that the predictive architecture is restructured rather than disabled, and that DMN suppression reduces the influence of habitual self-model constraints rather than eliminating cognitive function altogether.

This recharacterization matters constitutionally because the careful description of the liberty interest that Glucksberg requires, and that any cognitive liberty argument would need to supply, depends on an accurate account of what the claimed interest involves, and reasonable neuroscientists could disagree about that account. If altered consciousness were properly understood as a form of incapacitation, the constitutional case for its protection would be weak, since the law has never protected a right to become incapacitated. If, instead, altered consciousness is better understood as a mode of cognition, a specific change in the brain’s predictive architecture enabling a different relationship between the self-model and experience, then a constitutional case might be grounded in the same interest in cognitive autonomy that the First Amendment and substantive due process already protect, at least partially, in other forms. This article does not resolve which characterization is correct; it argues only that the REBUS model makes the latter characterization available in a way that was not previously supported by neuroscientific literature.

III. The Cognitive Liberty Concept

A. Founding Formulations

The concept of cognitive liberty was introduced by Richard Glen Boire in the first volume of the Journal of Cognitive Liberties (2000), arguing that freedom of thought, which he treated as the foundational right underlying freedom of expression, should include freedom in the processes by which thought is formed, not merely freedom from government interference with the expression of already-formed thoughts. Boire’s formulation drew on the First Amendment’s protection of belief and the Fourth Amendment’s protection of the home as a space of private experience.

Wrye Sententia, writing in the Annals of the New York Academy of Sciences in 2004, developed the concept toward neuroscientific grounding, arguing that “[t]he individual, not corporate and government interests, should have sole jurisdiction over the control and/or modulation of his and her brain states and mental processes.” This formulation identifies the brain, not merely the mind as an abstract category, as the relevant domain, anticipating, though not itself resting on, the neuroscientific development that the REBUS model would later offer.

B. Philosophical Development

Jan Christoph Bublitz’s 2014 article in the Archiv für Rechts- und Sozialphilosophie offers what may be the most rigorous philosophical development of cognitive liberty to date. Bublitz argues that freedom of thought in liberal political philosophy may have been conceptualized too narrowly, as a negative liberty against government coercion of belief, and that a more complete account of the interest should include what Bublitz calls the processual dimension: freedom in the means by which beliefs, experiences, and mental states are formed and altered. On this account, cognitive liberty is not merely freedom from thought control; it is freedom in cognitive self-determination, potentially including the choice of means by which one’s mental states are altered, though Bublitz’s own framework leaves open how far that freedom would extend in practice.

Bublitz and Merkel, writing in Criminal Law and Philosophy in 2014, extend the analysis to the criminal law context, arguing that prohibitions on neurointerventions altering cognition may require justification under the same liberty analysis that governs prohibitions on physical conduct affecting only the actor. On this view, the pharmacological prohibition of consciousness-altering substances could be analytically similar to a prohibition on cognitive self-modification, an intervention in the domain of self-determination that the liberal state would need to justify with reference to harm to others, rather than merely to a general interest in preventing certain mental states. Whether courts would accept this analogy is a separate question this article does not attempt to settle.

IV. The First Amendment and the Protection of Thought

A. The Protected Domain of Thought

The First Amendment’s protection of freedom of thought, treated by some courts as distinct from, and more absolute than, its protection of freedom of expression, is discussed in a line of cases running from Meyer v. Nebraska, 262 U.S. 390 (1923), through Stanley v. Georgia, 394 U.S. 557 (1969), to Wooley v. Maynard, 430 U.S. 705 (1977). Meyer held that freedom from governmental interference with the right of the individual to acquire knowledge and to teach it is a liberty interest protected by the Due Process Clause. Stanley held that the First Amendment protects the right to receive information and ideas, reasoning that “[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”

Stanley’s reasoning could be read to extend to the following proposition: that the state has no legitimate interest in controlling the content of a person’s thoughts. Justice Marshall’s own formulation was considerably more cautious: “[w]e are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts,” a sentence that itself hedges the very point it is often cited for. A cognitive liberty argument does not require a court to go further than this cautious formulation. It requires only the more modest proposition that the First Amendment’s protection of thought may include some protection of the means by which thought is formed, that a state cannot necessarily prohibit, without compelling justification, all pharmacological means of altering the brain’s predictive architecture. Whether that modest proposition would be accepted by a reviewing court is far from settled.

B. The Conduct/Belief Distinction and Its Limits

The primary First Amendment obstacle to a cognitive liberty claim is the conduct/belief distinction: the First Amendment protects belief essentially absolutely but protects conduct only incompletely. The ingestion of a psychedelic substance is conduct, not merely belief, and the First Amendment’s protection of belief does not automatically extend to the conduct that produces a belief-altering experience.

A cognitive liberty argument does not require abandoning this distinction, but it may require recognizing that the conduct/belief distinction, applied without reference to the nature of the conduct, could be underinclusive. Consider: a state cannot prohibit book-reading, even though reading is conduct rather than belief, arguably because book-reading is a recognized means by which beliefs are formed. The First Amendment’s protection of the means of forming beliefs, reflected in cases like Lamont v. Postmaster General, 381 U.S. 301 (1965) (right to receive literature), and Board of Education v. Pico, 457 U.S. 853 (1982) (right to receive books), suggests that the conduct/belief distinction may not be absolute when the conduct in question is a constitutionally protected means of cognitive formation. Whether pharmacological alteration of the predictive processing architecture qualifies as a means of cognitive formation in the relevant sense is precisely the contested question the REBUS model is offered to help answer, not a point this article can claim to have settled.

V. Substantive Due Process and the Glucksberg Test

A. The Two-Part Test

Washington v. Glucksberg, 521 U.S. 702 (1997), set out the analytical framework generally applied to substantive due process claims for protection of fundamental liberty interests. Chief Justice Rehnquist’s majority opinion articulated a two-part test: (1) the liberty interest must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed”; and (2) the claimed interest must be described with “careful description” to guard against open-ended expansion of substantive due process beyond well-established rights.

Applying the Glucksberg test to a cognitive liberty claim would require satisfying both prongs, and it is not obvious that either prong is easily met. The first prong, history and tradition, would require identifying a tradition of recognizing cognitive self-determination as a protected interest, which is at best an inference drawn from adjacent doctrine rather than a line of cases squarely on point. The second prong, careful description, would require describing the cognitive liberty interest with sufficient specificity to distinguish it from a general right to be free from government regulation of pleasurable conduct, a distinction that may be difficult to draw cleanly.

B. History and Tradition

A history and tradition of protecting cognitive self-determination from government interference might be assembled from several lines of cases, though the inference cannot be stated with the confidence that a line of cases squarely addressing cognitive liberty would provide. Meyer v. Nebraska and Pierce v. Society of Sisters, 268 U.S. 510 (1925), held that the state may not compel a uniform pattern of thought formation through mandatory school attendance and curriculum control. Stanley v. Georgia held that the right of private thought, including, arguably, the right to receive materials that produce desired mental states through reading and film viewing, is protected against state interference. Griswold v. Connecticut, 381 U.S. 479 (1965) (Douglas, J.), held that the right of privacy in intimate decisions extends to decisions implicating the formation of the innermost aspects of personal identity. Cruzan v. Director, 497 U.S. 261 (1990), held that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment, a holding that some commentators read to imply a corollary interest in determining the means by which one’s mental and physical states are maintained or altered, though the Court in Cruzan did not itself draw that inference.

Taken together, these cases could be read to establish a tradition of protecting the domain of cognitive self-determination, the space in which the individual, rather than the government, makes decisions about the formation and content of mental states. A cognitive liberty claim would be a specific application of that reading to the pharmacological domain: the claim that the government may not prohibit the means by which a person alters their own cognitive architecture without satisfying constitutional standards comparable to those governing other fundamental liberty prohibitions. Whether a reviewing court would accept this reading of Meyer, Stanley, Griswold, and Cruzan as establishing the necessary tradition, rather than treating them as unrelated to a novel pharmacological claim, cannot be predicted with confidence.

C. Careful Description

The careful description requirement may be the most significant doctrinal obstacle to a cognitive liberty argument. Glucksberg rejected an underdescribed right to “choose death” or “control one’s body” in favor of the specific right of a terminally ill, mentally competent patient to have a physician’s assistance in committing suicide. A cognitive liberty claim would need to be described with comparable specificity, and it is not certain that such specificity is achievable in a way a court would accept.

The REBUS model may enable a more specific description than has previously been available: a claimed interest of a mentally competent adult in using pharmacological means, specifically, classic psychedelic substances at sub-toxic doses, to induce temporary changes in the brain’s predictive processing architecture for purposes of cognitive self-modification in private, non-commercial, adult-consensual settings. This description is more specific than a general drug-liberty claim along three dimensions: the class of substances (classic psychedelics at sub-toxic doses), the mechanism of the conduct (alteration of the predictive processing architecture via 5-HT2A agonism), and the context (private, adult-consensual). Whether this level of specificity would satisfy Glucksberg’s careful-description requirement, particularly after Dobbs, is a question this article can frame but not answer with confidence.

VI. The Doctrinal Difficulties

A. Employment Division v. Smith and the Neutrality Principle

Employment Division v. Smith, 494 U.S. 872 (1990), held that the Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. Smith does not directly govern a cognitive liberty claim grounded in substantive due process and the First Amendment’s protection of thought rather than in religious free exercise. Even so, Smith’s broader principle, that the government may enforce neutral, generally applicable laws against conduct motivated by constitutional interests without triggering strict scrutiny, poses a structural obstacle that a cognitive liberty argument would need to address.

One way to navigate Smith is to ground the claim in the Glucksberg framework rather than in a claimed right to exemption from a general law. On this approach, the argument would not be that the cognitive liberty interest exempts psychedelic users from the Controlled Substances Act, but rather that the Act’s Schedule I prohibition on a class of substances that primarily alter the brain’s predictive processing architecture implicates a constitutionally protected interest that the Act has never been required to justify under an applicable standard of heightened scrutiny. Whether a court would accept this framing rather than treating it as an attempted end-run around Smith is uncertain.

B. Gonzales v. Raich and the Commerce Power

Gonzales v. Raich, 545 U.S. 1 (2005), upheld the CSA’s application to intrastate, non-commercial cultivation and possession of cannabis under the Commerce Clause. Raich established that Congress may, under the Necessary and Proper Clause, regulate intrastate non-commercial conduct that is part of a comprehensive regulatory scheme targeting interstate commerce, even when the specific instance of regulated conduct is entirely local and non-commercial.

Raich is a significant obstacle to any facial challenge to the CSA on Commerce Clause grounds, though a cognitive liberty argument is not, at bottom, a Commerce Clause argument. It is a liberty argument, and Raich does not appear to resolve whether the CSA, as applied to private, non-commercial, adult-consensual psychedelic use, would survive scrutiny under a liberty-based challenge. Raich establishes that Congress has the power to enact the CSA; it does not by itself establish that the CSA, as enacted and applied, survives scrutiny under every constitutional provision that might be invoked against it. That said, this distinction between Commerce Clause power and liberty-based limits on its exercise has not been tested in this context, and a court could plausibly treat Raich’s deference as informative of how it would approach a liberty claim as well.

C. Dobbs and the Restructuring of Substantive Due Process

What may be the most serious structural challenge to a cognitive liberty argument is Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). Dobbs overruled Roe v. Wade and Planned Parenthood v. Casey and, in doing so, substantially narrowed the scope of substantive due process. Justice Alito’s majority opinion held that substantive due process protects only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” and declined to recognize rights not specifically identified in prior doctrine.

Dobbs poses a genuine risk to a cognitive liberty argument, since cognitive liberty has not been recognized as a constitutional right in prior doctrine, and the Dobbs majority’s comparatively restrictive reading of Glucksberg, appearing to require a specific historical tradition of the exact right claimed, rather than a tradition of the broader liberty category the right might be said to exemplify, makes new substantive due process claims considerably more difficult to sustain. It is not certain that a cognitive liberty claim survives this reading, and this article does not claim otherwise.

A cognitive liberty argument might nonetheless be advanced along three lines, each of which carries its own uncertainty. First, the tradition of protecting cognitive self-determination reflected in Meyer, Pierce, Stanley, Griswold, and Cruzan could be characterized as a tradition of a broader category, cognitive autonomy, that the specific right claimed here might be said to exemplify, rather than a tradition of the narrow right itself; whether a post-Dobbs court would accept that characterization, rather than treating it as the kind of level-of-generality maneuver Dobbs was written to foreclose, is unresolved. Second, the First Amendment component of the argument, which is not a substantive due process claim, may be less directly affected by Dobbs, since the First Amendment’s protection of thought and the means of thought formation rests on a separate constitutional basis that does not depend on substantive due process doctrine, though courts could still import Dobbs-style skepticism about novel liberty claims into their First Amendment analysis. Third, the careful description enabled by the REBUS model, describing the claimed interest in terms of the brain’s predictive processing architecture and the specific mechanism of psychedelic action, may distinguish a cognitive liberty claim from the unenumerated “liberty to do whatever one pleases” that Dobbs most decisively rejected, though the distinction is one of degree, and reasonable jurists could disagree about whether it is sufficient.

VII. Constitutional Implications and Considerations for Policymakers

A successful cognitive liberty claim, a judicial holding that the First Amendment or substantive due process protects some interest in pharmacological cognitive self-modification, would not necessarily require the legalization of psychedelic substances or the invalidation of Schedule I classification. It would more likely require the government to satisfy whatever constitutional standard applies to the magnitude of the liberty restriction at issue, and the scope of that requirement would depend heavily on how narrowly or broadly a court defined the protected interest.

Under strict scrutiny, the standard that would likely apply if a court recognized cognitive liberty as a fundamental interest, the government would need to demonstrate that Schedule I prohibition of classic psychedelics is narrowly tailored to serve a compelling governmental interest. The government’s asserted interests in Schedule I prohibition, prevention of addiction, protection of public health, reduction of drug-related crime, are substantial, but may not be compelling as applied to the specific class of substances and context described above. Classic psychedelics are not generally associated with physical dependence in the pharmacological literature reviewed here, and the public health risks associated with private, adult-consensual, supervised use at therapeutic doses do not appear, on the current state of the scientific literature, to be established at a level that would clearly satisfy the narrow-tailoring component of strict scrutiny. This is a characterization of the existing literature, not a prediction of how any particular court would weigh it.

The institutional implications could be significant even short of invalidating Schedule I classification. A holding that the government must justify Schedule I prohibition under elevated scrutiny might: (1) shift the burden of production, and potentially of persuasion, toward the government; (2) require the government to produce evidence of compelling interest as applied to the specific class of use and user rather than relying on the general Schedule I designation; and (3) create pressure toward rescheduling below Schedule I for substances that cannot meet that standard. This is roughly the litigation pathway that O Centro Espirita Beneficente Uniao do Vegetal established in the RFRA context; whether a constitutional analogue could be built along the same lines is speculative but not, in this author’s view, implausible.

Considerations for regulators and legislators. Independent of how courts eventually resolve these constitutional questions, state and federal regulators designing or revising psychedelic policy may wish to consider the following:

1. Agencies developing Schedule I enforcement priorities could consider documenting, contemporaneously, the specific public-health and safety interests asserted for enforcement against private, adult, non-commercial use, since the absence of such a record may become relevant if courts eventually apply heightened scrutiny to this class of restriction.
2. State legislators considering psilocybin or other psychedelic decriminalization or therapeutic-access frameworks may wish to build in evidentiary records, dosage data, adverse-event tracking, supervised-use outcomes, that could later inform a compelling-interest analysis, whether the question arises in state or federal litigation.
3. Congress, in any future rescheduling review, may wish to address directly whether the therapeutic and cognitive-liberty literature discussed here bears on the appropriate schedule for classic psychedelics, rather than treating scheduling as a question resolved solely by abuse-potential criteria.
4. Regulatory bodies overseeing emerging state psychedelic-services programs could consider whether their licensing and access criteria are calibrated to the private, adult-consensual, supervised-use context that the cognitive liberty argument describes, since a narrower regulatory carve-out may be less exposed to constitutional challenge than a blanket prohibition.

These are offered as considerations for institutional design, not as predictions about litigation outcomes, which remain uncertain on the current doctrine.

VIII. Conclusion

The First Amendment has been read to protect the content of belief. The REBUS model suggests, though it does not conclusively establish, that classic psychedelics at therapeutic doses may alter how the brain processes information, specifically, how the predictive processing architecture generates experience, integrates prior beliefs, and constitutes the self-model. The gap between these two propositions, between the protection of belief and the absence of protection for the means of belief-formation, may not be principled. It could instead reflect doctrinal inertia, though this article does not claim that inference can be drawn with certainty.

This article has suggested that: the REBUS model may provide a neuroscientific basis for characterizing psychedelic-induced altered states as modes of cognition rather than departures from cognition; the cognitive liberty scholarship of Boire, Sententia, and Bublitz supplies a theoretical framework, though not a judicially tested one, for a constitutional claim; the Glucksberg two-part test could potentially be satisfied by a carefully described cognitive liberty interest grounded in the neuroscientific account of predictive processing alteration, though this is far from certain; and Dobbs, while posing a serious structural challenge, does not necessarily eliminate the constitutional foundation for a cognitive liberty claim built on the First Amendment and the tradition of protecting cognitive self-determination reflected in Meyer, Stanley, Griswold, and Cruzan.

None of this amounts to a prediction that a constitutional challenge to Schedule I prohibition would succeed. It suggests only that such a challenge may be legally coherent, that it has some grounding in existing doctrine, and that it responds to a gap in constitutional analysis that courts have not yet addressed. Litigants developing a constitutional case for psychedelic access, regulators designing frameworks for psychedelic services, and scholars developing the theoretical foundations of neurolaw may each find aspects of this analysis relevant to their work, though each would need to reach their own judgment about how far the argument can be pressed. The claim has not yet been tested in a federal court, and whether it would prevail if it were cannot be stated with confidence.

Endnotes

1. Jan Christoph Bublitz, Freedom of Thought in the Age of Neuroscience: A Plea and a Proposal for the Renaissance of a Forgotten Fundamental Right, 100 Archiv für Rechts- und Sozialphilosophie 1 (2014), https://www.jstor.org/stable/24756752 [hereinafter Bublitz, Freedom of Thought] (arguing freedom of thought must encompass the processual dimension of cognition); Wrye Sententia, Neuroethical Considerations: Cognitive Liberty and Converging Technologies for Improving Human Cognition, 1013 Annals N.Y. Acad. Sci. 221, 223 (2004), https://doi.org/10.1196/annals.1305.014 (“[t]he individual, not corporate and government interests, should have sole jurisdiction over the control and/or modulation of his and her brain states and mental processes”); Richard Glen Boire, On Cognitive Liberty, 1 J. Cognitive Liberties 7 (2000) (founding formulation of cognitive liberty doctrine).

1. Robin L. Carhart-Harris & Karl J. Friston, REBUS and the Anarchic Brain: Toward a Unified Model of the Brain Action of Psychedelics, 71 Pharmacological Reviews 316 (2019), https://doi.org/10.1124/pr.118.017160 (establishing REBUS model; relaxed beliefs under psychedelics; reduction in precision weighting of high-level prior beliefs mediated by 5-HT2A agonism; DMN suppression); Robin L. Carhart-Harris et al., Neural correlates of the psychedelic state as determined by fMRI studies with psilocybin, 109 Proc. Nat’l Acad. Sci. 2138 (2012) (neural correlates of psilocybin; DMN suppression; entropy increase).

1. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (Rehnquist, C.J.) (establishing two-part test: deeply rooted in history and tradition; careful description of claimed liberty interest); Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (Alito, J.) (overruling Roe and Casey; restricting substantive due process to rights deeply rooted in history and tradition; heightening careful description requirement); Stanley v. Georgia, 394 U.S. 557, 565 (1969) (Marshall, J.) (“[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch”; state interest in controlling moral content of thoughts is inconsistent with philosophy of First Amendment); Griswold v. Connecticut, 381 U.S. 479 (1965) (Douglas, J.) (right of privacy in intimate decisions; penumbra of Bill of Rights); Cruzan v. Director, 497 U.S. 261 (1990) (Rehnquist, C.J.) (constitutionally protected liberty interest in refusing unwanted medical treatment; competent person may refuse life-saving treatment); Employment Division v. Smith, 494 U.S. 872 (1990) (Scalia, J.) (neutral, generally applicable laws need not provide religious exemptions; free exercise claim insufficient without hybrid rights); Gonzales v. Raich, 545 U.S. 1 (2005) (Stevens, J.) (CSA application to intrastate non-commercial cannabis cultivation upheld under Commerce Clause and Necessary and Proper Clause).

1. Jan Christoph Bublitz & Reinhard Merkel, Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination, 8 Crim. L. & Phil. 51, 51–52 (2014) (arguing for right to mental self-determination; analyzing government prohibitions on neurointerventions under liberal political philosophy); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973) (Burger, C.J.) (“[w]e reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, is not thought control”; distinguishing Stanley v. Georgia on ground that home privacy right does not extend to commercial public exhibition); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (Roberts, C.J., unanimous) (RFRA compelling interest test applied to specific religious claimant; government must demonstrate compelling interest in applying Schedule I prohibition to particular religious use; general Schedule I designation insufficient).

1. DEA, Established Aggregate Production Quotas for Schedule I and II Controlled Substances for 2026, Docket No. DEA-1568E, 91 Fed. Reg. (Jan. 5, 2026), https://www.federalregister.gov/documents/2026/01/05/2025-24277/established-aggregate-production-quotas-for-schedule-i-and-ii-controlled-substances-and-assessment (psilocybin quota 50,000g; psilocin quota 80,000g; citing need to support clinical trial activity); 21 U.S.C. § 812(c)(Schedule I)(d) (listing psilocybin and psilocin as Schedule I hallucinogens).