In order to pass new marijuana laws, pro-legalization forces have embraced the same states-rights arguments that pro-gun organizations use.
Last week, I took a glancing look at some of the most dubious gun measures creeping up from state legislatures all over the country since the beginning of the year. The statutory text may differ from state to state, but the theme of those post-Newtown proposals are essentially the same: Under the banner of federalism, expressing alarm at federal power, earnest lawmakers are seeking to use new state laws to prevent law enforcement officials from enforcing existing (and future) federal gun regulations.
At the same time, also in the last five weeks, lawmakers in at least 18 states -- more than one-third of the nation -- have proposed dozens of new marijuana laws that would dramatically alter the way millions of people interact with pot. Again, the details differ from bill to bill. But, again, the underlying theme is familiar: Under the banner of federalism, expressing disdain with federal power, earnest lawmakers are seeking through these measures to erode the scope of federal law, which still classifies marijuana as a dangerous drug that is illegal to sell or possess.
The new generation of gun laws, which run directly counter to national public opinion, is rooted in the fealty of state lawmakers to the 10th Amendment, to the 2nd Amendment, to gun industry lobbyists and to its tribune, the National Rifle Association. And these measures, if passed, would be patently unconstitutional. You can amend or repeal a federal statute, in other words, including of course a federal gun regulation, but as a state lawmaker you cannot seek to punish federal officials who are trying to enforce it.
On the other hand, the new generation of marijuana laws, which represent growing national support for reasonable reform, is a direct result of the stunning election success last November of two legalization measures in Colorado and in Washington. These measures, too, on their face, violate federal marijuana law. And, ultimately, either the federal law will have to change, or these state laws will have to change. That change isn't likely to come first from the courts. It's going to have to come from lawmakers, from Congress, and the White House.
Legalize, regulate, and tax. Since the beginning of the year, lawmakers in Rhode Island, Hawaii and New Hampshire (twice) have introduced legislation that would legalize marijuana for adult use -- along the lines of what voters endorsed in the two Western states. New Hampshire's effort is explicitly infused with that blend of finance and federalism that always seems to inspire conservatives:
In the interest of the efficient use of law enforcement resources, enhancing revenue for public purposes, and individual freedom, the people of the state of New Hampshire find and declare that the use of marijuana should be legal for persons 21 years of age or older and taxed in a manner similar to alcohol.
Rhode Island's Marijuana Regulation, Control and Taxation Act goes even further. Apart from its operating provisions, it is remarkable for its pointed preamble. Here are just three of the 12 paragraphs which form the factual bases for the pending measure:
More than seven (7) decades of arresting marijuana users has failed to prevent marijuana use; a study published in the American Journal of Public Health compared marijuana usage rates in the United States with rates in the Netherlands, where adults' marijuana use and sales are de facto legal, found "no evidence to support claims that criminalization reduces [marijuana] use."
In June 2005, five hundred thirty (530) economists, including three (3) Nobel Laureates, endorsed a study on the costs of marijuana prohibition by Harvard professor Dr. Jeffrey Miron which estimated that taxing and regulating marijuana would yield ten billion dollars to fourteen billion dollars ($10,000,000,000 - $14,000,000,000) in increased revenues and savings, and which called for "an open and honest debate about marijuana prohibition," adding, "We believe such a debate will favor a regime in which marijuana is legal but taxed and regulated like other goods."
There is an alarming racial disparity in marijuana arrests in Rhode Island, with African Americans arrested at nearly three and one half (3½) times the rate of whites in 2009, although their marijuana usage rates were very similar.
And so on. These aren't merely political pronouncements. They are based on nonpartisan facts which federal policy makers (of both parties) have been slow to recognize. They are based also on a sort of logic that has been gnawing at more Americans, and which likely accounts for the growing popular support of legalization: Along the drug spectrum, marijuana is much closer to whiskey and wine than it is to heroin. Colorado's Amendment 64 passed in November in large part because it made explicit the obvious analogy to alcohol use.
Decriminalization. Since the beginning of the year, lawmakers in no fewer than 11 states have introduced legislation either to decriminalize marijuana possession outright or to reduce the penalty for it. Here we see a red state/blue state divide. In four red states -- Texas (where they spell it "marihuana"), Oklahoma (ditto), South Dakota and Missouri -- legislators are moving to reduce penalties. In the other states, all blue, lawmakers have moved to make the possession of marijuana punishable by a fine or even simply a civil fine.
Legalization of medical marijuana use. Twenty years ago, no states permitted the use of marijuana for medical use. Today, 17 states and the District of Columbia have such laws. In just the past few weeks alone, lawmakers in 13 other states have introduced legislation that would either legalize medical marijuana or recognize its use as an affirmative defense in a court of law. Those 13 states, blue and red, are Alabama, Illinois, Iowa, Kansas, Kentucky, Maryland, Mississippi, New Hampshire, New York, North Carolina, Oklahoma, South Dakota, and Texas. Together, they represent 161 electoral votes.
The folks at the Marijuana Policy Project, who track these laws, predict that "comprehensive medical marijuana bills are anticipated in Florida, Minnesota, Missouri, Pennsylvania, Tennessee, West Virginia, and Wisconsin." That's 20 states altogether, this year alone, that will address this issue. If even half those measures pass, it would mean that, for the first time, more states permit medical marijuana than don't. This would be true even though the feds, as both a technical and practical matter, still don't concede that marijuana has valid medicinal value.
Yes sir, it's a whole new world, at least for now, at least so long as Obama Administration officials, and especially Attorney General Eric Holder, continue their hands-off response to these new state initiatives. So far, officials in Denver and Olympia have been talking with federal officials about the new marijuana regulations being established out West -- keeping the feds in the loop, you could say -- while seeking to reassure the White House that the world will not end if states are permitted to experiment with different approaches to marijuana use.
Nor will the world end now that Congress finally is stirring to address the growing disconnect between federal policy, state law, and popular sentiment. This week, two marijuana bills were introduced on Capitol Hill. The Ending Federal Marijuana Prohibition Act, introduced by Representative Jared Polis, a Colorado Democrat, recognizes limited legalization by creating a federal permit that allows a holder to grow marijuana only in states where it is legal. The Marijuana Tax Equity Act, introduced by Representative Earl Blumenauer, an Oregon Democrat, would tax pot sales and use the proceeds to help law enforcement and drug abuse programs.
Will this nascent Congressional interest in the topic back the Justice Department off any aggressive enforcement of federal drug laws? Does the White House really want to stamp out these state experiments on marijuana regulation before they begin, really want to deprive these states of an important revenue stream? And is there meaningful Congressional support for a new federal tax or a new policy that would legalize conduct that has been a federal crime for most of the time our federal legislators have been alive?
I keep coming back to the federalism angle. The marijuana story this year turns on its head all the tired, old political postures. "Tough on crime" or not, conservatives can't honestly oppose the new measures on their face, because they represent core Tenth Amendment activities -- criminal laws, traditionally, are state laws. And progressives who traditionally have been fearful of broadening states' rights suddenly are up against the barricades asking the feds to leave local jurisdictions alone. Something's gotta give.