by Anthony Gregory, CampaignforLiberty
In 1996, California passed proposition 215, allowing for medical marijuana. We have seen similar decriminalization measures in Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Washington and Vermont. President Bill Clinton responded to such liberalizing laws with a series of federal raids on marijuana dispensaries, arresting the sick and their caregivers.
“Compassionate conservative” George W. Bush, running for president in 1999, indicated that he thought states should decide their own medical marijuana policies. Instead, as president he continued the Clinton policy, in direct conflict with the 9th-Amendment protection of rights reserved to the people and the 10th-Amendment guarantee of unenumerated powers being reserved to the states. Although no Constitutional language gives the federal government any legal authority to regulate drugs domestically, much less wage a full-blown drug war, the federal prohibition on marijuana has only been stepped up since 1937 when Franklin Delano Roosevelt signed the Marihuana Tax Act into law, de facto banning the substance.
Barack Obama has repeatedly promised to end these raids, but shortly after he took office, the DEA raided a California dispensary. His administration has yet to comment, despite his vow to stop the raids, his claim that his administration will be more transparent than the others, and the fact that change.gov, which he has touted marks a new style of participatory governance where the citizenry is asked directly what they want to see out of Washington, found that marijuana issues constituted the top priority of those who participated in the outreach program.
Still, there might be some short-term hope. Perhaps this last raid was the result of institutional inertia left over from Bush. Obama’s supporters will hopefully claim that this is not high on the president’s radar, but he will eventually get around to ending this one particularly cruel policy in the federal war on drugs.
But I do not share this optimism. Obama has surrounded himself with ardent drug warriors. His Vice President Joe Biden was instrumental in Plan Colombia, the crop eradication policy that has destroyed the livelihoods and health of poor farmers at the cost of billions of U.S. taxdollars, and he was a big proponent of the creation of a federal drug czar position. Obama’s Chief of Staff Rahm Emanuel has long been a vociferous drug warrior, who attacked Bush’s Attorney General Alberto Gonzales for being too rhetorically soft on the issue! Eric Holder, Obama’s Attorney General pick, has notoriously championed increased penalties and enforcement.
Furthermore, there is the question of ideology. Barack Obama, an establishment liberal, tends toward embracing federal power. When medical marijuana and states rights got to the Supreme Court in 2005, all of the liberals on the court, along with conservative Antonin Scalia and moderate Anthony Kennedy, supported the right of the federal government to impose its way on the states. Scalia favored it because he was so philosophically wed to the drug war, but the liberals favored it because they knew that the 10th Amendment’s limits on federal power, if upheld in this one case, could eventually spell disaster for all the domestic New Deal and Great Society programs they love. Of those dissenting and defending California’s medical marijuana laws against federal usurpation, Justice Clarence Thomas, one of the court’s most conservative jurists and not at all a civil libertarian (see his incredibly pro-executive power dissents concerning the handling of detainees in the war on terrorism), gave the most stirring rebuke of the majority ruling:
If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.” . . .
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”
So we have it that on the grounds of legal philosophy, the constitutionalists are sounder on this particular issue, and the liberals and Obama administration will probably not end the raids as a matter of constitutional principle. But perhaps Obama, while believing he has the constitutional right to engage in the raids, will still think they are bad policy.
On every other drug war question, including mandatory minimums and foreign policy with respect to opium and Afghanistan and cocaine in Latin America, I do not expect much from Obama, but there is an off chance he will end the raids. But I still think it is unlikely. If he ends those raids without actually changing federal marijuana law, the federal government has a weaker claim that it can and should supercede the states on recreational marijuana, drugs in general, or indeed almost anything else over which the federal government fails to have express constitutional jurisdiction.
Then there is the question of image. President Jimmy Carter appeared poised to reform drug law, but then Peter Bourne, Carter’s Special Assistant on Health Issues, who was in charge of drug policy, was caught writing an illegal prescription for a fellow member of the staff and was the subject of rumors regarding cocaine use. He resigned and Carter backed off from any reform. Under President Clinton, who had admitted trying marijuana, marijuana arrests doubled and the drug war was stepped up. Obama has also admitted to experimenting, and being a Democrat suspected of being soft on crime, he might find it most expedient to ratchet up the drug war to prove his toughness, regardless of what he personally believes about the issue.
There is one way I could see real change coming soon on this issue: If society and the government become so bankrupt that lawmakers decide to decriminalize and tax marijuana and other drugs, as they did with alcohol as the Great Depression came into full force. I doubt they will become so desperate, however, and the financial cost of the drug war is relatively small compared to the power it provides to the federal government, which they will want to preserve.
Moreover, because the Americans did not learn the full lesson from alcohol prohibition, its end in the early 1930s was soon followed by the rise of marijuana prohibition and the federal drug war, none of which even had the constitutional legitimacy that the liquor ban did under the 18th Amendment. For those who want a meaningful change in drug policy and to avoid the emergence of something just as bad in its place, hope comes not in a wishy-washy establishment politician like Obama, but rather in a shift of public understanding on the role of government. First off, the philosophical foundations of drug prohibition should be questioned. A free society strives for laws that protect person and property and do not police peaceful behavior, however socially deviant or personally destructive, in such an arbitrary and violent way. Second, the constitutional limits on the federal government must be much better acknowledged and respected. If the U.S. government is meant to police and micromanage the nation, disastrous federal crusades like the war on medical marijuana are inevitable; if the federal government were constrained under federalism, drugs would be regulated locally and by the states, and nothing like the current militarized and gigantically wasteful and counterproductive drug war would persist.
Americans have, according to most polls, moved toward skepticism of current drug policy, especially on issues like medical marijuana. Most Americans know the drug war is a failure and do not want to see sick people jailed for using alternative medicine. Washington does not reflect this popular understanding of the issue. But the public needs to think even more seriously about this, from the standpoint that liberty should be culturally respected and the federal government should be constitutionally limited. Down that path of thinking is the bluprint of a consistently freer, more just and more workable society, one where not just the rights of medicinal marijuana patients are protected, but where everyone’s right to live his or her life in peace is secure. The drug and medical marijuana issues are thus related to all other political issues in social life. The answer, as always, is less government, less centralism, and more individual freedom. A consistent understanding of this vision will help the drug reform movement succeed better, for as long as it depends on liberal politicians, who are devoted to the notion of federal power as a matter of course, the victories it can claim will be few and far between.