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Legalize It! Historic Night for Marijuana Reform as Colorado and Washington Take the Big Step

Massachusetts joins the drug reform current sweeping the nation.

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Washington vs. DC, Colorado vs. Congress?

The Washington and Colorado votes are a political milestone, the strongest challenge ever to U.S. marijuana prohibition. However, they will provoke a direct conflict with federal drug laws. It is a well-established legal principle that federal law supersedes state law, and neither the courts nor the Obama administration have bent on this.

In 2005, the Supreme Court ruled that the federal government’s power to regulate interstate commerce authorized it to ban even donated homegrown medical marijuana, which the plaintiffs argued was neither interstate nor commerce.

In 2011, federal prosecutors sent letters to the governors of Arizona, Colorado, Montana, Rhode Island, Vermont and Washington, threatening that if they set up a system to license and regulate medical-marijuana cultivation and distribution, state employees working in it might face federal drug-trafficking charges. Washington Gov. Christine Gregoire vetoed one such proposal after the state’s two U.S. Attorneys told her they would “vigorously” prosecute “individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”

As the Colorado and Washington laws would permit both growing and selling marijuana without the justification of medical use, state employees involved in regulating them would face similar risks—as, obviously, would anyone running a cannabis farm or ganja store.

“We hope the federal government will let Colorado and Washington be the laboratories of marijuana policy,” responds Art Way.

President Obama, says Allen St. Pierre of the National Organization for the Reform of Marijuana Laws, “has an opportunity to do nothing. He can help these states legalize by doing nothing.”

St. Pierre finds it encouraging that the Obama administration did not speak out against the initiatives—unlike the Clinton and Bush administrations, which campaigned against medical-marijuana initiatives, or even Obama’s in 2010, when Attorney General Eric Holder spoke out against California’s Proposition 19 legalization initiative.

Ethan Nadelmann makes the same point. As the Colorado law won’t permit sales until mid-2013, and Washington will take a year to develop its regulations, he hopes the administration will take a wait-and-see approach.

Will the victory of these two initiatives set off a major political change, a spurting leak in the dike of prohibition? Or would the prohibitionists in power become more intransigent? Public support for marijuana legalization has been steadily growing. It has reached 50 percent in recent polls; in 1969, when Gallup first asked about it, it was 12 percent. On the other hand, there are currently more members of Congress who question the circumstances of President Obama’s birth than who have openly endorsed legalizing marijuana.

St. Pierre has long bemoaned the “huge disconnect” between popular sentiment and legislative action on pot issues. But “unless our system is totally dysfunctional”—a possibility he doesn’t rule out—he hopes that everything from “the amount of cannabis tourism that’s about to happen” (and the tax revenues it will bring states) to demographic changes will intensify the pressure to change the laws. Baby boomers and younger people are far more likely to support legalization than the shrinking number of older people who came of age before weed was widespread, he notes. Colorado and Washington could help by becoming exemplars of well-regulated reefer sales.

“The prohibition days are done,” he says. “I don’t say that in a cocky way, I say it analytically.”

Both he and Nadelmann see a parallel with gay marriage, a once-taboo issue that gradually gained public support and eventually won legal recognition. The federal prohibition is a clear obstacle, says Nadelmann, but “the momentum and the trend lines are on our side. We have public opinion, the notion of deference to responsible state and local laws, and the fiscal, public-safety, public-health, and moral arguments. We have all the arguments on our side, with the exception of the supremacy clause of the Constitution.”

 
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