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The Marijuana Juggernaut Rolls On


Although most media coverage last November was on national elections — and especially the presidential election — most elections are actually for state and local offices. On the national level, voters choose two senators every six years, a president every four years, and a member of the House of Representative every two years. That is it. No one gets to vote for federal judges, cabinet secretaries, or agency heads. But on the state and local level, in addition to governors, lieutenant governors, state senators, and state representatives, there are (depending on the state) judges, supreme court justices, secretaries, attorneys general, comptrollers, school-board members, state commissioners, county commissioners, city council members, and others to be voted on.

One thing that is unique about state elections is the inclusion of ballot questions — initiatives, referendums, legislative issues, and constitutional amendments — that voters have the opportunity to decide. In 2016, there were 165 statewide ballot measures that were certified for the ballot in 35 states. The Arkansas Supreme Court removed three certified measures from the ballot in October, reducing the number of measures voters considered down to 162. Of this number, a majority (71) were put on the ballot by citizens through signature petitions, not by state legislatures (69). Others were bond issues (11), veto referendums (5), advisory questions (3), or legislatively referred state statutes (2). Eight of those measures were decided in elections held during the year, thus leaving 154 measures on statewide ballots in the November election. More than 205 million Americans were affected by the results of ballot measures in the election.

The subjects of the ballot questions were wide-ranging. Voters in four states approved increases in their state’s minimum wage by 2020: Arizona ($12), Colorado ($12), Maine ($12), and Washington ($13.50). Gun-control expansion was approved in three states (California, Nevada, and Washington), but defeated in Maine. Voters expressed support for retaining the death penalty in the states of California, Nebraska, and Oklahoma. Voters in California and Maine passed measures to increase their state’s income tax on wealthy persons. Voters in three states (Colorado, Mississippi, and North Dakota) defeated measures to increase taxes on tobacco, while voters in California approved a tobacco-tax increase.

The most-watched ballot measures were those pertaining to marijuana. The states of Arkansas, Florida, and North Dakota each voted to legalize the medical use of marijuana. The states of California, Maine, Massachusetts, and Nevada all voted to legalize the recreational use of marijuana. Voters in Montana approved an initiative to loosen restrictions on medical marijuana. The initiative in Arizona (where medical marijuana has been legal since 2010) to legalize recreational marijuana failed to pass. What is so remarkable about the marijuana ballot measures is that the use of marijuana for any reason is still illegal on the federal level.

Marijuana on the federal level

The federal government considers the growing, distributing, buying, selling, possessing, or smoking of marijuana to be a violation of federal law. Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act (21 U.S.C. 801). As a Schedule I drug, marijuana is said to meet the following criteria:

  • The drug has a high potential for abuse.
  • The drug has no currently accepted medical use in treatment in the United States.
  • There is a lack of accepted safety for use of the drug under medical supervision.

Other Schedule I drugs include heroin, LSD, ecstasy, and methaqualone. Schedule II drugs, which the federal government considers to be less dangerous than Schedule I drugs, include cocaine, fentanyl, methamphetamine, OxyContin, Adderall, and Ritalin. That’s right: the federal government considers marijuana to be more dangerous than cocaine.

According to a memorandum issued by the U.S. Justice Department for selected U.S. state attorneys regarding investigations and prosecutions in states authorizing the medical use of marijuana,

The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.

Yet, “The Department is also committed to making efficient and rational use of its limited investigative and prosecutorial resources.” Although “the prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs,” pursuit of these priorities “should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” But, on the other hand, since “no state can authorize violations of federal law,” the memorandum does not “alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property” or “‘legalize’ marijuana or provide a legal defense to a violation of federal law.” “Clear and unambiguous compliance with state law” neither creates “a legal defense to a violation of the Controlled Substances Act” nor precludes “investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law.”

According to the federal Drug Enforcement Agency (DEA), “The effect of marijuana on perception and coordination are responsible for serious impairments in learning, associative processes, and psychomotor behavior (driving abilities). Long term, regular use can lead to physical dependence and withdrawal following discontinuation, as well as psychic addiction or dependence.” In addition to arresting Americans for possessing or “trafficking in” marijuana, the DEA has, since 1979, been funding marijuana eradication programs in the states. It now provides resources to support the 128 state and local law- enforcement agencies that actively participate in the Domestic Cannabis Eradication/Suppression Program (DCE/SP). According to the DEA, the DCE/SP “was responsible for the eradication of 3,932,201 cultivated outdoor cannabis plants and 325,019 indoor plants for a total of 4,257,220 marijuana plants.”

In the Supreme Court case of Gonzales v. Raich (2005), the High Court ruled, by a vote of 6-3, that the Controlled Substances Act did not exceed Congress’s power under the commerce clause as applied to the intrastate cultivation and possession of marijuana for medical use. Therefore, the federal government has the authority to prohibit marijuana possession and use for any and all purposes.

Yet there is nothing in the Constitution that gives the federal government the authority to wage war against marijuana and have a Controlled Substances Act, a Drug Enforcement Agency, a National Drug Control Strategy, a drug czar, or an Office of National Drug Control Policy. “The powers delegated by the proposed Constitution to the Federal Government, are few and defined,” wrote James Madison in Federalist No. 45, and “those which are to remain in the State Governments are numerous and indefinite.”

The federal government has been given no authority by the Constitution to regulate, criminalize, or prohibit the growing, buying, selling, or use of marijuana in any way for any reason. The federal government has been given no authority by the Constitution to interfere in any way with the eating, drinking, or smoking habits of Americans. The federal government has been given no authority by the Constitution to restrict or monitor the medical practices of Americans. The federal government has been given no authority by the Constitution to concern itself with the recreational activities of Americans. Actually, the federal government has been given no authority by the Constitution to prohibit the consumption or use of any substance.

When the Progressives wanted the national government to ban alcohol, they realized that an amendment to the Constitution was needed. That is why the Eighteenth Amendment to the Constitution was proposed by Congress in 1917 and ratified by the states in 1919. Although the Eighteenth Amendment didn’t ban the consumption or possession of alcohol, it outlawed the “manufacture, sale, or transportation” of alcohol, effectively curtailing the legal use of alcoholic beverages in the United States.

The National Prohibition Act (the Volstead Act) that was passed by Congress to institute and enforce Prohibition could not have been passed by Congress until after the adoption of the Eighteenth Amendment. It stated, “No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act.” The passage of the Eighteenth Amendment was necessary because the Constitution nowhere authorizes the federal government to prohibit or control the manufacture, sale, barter, transport, import, export, delivery, furnishing, or possessing of “any intoxicating liquor.”

The Eighteenth Amendment was repealed by the Twenty-first Amendment in 1933. But when the federal government subsequently passed legislation regarding drugs throughout the twentieth century and officially declared a war on drugs in 1971, no amendment to the Constitution was ever even proposed.

That means that the federal war on marijuana is a war on the Constitution, the Tenth Amendment, States’ Rights, federalism, and limited government. It should be opposed by all Americans of every political persuasion as destructive to the whole American system of government, even if they don’t share the libertarian view that the drug war is also destructive to individual liberty and property rights.

Marijuana on the state level

But in spite of current federal laws regarding marijuana, the recently passed ballot measures to legalize the medical use of marijuana in Arkansas, Florida, and North Dakota and the recreational use of marijuana in California, Maine, Massachusetts, and Nevada show that the marijuana juggernaut rolls on. The marijuana-legalization train has left the station and it is never going back.

Beginning with Oregon in 1973, 18 states and the District of Columbia have decriminalized the possession of small amounts of marijuana. California became the first state to legalize medical marijuana in 1996. Alaska, Oregon, and Washington joined California in 1998. Maine followed in 1999; Colorado, Hawaii, and Nevada in 2000; Montana and Vermont in 2004; Rhode Island in 2006; New Mexico in 2007; Michigan in 2008; Arizona and New Jersey in 2010; Delaware in 2011; Connecticut and Massachusetts in 2012; Illinois, Maine, and New Hampshire in 2013; Maryland, Minnesota, and New York in 2014; and Ohio in 2016. Medical marijuana has also been legal in the District of Columbia since 2010, Guam since 2014, and Puerto Rico since 2015. Colorado and Washington legalized marijuana for recreational use in 2012. They were followed by Alaska, Oregon, and the District of Columbia in 2014.

The passage of eight out of nine 2016 ballot measures to expand access to marijuana significantly increases marijuana freedom in the United States.

The Arkansas Medical Marijuana Amendment (Issue 6) was approved by a vote of 53.09 to 46.91 percent. It legalizes medical marijuana for 17 qualifying conditions, allows for the establishment and regulation of marijuana dispensaries and cultivation facilities, creates a Medical Marijuana Commission, and allocates marijuana tax revenue.

The California Marijuana Legalization Initiative (Proposition 64) was approved by a vote of 56.14 to 43.86 percent. It allows adults 21 years or older to possess and use marijuana for recreational purposes and creates new taxes on the cultivation and retail price of marijuana to be used for drug research, treatment, enforcement, health and safety grants, youth programs, and preventing environmental damage resulting from illegal marijuana production. Individuals are permitted to grow up to six plants within a private home as long as the area is locked and not visible from a public place. A state license is required for businesses to sell marijuana for recreational use.

The Florida Medical Marijuana Legalization Initiative (Amendment 2) was approved by a vote of 71.31 to 28.69 percent. A similar measure had failed in the 2014 general election. It legalizes medical marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician, allows caregivers to assist patients’ medical use of marijuana, and requires the Department of Health to register and regulate centers that produce and distribute marijuana for medical purposes and issue identification cards to patients and caregivers.

The Maine Marijuana Legalization Measure (Question 1) was approved by a vote of 50.17 to 49.83. It aims to legalize and tax marijuana in Maine as an agricultural product regulated by the department of Agriculture, Conservation and Forestry. It allows persons over the age of 21 to possess and use marijuana, provides for the licensure of retail facilities and social clubs, and imposes a 10 percent tax on marijuana sales.

The Massachusetts Marijuana Legalization Initiative (Question 4) was approved by a vote of 53.57 to 46.43 percent. It creates a regulatory structure called the Cannabis Control Commission, allows individuals at least 21 years old to use marijuana, grow up to six marijuana plants in their homes, and possess less than ten ounces at home and less than one ounce in public. It also subjects retail marijuana sales to state sales tax and an additional 3.75 percent excise tax.

The Montana Medical Marijuana Initiative (I-182) was approved by a vote of 57.64 to 42.36 percent. It repealed provisions of a state law passed in 2011 that required medical-marijuana providers to have no more than three patients, permitted the state to review physicians who prescribed marijuana to more than 25 patients per year, and allowed law enforcement to conduct unannounced inspections of medical-marijuana facilities.

The Nevada Marijuana Legalization Initiative (Question 2) was approved by a vote of 54.47 to 45.53 percent. It makes lawful the purchase, possession, and consumption of one ounce or less of marijuana for persons 21 years old or older and permits individuals to grow up to six marijuana plants for personal use as long as cultivation takes place in an enclosed area with a lock. It also institutes a 15 percent excise tax on marijuana sales by cultivation facilities, mandates a hefty fee for an annual license, allocates tax revenue, and authorizes the operation and regulation of a limited number of marijuana establishments.

The North Dakota Medical Marijuana Legalization Initiative (Initiated Statutory Measure 5) was approved by a vote of 68.3 to 36.2 percent. It legalizes the use of medical marijuana to treat defined debilitating medical conditions, requires patients and designated caregivers to apply for registry identification cards in order to participate in the medical-marijuana compassionate-care program, and develops certain procedures for regulating medical-marijuana growing, dispensing, and use.

In the United States, there are now 28 states and 3 territories where medical marijuana is legal and 7 states and 1 territory where recreational marijuana is legal. The number of U.S. residents living in a state with legal recreational marijuana is now close to 67 million. On the basis of positive things that Donald Trump said about medical marijuana while on the campaign trail, it is unlikely that the Trump Justice Department will devote resources to override state marijuana laws in order to enforce federal marijuana laws.

Marijuana freedom

It is inevitable that the day will come in the United States when marijuana will be treated similarly to alcohol. Right now, government at the federal and state level heavily regulates alcohol, levies an excise tax on alcohol, requires a license to manufacture or sell alcohol, limits the amount of beer and wine one can make at home, restricts where and when alcohol can be sold, and forbids anyone less than 21 years old from consuming alcoholic beverages. There are also many states that contain “dry” counties, cities, or towns where the retail sale of distilled spirits is prohibited. But even though Americans don’t have complete alcohol freedom (as they should), anyone 21 or older can go to his nearest liquor store and buy as much alcohol as he can afford, take it back to his house or apartment, and drink to his heart’s content.

Each election every two years is sure to have more ballot initiatives relating to the legalization of medical or recreational marijuana. And between elections, there will be more state legislatures passing laws to do the same as well as further liberalizing existing marijuana laws, as was done in Montana. And because it is much easier for individuals to grow marijuana at home than to distill spirits, make wine, or brew beer, it may be that Americans will eventually have more marijuana freedom than alcohol freedom. A Gallup poll taken before the election found that 60 percent of Americans now say that using marijuana should be legal. That is the highest level of support for marijuana legalization in the 47 years that Gallup has been asking the question. When the question was first asked in 1969, just 12 percent of Americans were in favor of legalizing marijuana. Green Party presidential candidate Jill Stein and Libertarian Party presidential candidate Gary Johnson were both in favor of legalizing and regulating marijuana for medical and adult recreational use and removing it from the federal drug schedules. The tide is turning.

But why?

There are many reasons why more and more Americans are in favor of legalizing marijuana for medical or recreational use. Some feel that marijuana use can be controlled if the government regulates it. Others think that there are more efficient uses of government resources than arresting people for marijuana possession. Some see the tax revenue that could be generated by legal marijuana sales as a panacea for government budget shortfalls. Others believe that marijuana is not addictive. Some deem marijuana to be less harmful than alcohol. Others insist that marijuana is not a gateway drug. Some claim that marijuana is not inherently dangerous. Others assert that marijuana has important health benefits. Some judge that the cost to society of marijuana prohibition is not worth the benefits. Others maintain that legalizing marijuana will stop the violence associated with marijuana’s being illegal. Some argue that marijuana prohibition is a major factor in police corruption. Others contend that jails and prisons are unnecessarily overcrowded with low-level drug offenders.

Although libertarians may accept some or all of those reasons, they nevertheless see things differently. To libertarians, marijuana legalization is ultimately a freedom issue because marijuana prohibition violates individual liberty and property rights. Libertarians maintain that it is not the business of government at any level to restrict consumption or commerce as long as one’s actions are peaceful and don’t violate the personal or property rights of others. The libertarian goal is complete marijuana freedom. It is an illegitimate purpose of government to monitor what any legal adult puts into his mouth, nose, lungs, or veins or why he does it. It is not the proper role of government to restrict what goods any legal adult can manufacture, grow, cultivate, process, buy, sell, trade, possess, or give away. Libertarians believe in marijuana freedom because they believe in drug freedom. This, of course, does not mean that libertarians recommend that everyone smoke weed, think that marijuana is a medical cure-all, or believe that using pot is harmless.

Libertarians recognize that state laws and ballot initiatives relating to marijuana are imperfect. It is absurd that people have to get government permission to grow a plant. It is absurd that people have to vote for freedom. It is absurd that the government limits the number of marijuana plants one is allowed to grow at any one time. It is absurd that people can’t get the medical treatment that they want. It is absurd that the government regulates the marijuana industry. It is absurd that one must get a government license to sell something. It is absurd that some governments limit marijuana use to medical purposes. It is absurd that one must get an identification card to purchase marijuana. It is absurd that the government limits the number of establishments selling marijuana. It is absurd that one cannot possess the same amount of marijuana in public as in private. It is absurd that the government imposes special taxes on marijuana sales. It is absurd that one must get a prescription to obtain medical marijuana.

Nevertheless, since the chances that governments at any level will enact marijuana freedom are zero, state laws and ballot initiatives that move us closer to the ultimate goal must be welcomed. Drug freedom will not be obtained until we achieve marijuana freedom. And until that happens, libertarians must be willing to accept imperfect state laws and ballot initiatives relating to marijuana because some freedom is better than no freedom and more freedom is better than less freedom.

This article was originally published in the February 2017 edition of Future of Freedom.

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