With the legalization of marijuana in Colorado and Washington the role of pot in the issue of states rights jumps to the fore front. This is not an easy issue to decide. On one hand we have the electorate of two states voting to legalize marijuana for recreational purposes. Several other states have voted to allow medicinal weed but in all the above the Federal law still hasn’t changed and that brings us to the issue of States rights. Under the Supremacy Clause in the U.S. Constitution federal law trumps states laws. Under which the Federal government can continue to prosecute and pursue offenders of which would be considered legal under state law. So far in exercising this under current Federal law the Justice Department has been going after dispensaries and not individual users. Part of the reason for that is a question of resources not law. I don’t know about anyone else but depending on the Feds to lack resources is not a defense when it comes to bad law.
This brings us to the first of a few fundamental questions. Is the prohibition on marijuana bad law. This is actually a yes and no question. As science and technology has progressed there has been many studies that have shown the benefits of Mary Jane. Technology has tried to compensate for the law by providing synthetic, orally taken versions but these seem to have little to no effect on the use as opposed to the more traditional ways of ingestion. That is not to say there are negative effects of smoking marijuana as there are as many studies that show there is. Honestly I can’t say if the benefits outweigh the negatives but from the point of view of common sense if there are more benefits then negatives then marijuana should be legal or legalized. Yet, that doesn’t mean that prohibition or the banning on producing and using it isn’t bad law. This is because the cost are not so cut and dry as we like to believe. Millions and millions of dollars have been spent in the drug war to little effect on the use of marijuana. From the statistics I have seen marijuana use, always ebbing and flowing had steadily grown over the years verses other drugs like heroin and cocaine whose use has declined steadily. For me I can say I don’t think it is bad law just misguided law.
The second question is does the Federal government have the right to regulate drug use. Now this to most would seem like a no brainer but for some it is more complicated. Personally under the section that contains the words “Provide for the General Welfare,” in the U.S. Constitution I would have to say they do indeed have the power and the right to regulate drug use. According to previous SCOTUS rulings rights of the individual can be curtailed in the case of public safety. Example would be not yelling fire in a crowded place. Obviously drug use would fall under the guise of public safety. So for the most part the Feds do have the right and power to regulate drug use under the element of protecting public welfare. Still it isn’t so simple as shown when we tried alcohol prohibition. Again millions were spent but it was in the end ineffective.
The last and perhaps the hardest of all the questions is don’t the voters have a say in legalizing marijuana for their state? Fortunately at least one part of this question is in debate. As long as the weed doesn’t pass state lines it doesn’t fall under the Commerce Clause do we don’t have to worry about that, at least not yet. Back to the question though it is complicated by the fact that while the states would seem to be able to vote up or down legalization the ultimate test comes when it buts up against Federal law. As much as we want to believe that voters have the right to what happens in their own state, reality says something different. The only way to really legalize it would be the elect the right people to Congress and then pass Congressional legislation to legalize marijuana. As it stands right now if the subject went to court I am afraid that all would happen is the eventual ruling from SCOTUS would be that Federal law trumps State law even when passed by a majority of voters. As such it would overturn the state law and recriminalize marijuana use even for medicinal states.
Ultimately Congress is going to have to decide this issue for legalization or pursue a legal direction to protect prohibition of weed use. Either way they will be winners and losers and that can’t be prevented. Personally I think marijuana should be legalized, and taxed while at the same time pursuing a program to limit its use by public awareness.