The production, trade, and consumption of marijuana (cannabis) by adults should be perfectly legal. Period.Yet having said that, the U.S. has a long history of drug restriction begining with the Harrison Narcotics Act (1914) which regulated many so-called “hard” drugs. Interestingly marijuana was excluded from the law. At the state level, Massachusetts enacted the first statewide cannabis prohibition in 1911 followed by California in 1913. Prohibitions soon spread throughout New England and then to most of the country by the early 1930s. The general public hostility to marijuana use (nurtured by media hyperbole) climaxed with the passage of the federal Marijuana Tax Act in 1937.
The prohibitions against marijuana were expanded in 1970 when Congress passed the Controlled Substances Act (CSA) which classified cannabis as a “Schedule 1” drug (like heroin). Schedule 1 drugs, supposedly, are those with “no accepted medical use” have a “high potential for abuse” and lack any “safety” profile.
Ironically a provision in the CSA called for the creation of the National Commission on Marijuana and Drug Abuse (known as the Shafer Report) which concluded (1972) that marijuana use was not dangerous or harmful and should be decriminalized. That recommendation went nowhere. Indeed, the Congress did the exact opposite; they legislated the Drug Enforcement Agency (DEA) in 1973 and the so-called “War on Drugs” began with a vengeance under President Nixon.
Since the late 1970s, however, regulatory attitudes toward cannabis have shifted markedly. Despite the strict federal prohibition, various states have permitted (through legislation or constitutional amendment) the consumption of small amounts of marijuana for recreational and medical purposes. A recent tabulation finds that at least 23 states have some sort of a medical marijuana law (Florida’s proposed constitutional amendment in 2014 on medical cannabis did not pass) while several others have either decriminalized pot use and/or “legalized” it (e.g., Alaska, Colorado, Oregon and Washington).
There are, of course, several important political problems with all of this. The first and foremost, as I stated earlier, is that the production, trade, and consumption of drugs by adults should be perfectly legal. In a constitutional republic like the U.S. with a strong tradition of respect for individual rights, there is (or ought to be) a strong “presumption of liberty.”This means that adults should be free to engage in ANY personal activity or exchange as long as fundamental rights are not violated.
And it is not obvious that smoking or growing cannabis violates any fundamental rights; indeed, a general prohibition on such activity always reduces the scope of rights.
Second, the attempts by some states to legalize” majijuana, while laudatory, fall far short of any genuine “free market. Some states only permit marijuana use for strictly “medical” purposes; in addition, even in those states which have “legalized” majijuana, the language and regulation in the laws and constitutional amendments has often proved arbitrary and unworkable. As a consquence, the production and consumption parameters for cannabis in most of the states that have attempted to liberalize the strict federal prohibition are still fairly narrow to say the least.
A third problem is that federal and state policies toward marijuana are now in irrevocable conflict. Cannabis is an illegal product under federal law and federal law can, under certain circumstances, trump state law. In theory at least, the current Justice Department and DEA (or any new Administration in 1916) could legally challenge all marijuana liberalization at the state level. On the other hand, the Congress has recently instructed the Obama Administration that it will not authorize funds for any general federal interference with state deregulation of marijuana. Nonetheless, major public policy ambiguities persist and there is still no general “rule of law” on cannabis especially with respect to any wide-spread commercialization.
A principled and practical first step toward a more rational majijuana policy is to end the federal Schedule 1 classification for marijuana. The original classification was put in place without any medical science whatever. But this is now 2015 and more than four decades have passed to allow a more sober and informed judgment. Politicians and law enforcement officials who assert that we can’t move forward on this issue until there are more cannabis “studies” are sadly misinformed. There have now been thousands of (medical) journal articles evaluating various aspects of the safety and therapeutic efficacy of cannabis. Indeed, the plant has been studied far more than most drugs approved by the FDA.
For example, an analysis of several of the most important clinical cannabis trials published recently in the peer-reviewed Open Neurology Journal (2012) concluded that “based on evidence currently available the Schedule 1 classification for cannabis is not tenable.” I agree. Ending Schedule 1 (which can be done by the Attorney General, Congress or by an executive order) would go a long way toward allowing states to enact more rational and common sense public policies toward marijuana.
