[Note : This entry was written by my friend Ross Lincoln.]
I’ve always been uncomfortable with the “states’ rights” position taken by many pro-medicinal marijuana, or legalization advocates. While I sympathize with the frustration caused by a wholly insensitive and unreasonable opposition to something so clearly reasonable as the elimination of the penalties associated with Marijuana’s illegal status, (marijuana laws are, for the most part, ill advised and based on shoddy information and for lack of a better word, superstitions), I am forced to accept that the government has the right to outlaw any damn chemical it chooses, including marijuana.(See supreme court decisions of the 1910’s, and the act that created the FDA, for more information on this.)
I support the effort to change the laws as they exist, because, as I said before, the laws against marijuana are stupid. But I am and have always been opposed to any attempts to change these laws on a state by state basis, and I’ve been deeply troubled by the efforts of marijuana advocates to frame the debate in state’s rights terms. Particularly because this position taken by liberals belies an of the utter lack of historical perspective.
The triumph of liberal ideals in the last 100 years would not be possible without the concept that one law rules the land, that it applies equally to all of us, and that law can be changed for the better, to suit the needs and wishes of the greatest number of people. Furthermore, this principle also challenges the idea of xenophobia, since it requires that we agree that we are all Americans, with the same laws, and not just Texans, Tulsans, Angelinos, Californians, or whatever.
Libertarians and conservatives might view the idea of a strong legal authority advocating for the general population as something to be undermined, avoided, and crushed, but liberals should recognize that it’s this central authority, grounded on the principle of civil discourse and the rule of law, that offers the greatest protections to society’s weakest members, as well as the potential for the greatest level of liberty and safety. I think we can all agree that in the last 30 years, we have seen that less government actually means less freedom, less protections, and less civil discourse.
We may not always get everything we want, and sometimes, the bad guys win big too, but overall, it’s a lot better system than the free for all that existed before the civil war, and before the great depression.
The position that the states should have the right to determine their own laws on hugely controversial, possibly constitutional issues, even if those laws overrule federal prohibitions, is identical in essence and in content to the arguments in favor of both slavery and segregation. Of course, I’m not suggesting that a states’ rights victory in favor of marijuana will result in the return of slavery, but I do feel exceptionally strong in my opinion that, if we liberals go around advocating a state’s rights position for the sorts of social changes that we (rightfully) desire and vocally advocate, we’ll soon find that conservatives will start doing it for issues we (rightfully) despise.
My friends who grew up in California, I have found, do not often understand the sheer magnitude of the conservatism of the rest of the country, particularly Texas. It isn’t difficult to see how a successful state’s rights’ position, taken in the issue of Marijuana, could leads to other states challenging other laws on the same basis. For instance, the issue of “religious freedom”, which as we all know is code for making Christianity the official religion of the US.
We’ve seen tremendous legal changes in the last few years, particularly regarding consensual sex between adults. Imagine then, if a state like, oh, Texas, decided to frame the issue of outlawing gay sex as a state’s rights issue., with the Medicinal marijuana as a legal precedent. It might sound far fetched, but check out the Texas Republican party platform and ask yourself if it doesn’t sound plausible.
Now, thanks to today’s Supreme Court decision to let stand a 9th circuit court of appeals decision regarding a doctor’s right to recommend medicinal marijuana as an option, we’re in a completely new legal universe. On the surface, this would seem to be the first time ever that marijuana laws have been substantially reinterpreted to allow for a national discussion, and I for one feel it’s about goddamned time. We can now, I hope, reasonably discuss this issue and perhaps actually get around to making substantial reforms. At the very least, we can start talking about Pot realistically, rather than in the same boring benign “wonder drug”/”evil corruptor” terms we’ve endured for a century.
On the other hand, we may never know precisely why the Most Conservative Supreme Court in the last century decided not to hear a case which would have given them a golden opportunity to rule in favor of the government’s right to interfere with drug consumption in America. I’m wondering if Scalia and Company aren’t thinking along the lines that I am, and have made a calculated decision to let the 9th Circuit decision stand as some sort of legal precedent. Sure, it can be argued that as the court gets more conservative, it will be unlikely to endorse any decision that favors the government over the states. In this legal universe, why should liberals keep trying for government enforced changes to the law?
Well, I think it’s arguable that a hundred years of legal precedent has forced even the most conservative court to pay lip service to the principle of national law superceding state law. However, all it will take is a few counter precedents (is that even a term? You get the idea, I hope), to allow the legal legroom to start pushing things in the opposite direction. After all, Scalia is on record as supporting “states’ rights”. While I hope we’re at the beginning of a new era in mature dialogue about the war on drugs, I fear instead that we’re only seeing the beginning of a massive conservative legal assault. Pardon the joke, but I hope I am only being paranoid.