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Proposed bill to lift ban on marijuana would return prohibition, selling power to states

Staff Reporter

Published: Tuesday, February 12, 2013

Updated: Tuesday, February 12, 2013 01:02

Colin Harris | The Houstonian

Colin Harris | The Houstonian

Congressman Jared Polis (D-CO) introduced legislation last week that would radically change how marijuana is regulated by the federal government. If the Ending Marijuana Prohibition Act passes, pot will no longer be covered under the Controlled Substances Act and prosecuted as a dangerous drug by the Justice Department’s Drug Enforcement Agency.

Instead, weed will be under the purview of the renamed Department of Alcohol, Tobacco, Marijuana and Firearms. In essence, the legislation would serve as a de facto legalization of cannabis at the federal level, while the burden of prohibition and prosecution would shift to individual states.

Polis’s proposed law welcomes development for anyone who believes the federal ban on marijuana is a haggard relic from when the desired role of the United States government is to maintain a rigid morality on a dynamic public through edicts and prohibitions.

Regardless of one’s personal opinions on marijuana use and consumption, there is little case to be made to continue the nationwide ban when states and municipalities throughout the country are already steadily creeping away from the obsolete prohibition.

As it stands now, a disconnect exists between the laws of states like Colorado and Washington, which have legalized recreational weed consumption, where the federal government prohibits the possession and sale of marijuana. The CSA also classifies marijuana alongside heroin, acid and ecstasy as a Schedule I drug, the most stringently policed category under the act.

Constitutional federal law always trumps state laws, so even though the people of Colorado and Washington voted last year to amend their state constitutions to end the modern prohibition, possessing or selling the drug is still a federal crime in these jurisdictions.

It’s not double jeopardy, just the Supremacy Clause of our Constitution functioning as it was written and until federal marijuana laws are overhauled, statewide legalization movements are of little consequence.

If Polis’s proposition were to pass, marijuana would be regulated and policed on a state-by-state basis, much like alcohol, with expensive federal prosecutions reserved for crimes like interstate trafficking and fraud. Liberal states, such as Colorado and Washington, would be free to craft libertine marijuana laws appropriate for their populace, while conservative states could maintain their moral sensibilities via the status quo of prohibition.

Esteemed Supreme Court Justice Louis Brandeis described the federal system as one whereby "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Brandeis’s prescient understanding belies federal marijuana laws already on the books.

In instances of moral ambiguity, the ideal function of the federal government under Brandeis’ assumption is to cede jurisdiction to the state legislatures. Failed policies are insulated from the rest of the nation, legislators face more direct accountability from a smaller voter pool and the public has the ability to "vote with their feet" by moving from one state to another to flee unpalatable laws. Without significant reform, any desire by state lawmakers to reasonably craft cannabis policy for their varied constituencies is immediately squelched by a one-size-fits-all edict created over 40 years ago.

Reefer madness ended nearly a half-century ago, the Controlled Substances Act still reigns today without mercy. Not only are current statutes outdated, but with more states liberalizing their own marijuana laws, they’re unfriendly to state sovereignty and undermine our federal system.

The Ending Marijuana Prohibition Act is by no means a panacea for our nation’s drug policy problem, and even if it’s passed, marijuana will remain illegal for most of the nation. However, the bill is certainly a step in the right direction, as it puts the responsibility on each state to craft marijuana policy best-suited for its citizens.

To borrow Brandeis’s words, it’s past time to permit courageous states to experiment with marijuana.

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