The end of Prohibition started in the states. If a ballot initiative here in Michigan is successful, Michigan could lead the nation in helping to put marijuana laws in the same dustbin of history where the federal ban on “demon rum” now resides.
A Detroit-based organization wants to put a constitutional amendment on the ballot that would eliminate all state laws against the cultivation, use, sale and distribution of cannabis plants to anyone over the age of 21. While I am dubious about the measure’s chances of making it to the ballot and passing, I think it is worthy of debate and serious consideration.
As I wrote in a previous column, I am not a marijuana smoker and think regular, recreational use of the drug should be discouraged. Based on what I have seen, I believe immoderate marijuana use is a destructive habit. It can be psychologically addicting and sap the ambition and creative energy out of heavy users. However, I also have seen how helpful cannabis can be for very sick people and I am enough of a civil libertarian to think adults should be allowed to make their own decisions about pot.
I also am persuaded that, whatever one thinks about marijuana, its use is not likely to be stamped out any time soon. On its website,Committee for a Safer Michigan, the group organizing the ballot initiative, says the elimination of “marijuana prohibition” would reduce criminal gang activity; make it easier to restrict access to marijuana by minors; create jobs; save the state money; and free up law-enforcement resources to fight violent crime.
I agree with all of that. It makes no sense to maintain the marijuana trade as a major source of income for criminal gangs when it could be sold in the open, regulated and taxed. And clearly, our police and prosecutors have better things to do than send non-violent offenders to jail on marijuana charges.
The proposed Michigan constitutional amendment would have no impact on federal law. Pot users, growers and sellers would still have to contend with the U.S. Drug Enforcement Administration, the FBI and other arms of federal law enforcement. Given that, one could be forgiven for thinking that the Michigan ballot initiative is a waste of time. But history indicates that the measure could have a big impact in the long run.
In 1919, the federal government passed the Volstead Act, which outlined how Prohibition – enacted under the 18th Amendment – would be enforced. But ominously, states never took it seriously and did little to help the feds stamp out the trade in “intoxicating liquors.” Maryland never even bothered to pass a state-level enforcement statute. Of the 48 states in the union at that time, only 18 allocated money to enforce their prohibition laws. Those that did tended to make only a token effort. New York repealed its statute in 1923, 10 years before Prohibition was eliminated nationwide.
Without the vigorous support of the states, the Volstead Act proved to even more unenforceable than it otherwise would have been. By 1933, Prohibition was gone. The 21st Amendment rendered the Volstead Act unconstitutional and booze became, once again, a major source of jobs and tax revenue.
In the case of marijuana criminalization, state-level cooperation has been a lot better than that it was for Prohibition. In Michigan, for example, selling pot for anything other than medical use is a felony, punishable by prison terms up to 15 years and fines up to $10 million for serious dealers. Like other states, Michigan spends a lot of money enforcing those laws.
But as the spread of state medical marijuana laws shows, the states are already wavering in their commitment to the war on Mary Jane. Several states have already decriminalized it, even for non-medical purposes. In many cases, incarceration has been replaced with civil fines or drug treatment for small-time possession and prosecution of marijuana offenses has been officially made a low priority.
What if that state-level support for marijuana criminalization went away entirely? If Michigan stopped using its law-enforcement resources to prosecute marijuana sellers whose customers are adults, would the feds be able (or willing) to pick up the slack? If the feds took on the task, how many states could they realistically police in that way?
Say what you want about the over-arching power of Washington and its growth over the past 50 or 60 years. The fact remains that the United States still has a robust federal system of government. We also are living through an era in which the appetite for any expansion of federal law enforcement power is almost non-existent across the political spectrum. If the states ever withdraw their own marijuana laws, the criminalization of cannabis will be doomed.
Let me be clear about one thing: I am not advocating that Michigan attempt to “nullify” federal law in this case. As far as I can tell, that is not the intention of this amendment. Regardless of what neo-Confederates and 10th Amendment purists have to say, no state has the right to declare any federal law to be void within its borders. Michigan ought to continue to respect all federal drug laws and cooperate with the federal government in enforcing them.
But if the Michigan amendment passes, the state would no longer be burdened with enforcing marijuana laws on its own books. And if just a few other big states followed our lead, federal marijuana laws could end up as ineffective as the poor old Volstead Act. That, in turn, might give Congress the incentive it needs to turn the whole issue over to the states the way it did with alcohol after Prohibition ended.
To get the amendment on the November ballot, Committee for a Safer Michigan will need to collect just over 322,600 valid petition signatures by July 9. I plan to be a signer.
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