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The End Of Prohibition And State's Rights

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For people opposed to our current national Policy regarding marijuana, it has been an interesting couple of months. Secretary of State Clinton’s “shocking” admission that the problems stemming from the drug trade are in large part because Americans Like Drugs is the most recent, but most startling was
newly minted US Attorney General Eric Holder articulation of the Obama administration's position on medicinal marijuana: Tepidly hands-off. They will no longer raid or prosecute Medical marijuana distributors who are in full compliance with their state's laws governing such activity. Of course, that’s the crucial distinction. Normal criminal penalties will apply for recreational distribution and use, except, maybe not! So far, no official opinion has been offered on Massachusetts' recent decriminalization law (or others pending like it), so it remains to be seen how the Obama administration will choose to act. Marijuana remains illegal on the federal level, but, if their stance on medical herb is any indication, we might see a patchwork legalization/decriminalization legal framework, which means, of course, state by state by state.

For many of us opposed to prohibition and the War on Drugs, and equally enthusaistic about the Feds leaving their Grubby Mitts off of our rights, this approach has its appeal. More than one commenter (even here on LAist) has offered variants of “Leave it to the states”, or “states rights” when discussing the frustrating reality of America’s drug policy. And it is understandably galling that the moralizing know-nothings who dominate this country’s discussion of drugs have managed to make it impossible to have an honest conversation about this subject. Especially when you consider that, if their numbers are comparable to their appearance in the debate on gay rights, or the Bush Administration, this means they probably amount to less than 30% of the electorate. Yet, on the other hand, these very same know-nothings are the same fine people who have insisted for decades that they just want to be left alone, that they’re opposed to the gummint imposing outside mores on them that supersedes local values, etc etc etc. We’ve heard it so much that it almost sounds like they’re telling the truth. “If” one is tempted to ask oneself, “they can feel like that, why can’t we? Perhaps, by legalizing or decriminalizing on a state to state basis, gradually the tide will turn and the law will be amended to reflect the changing national opinion.”

This is Bad logic.

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Before we get into that, let’s pause to assess the situation we’re currently in. It's 2009, and The War On Drugs has just turned 40; as is customary at this point in one's life, it's time to take stock of the situation and see Where Things Stand, and What We Have Accomplished. It is, unfortunately, time to face facts: If it were a person, it would be advisable for the War on Drugs to consider returning to school and trying a new career because, by any measure, it has been a triumphant failure.

So, what do we have to show for 4 decades of tough on crime smackdowns and prohibition? Stiffer penalties, for one thing; louder hand wringing, increasing acceptance of zero tolerance laws that all but flaunt their un-constutionality, an irrational fear of beneficial painkillers1, for others. There's also the constant drum beat of success that mirrors coverage of the war in Iraq. Year after year, month after month, we're treated to gasping, hyperventilating news reports about huge busts that yield tons of product, arrests that bring in the upper management of the largest cartels, of property seizures totaling in the millions, all of which are heralded as proof that the war is working and that we're winning.

And yet, our eyes and ears tell a different story. We know, of course, that despite our decision to treat drugs and drug users with the same heavy hand once reserved for pedophiles and traitors - the United States is the world's largest incarcerator, with more than 2 million people currently behind bars, the majority of whom are there for drug related offenses - America remains the world's largest consumers of illegal drugs. All of us know (or are) people who use illegal drugs on a regular basis. You name it and there's approximately a 50% chance that we've tried it... at least once. And that's a wide range of drugs, from pot, to cocaine, to meth, to scrips... it’s a stunningly diverse appetite one wouldn't think possible of the American people, considering the sugary blandness of our taste in food, in television, in politicians.

This appetite has of course made the world objectively worse. Columbia, for example, was nearly destroyed in the 80s, thanks largely to the massive profits generated by America's appetite for cocaine that funds right wing paramilitary groups, massive Cartels and a lawless anarchy in which figures like Pablo Escobar, who assassinated half of the Columbian Supreme court in a bid to stay out of jail, managed to get the law changed to prevent him from ever being extradited and Ultimately had to be rubbed out by Special Forces. Nowadays, Mexican cartels, funded with American dollars, armed by American weapons, have taken over the trade and have managed to bring entire regions of their country under their control. More than 6,000 Mexican deaths were directly attributable to Cartel violence in 2008 - that's dealers, civilians and cops, your cocaine dollars at work.

Moral scolds might claim that this violence is purely the fault of people who use and who supply, and it is true that Americans who purchase drugs are giving, with every dollar they spend, their tacit approval to the means by which those drugs were delivered to them (something self righteous vegans with an appetite for coke might consider more often than they do). But this only serves to obscure the real problem, which is that the violence in Mexico and elsewhere isn't because of drugs per se, but because the illegality of drugs. Otherwise, Budweiser would be shooting up the Coors bottling plant... and bootleggers would be roaming the countryside. In truth, our quixotic quest to rid society of an unauthorized good time has had only one unqualified success: driving up the price of the product to the point that almost any risk or atrocity pales by comparison to the fabulous fortunes generated day upon day.

With this in mind, you might think Americans might finally be ready for honest self assessment, to at least, admit that we do, you know, get high. And we are, somewhat. For instance, a month ago the White House held an online forum in order to allow people to select questions for President Obama to address. Thanks to some culture jamming by pro-legalization advocates, the most popular question was whether the legalization of pot might be considered as a means of stimulating the economy. Predictably, Obama's response was essentially "um, no". This was an understandable disappointment for those of us who had hoped for a more substantial response. However, it's reasonable, I think, to suggest that the fact that he felt not only compelled to address the question, but allowed to even acknowledge its existence says, I think, lots about the growing willingness to at least consider looking at the situation differently.

But the willingness to do so shouldn’t include adoption of failed tactics and rhetoric from the opposing side.

First - To put it bluntly, this question was settled rather decisively when General Sherman burned a 3 mile wide swatch of destruction from Atlanta to Savanna in 1864, but we’ve been having this fight since the 1790s and the result is always the same: Federal Law always, always trumps state law. The Nullifiers were wrong on this point, the Confederates were wrong, and the Segregationists were wrong. Each and every time local ordinances have come into conflict with Federal law and locals have pressed the point, they’ve learned rather dramatically that the Feds are in charge. This is not something we can wish away, even when the notion benefits us. States’ Rights = Epic Constitutionality FAIL.

Second, and more importantly, this position is a lie. It’s a lie when liberals use it, and it’s a lie when conservatives use it. People who make these arguments never, ever believe it. Pro Slavery assholes certainly didn’t. They might have made noises about States’ rights, (and they damn sure clung to the point after they lost the war, knowing all too well that it’s not a noble failure to lose a war you started to keep your slaves in chains), but they challenged anti slavery laws every chance they got precisely because their goal was to legalize slavery everywhere so that it could never be made illegal anywhere. Ditto Jim Crow, during which time racists fought all the way to the Supreme Court for their right to segregate (Sadly, a racist SCOTUS agreed with this, and later an even More Racist Woodrow Wilson made Southern Style racism the law of the land).

The truth is, “States’ Rights” has traditionally been the fallback position for bigots and thugs who don’t have the courage to admit that they want to impose something odious and terrible on the rest of the country, or who recognize the disgust that the rest of the nation has for their horrible institution and wish to change the subject so the conversation can be about process instead of policy. It’s the reason why, nearly 150 years later, we still aren’t allowed to state the truth of the civil war outright - that the South started it to protect the institution of slavery, and nothing, not even tepid support for abolition in the North, can change the fact that this is the only reason they seceded and the only reason they started the war that killed a million people - without instant apoplectic denials from liars, or useful idiots2. Such people like to pretend that because Northerners were also racists, this means the South didn’t kill a million people to keep their slaves.

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Aside from local supermarkets, local clothing stores, local bands and so forth, none of us really believe that something we consider a positive moral outcome is satisfactorily applied locally and nowhere else. And why should we? We are the United States of America, not the Roughly Aligned Entities With Barely Any Legal Relationship Of America. This is, as we’re so often reminded by self satisfied TV pundits, a Nation Of Laws and laws should be applied universally, not patchwork.

Whether your goal is to end prohibition entirely or partially, or simply to make medical marijuana legal, your tactic should be the same - think locally but act nationally. The state-by state approach has its merits, but it is an impotent strategy without equal action taken to elect national legislators willing to challenge the nation’s anti drug orthodoxy. As long as it remains politically dangerous for even the most liberal politician with national aspirations to align him or herself with ending prohibition, all the state laws in the world won’t change the fact that the second a less sympathetic President is elected, that President’s Justice Department will begin cracking down on medical distributors like they’re selling crack to teenagers.

In short - we need to abandon any attachment to the idea of State’s Rights. It’s not only constitutionally suspect but incredibly short sighted: by leaning on this terrible idea in support of things that are good, we lend dangerous credibility to people use it in support of things that are, well, wrong. Just ask Glen Beck. Or Texas' Governor Perry. Or Tim McVeigh.

Photo by KayVee via Flickr.


1) True story: from 7th grade through 10th grade I suffered from frequent, debilitating migraines. Those of you who have experienced real migraines know how awful they are: the awful visual hallucinations that block your vision entirely - the olfactory hallucinations (terrible odors, BTW); followed by the worst headache you’ve ever had, lasting several hours until the headache goes away and is replaced by wrenching nausea and dry heaves. For me it was an 8 hour commitment to crippling misery. I used to beg my mom to take me to a doctor and get me prescription for a painkiller that worked, or at least a sleep aid so I could be knocked out for it, but she was too terrified that I’d get addicted to pills and so I was forced to suffer through with only the pathetic assistance of Tylenol to get me through. However, earlier this decade I experienced a terrible migraine headache as bad if not worse than anything I experienced as a kid. I took a Vicodin and as if by magic, migraine was replaced by bliss. Mysteriously, I remain un-addicted to this day.

2) Cue the fireworks in 5... 4... 3...