Josh Marshall Is in His 40s Now, So Pot Prohibition Suddenly Makes Sense

Josh Marshall, who confesses that he did not really pay attention to Proposition 19 until after the election, says he "probably would have voted against it" for "two reasons." Reason No. 1:

Unless I'm missing something, it amounts to nullification. The federal government seems like the competent authority to regulate this question, even if I think our drug policy is a disaster. Federal laws trump state laws, even when you don't like them.

Yes, Josh, you are missing something. First, the Constitution does not authorize the federal government to ban the intrastate production and sale of any intoxicant (or any other product), which is why alcohol prohibitionists went to all the trouble involved in passing the 18th Amendment. Second, even if you accept the absurdly broad reading of the Commerce Clause that led the Supreme Court to uphold federal enforcement of marijuana prohibition in states that authorize medical use of the drug, the Court has never held that states must duplicate every law Congress passes. State legislators have no obligation to punish everything that Congress declares a crime. Even during alcohol prohibition, some states either never passed their own versions of the Volstead Act or decided to repeal them before the 21st Amendment was ratified.

Here is Marshall's Reason No. 2 for probably voting against a ballot initiative he did not give much thought to until after it was defeated:

I just don't know if I think marijuana should be legalized at all. Maybe it's that I'm getting into my 40s. And maybe I'm a hypocrite. I of course know people who smoke grass. And I don't have any problem with it. Decriminalized? Yes, I think probably so. But that's not the same as legalization. It's very different actually. And let me be clear that I think our drug laws are catastrophic. They create endemic violence first in our major cities and now along the borders and it's led to generations of Americans rotting in prison. The whole war on drugs is an unmitigated disaster. And the fact that people can't use marijuana for clear medical reasons is crazy. But do I think it should be like alcohol? Anyone over 18 or 21 can buy it?

I remember, many years ago, talking to my father about the idea of legalization. And bear in mind, my Dad, God bless him, smoked a decent amount of grass in his day, said he didn't like the idea. One reason is that he was already a bit older by that time. But he had this very contradictory and hard to rationalize position which was that he was fine with people smoking pot but keeping it at least nominally illegal kept public usage in some check. Again, how to rationalize that in traditional civic terms? Not really sure. But frankly, I think I kind of agree.

To tell you the truth, I'm not even sure you can call this a reason. Marshall's inarticulate resistance to legalization is especially maddening became he claims to agree that "our drug laws are catastrophic," leading to black market violence and unjust incarceration. Neither of those problems can be solved through "decriminalization," which in the U.S. typically means letting users off with a modest fine instead of jail time. As long as supplying users with the drugs they want remains illegal, the violence and incarceration will continue. And under what moral theory do people who smoke pot deserve little or no punishment, while people who merely help them do so deserve to spend years in prison? I cannot fathom how anyone, let alone a self-identified critic of the war on drugs, can suggest that such an outrageous violation of liberty is justified to guard people's sensibilities by keeping "public usage in check." And I'm in my 40s too, so I'm not accepting that excuse.

Marshall's complacency may stem from a sense that marijuana basically has been decriminalized already. After all, his friends aren't getting busted for pot. Yet last year more than 858,000 Americans were, and they were disproportionately members of minority groups—the sort of unequal legal treatment that usually bothers progressives.