In a recent ABC News special, John Stossel interviews New York City police officers who are watching a protest by opponents of the war on drugs, waiting to catch anyone who dares to light up a joint. When he asks if there might be a better use of their time, they admit that pot smokers are hardly a public menace.
Stossel presses the issue: Then why is marijuana illegal? One cop shrugs, saying he just enforces the law; he doesn't write it.
This fall in Nevada, police officers will have a chance, along with their fellow citizens, to rewrite the law that forces them to arrest marijuana users. They will vote on Question 9, a proposed constitutional amendment that would legalize possession of up to three ounces of marijuana by adults.
The recent endorsement of the measure by the state's largest police organization, the Nevada Conference of Police and Sheriffs (NCOPS), has provoked a public outcry that may prompt the group to reconsider. But the argument that convinced NCOPS remains sound.
"As a former law enforcement officer," said NCOPS President Andy Anderson, "I know that a simple marijuana arrest [could] take me off the street for several hours and sometimes for over half my shift….We could better spend our time responding to more life-threatening and serious incidents….Passage of Question 9 will ensure that more cops are on the streets to protect our citizens from violent crime and the threat of terrorism."
The flip side of this message is that otherwise law-abiding people who smoke marijuana do not deserve to be arrested, jailed, or fined. As the Las Vegas Review-Journal, the state's largest newspaper, put it in a July 7 editorial, "the measure would end the needless harassment of individuals who peacefully and privately use marijuana."
Polls indicate that voters are evenly divided on the initiative, which would allow the sale of marijuana in state-licensed shops. Even if it passes this year and in 2004 (as required for a constitutional amendment), that won't be the only hurdle. As Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws, observes, "It is highly unlikely the federal government would allow a state to create a legal market for the sale of drugs."
Yet federal drug czar John Walters, who spoke out against the initiative in a visit to Las Vegas last month, indicated that the national government would not try to impose its will on Nevada. "That's not our intent," he said. "People have a right to make their own decisions."
Presumably Walters was referring to a choice of drug policies, not of intoxicants, but even that concession was surprising. "I don't believe you'll see federal officials coming into [Nevada] to enforce possession laws," he said.
Although Walters suggested that such forbearance would be voluntary, the truth is that federal officials have no authority to nab pot smokers in Nevada. The idea that they do is based on an egregious misreading of the U.S. Constitution.
In 1917, when Congress decided to ban alcohol, it recognized that a constitutional amendment would be required. It thereby acknowledged that the only powers it had were those enumerated in the Constitution.
Two decades later, when it decided to ban marijuana, Congress took a sneakier approach. It pretended it was passing a revenue measure, the Marihuana Tax Act of 1937.
By the time marijuana was included in the Controlled Substances Act of 1970, the U.S. Supreme Court had virtually obliterated the concept of enumerated powers. It interpreted Congress's power to "regulate Commerce…among the several States" so broadly that it could cover almost anything.
In recent years the Supreme Court has tried to put limits on this license to meddle. In 1995, for example, it ruled that a federal ban on possessing a gun within 1,000 feet of a school was not authorized by the Commerce Clause.
Since then the Court has not directly addressed the constitutionality of the federal ban on marijuana possession. If it did, it would probably find an excuse to uphold the law. But if bringing a gun to school is not a federal matter, it's hard to see why keeping marijuana at home is.
Among other things, the distinction between state and federal powers allows a diversity of policies, making it easier to correct errors. If Question 9 passes, other states can learn from Nevada's experiment in tolerance.