Pot-Smoking Segregationists?

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The Drug Policy Alliance notes that drug warriors have started comparing defenders of state medical marijuana laws to "Southern segregationists who defied national civil rights laws." At the American Bar Association's annual convention over the weekend, Mark Quinlivan, the Justice Department's senior trial counsel, drew that analogy, arguing that "states can't selectively assert their independence from the federal government on national issues….You cannot cherry-pick your federalism."

When Rep. Mark Souder (R-Ind.) made a similar point during a recent congressional debate, Rep. Sheila Lee Jackson (D-Texas) offered this rejoinder:

I disagree with the interpretation of nullification when, in fact, it is an issue of states' rights that will not be harmful to others. I believe the federal law is relevant when the federal law seeks to solve a problem that is, in fact, harmful overall to all Americans. The civil rights example that the gentleman from Indiana used was an issue where the United States wanted to fall on the side of what was right and end the most heinous of behaviors in the 20th century, and that was segregation, lynching; and so we wrote civil rights laws to give equality to all Americans.

Drug warriors, of course, would argue that medical marijuana laws are "harmful to others," so that standard does not really work. Jackson gets at a more useful distinction when she mentions lynching, segregation, and, more generally, unequal treatment under the law. To the extent that such evils involved state action (or deliberate inaction), federal intervention was justified by the 14th Amendment.

But drug policy reformers cannot so easily escape the constitutional implications of "civil rights" laws targeting private discrimination. The Supreme Court has upheld such laws under a very broad reading of the Commerce Clause, which is also the constitutional pretext for the Controlled Substances Act.

In the 1964 case Heart of Atlanta Motel v. U.S., the Court said a ban on racial discrimination by "places of public accommodation," including hotels, restaurants, and gas stations, was within Congress's authority because such businesses may cater to interstate travelers. The Court also held that "Congress had power to enact appropriate legislation with regard to a place of public accommodation such as appellant's motel even if it is assumed to be of a purely 'local' character, as Congress' power over interstate commerce extends to the regulation of local incidents thereof which might have a substantial and harmful effect upon that commerce."

This kind of reasoning certainly seems sweeping enough to encompass, say, marijuana cultivation in California, even if the crop is intended purely for medical use by state residents. Medical marijuana users might travel out of state, taking their supply with them. Even if they never leave California, their pot smoking might impair their productivity (or so drug warriors could claim), which could ultimately affect interstate commerce. And so on.

Supporters of federalism in drug policy do not have to defend Jiim Crow. But I think they do have to reject the expansive reading of the Commerce Clause that has been used to justify federal bans on private discrimination.

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  1. Well, said expansive reading has been checked in several recent cases: one concerning gun control (Gun Free School Zones Act), another concerning rape (Violence Against Women Act) and another concerning the issue of wetlands, navigibility, etc. (Clean Water Act; Rivers & Harbors Act, etc.).

  2. BTW, might I suggest that calling upon segregationism to bolster your argument is bit like calling your debating opponent a NAZI or a fascist; unless its absolutely clear that your opponent is such, you’ve lost the debate.

  3. “Supporters of federalism in drug policy do not have to defend Jim Crow.”

    Indeed! Southern state Jim Crow laws were laws to *restrict* freedoms that were protected under the 14th amendment.

    State medical marijuana laws are simply efforts to PROTECT freedoms that the 10th amendment already grants to all citizens.

    So one case is states *restricting* constitutionally guaranteed freedoms, and the other is states attempting to protect constitutionally guaranteed freedoms. Pretty big difference!

  4. Funny, I seem to recall someone comparing the drug warriors to the old hardline segregationists in an op-ed sometime last year…I want to say it was in the OC Register, but don’t quote me on that.

    Their comparison was more along the lines of hoping that one day their children would look back on the drug warriors of today the way most people look back on segregationists now…as misguided (or as I prefer, EVIL) people supporting an unjust system with religious fervor.

  5. Mark, I’m pro-legalization and anti-Jim Crow, but there’s a problem with your argument. Much of segregation was about the government allowing private individuals and corporations to segregate, such as lunch counters and bus lines.

    See, around these parts, it’s only government that violates rights and reduces freedom.

  6. Oh no! Private individuals discriminating on their own property…How horrible.

  7. Jim Crow is properly understood as a reference, not to private discrimination, but to state-required and enforced discrimination. Certainly segregated public schools and public transportation falls into this category, as do the laws requiring separation of the races at the marriage altar, lunch counters, and other places of public accomodation. Jim Crow didn’t so much allow discrimination as require it.

    You can be against Jim Crow, in favor of freedom of association, and in favor of freedom of, umm, self-medication, all with perfect consistency.

  8. OK, lets simplify this a bit. Lets segregate those that need pot as medicine from those that need it for recreation. A better approach, though, is segregating those that use from those that abuse as we do with Alcohol.

  9. How about comparing the medpot people with the New Englanders who refused to enforce the fugitive slave laws before the Civil War? They were also defying federal law. I think Ass-crap, theocratic nutball that he is, is opposed to ANY kind of anti-authoritarianism.

  10. Hypothetical:
    Let’s say Nevada allowed possession of marijuana, while California did not. This is not Nevada’s problem, it’s between California and the person with the marijuana.

    This is why states all have the ability to enact their own laws. Just because some states may not like what goes on next door and may not want it in their state does not automatically entitle or enable the government to step in and step on one states ability to make laws just to appease the opposing state(s).

  11. Two weeks ago, Nadelmann and Soros’ lobbied to have the states decide med pot policy. That vote failed, however, it would have meant de facto marijuana legalization, at least in California, because there is no guidelines as to who may get it or not there and it would not have even been taxed or regulated in any way. Although it sounds good it puts doctors in charge once more. Anti-prohibitionists need to just worry about gettng the government out of the drug treatment industry, the rest of the system will fall like a deck of cards once that is yanked.

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