Drug Policy

Federalism and Medical Marijuana

Let the states serve as experimental laboratories.


Since medical marijuana was legalized in California in 1996, use has been widespread. And once the Obama administration reduced the harassment, the number of dispensaries has grown rapidly. Not that pot was ever that hard to get out West, but it is now fair to say that the "medical" qualification is close to irrelevant.

So marijuana is now de facto legal in California, requiring only a couple hundred bucks and a short doctor's visit to become a qualified purchaser. Perhaps as a result, a ballot initiative to fully legalize marijuana is polling at about even odds in the Golden State, and marijuana initiatives are in the pipeline elsewhere.

Now, any libertarian must raise a cup, pipe, vaporizer (or whatever) to finally seeing a little bit of progress in the demented War On People Who Use Some Kinds Of Drugs. Combined with the resurgence in research on medical uses of psychedelics—which often find positive benefits—it looks like this may be the beginning of a positive shift in America's drug policy. Slow, partial, and late, but in the right direction.

Change, however, often causes backlash, and we need to be prepared with the right arguments to make sure that the right lessons get drawn from this experience. It is far too easy to make superficial slippery slope arguments against medical exemptions—as early as 1997, Reason's Nick Gillespie quoted Clinton drug czar Barry McCaffrey as calling medical use "a stalking horse for legalization," a phrase frequently repeated since.

In private, we will of course celebrate a moral victory. But in public, our best tools are those which do not depend on appeals to moral values that many voters do not share. Hence the importance of framing this as a successful experiment, a perspective which can serve as an antidote to the irrational fear that prohibitionists will attempt to generate with slippery slope arguments.

The classic slippery slope argument says that if we do A we will inevitably go on to do B, and while A would be a good thing, B would not. In this case, suppose we see medical exemptions for pot leading later to legalization in one state and then others. Opponents would then point to this transition as a reason not to pass future medical exemptions for other psychedelics, because even if medical use is a positive, legalization is not. They would then conclude that we should hold a hard line against any legal use of Schedule I drugs. Or as Robert DuPont, the first director of the NIDA argued in a letter to The Washington Post, "Medical marijuana is a stalking-horse for legalization. This can be seen in California, where medical marijuana advocates have had great success and are pushing for full legalization."

Now, many of us would take issue with the claim that legalization is a negative (Milton Friedman, for example). But this should not be our only tactic, and I'd like to suggest a very different approach, born from the philosophy of competitive, experimental government we advocate on Let a Thousand Nations Bloom. This is nothing new—it's the philosophy that America was founded on over two centuries ago, the idea of states serving as experimental laboratories.

From this perspective, we can fight back against the assumption that medical exemptions will always lead to legalization. We can argue instead that medical use serves as a limited experiment—a sort of partial legalization for the cases most likely to have more benefit than harm. Marijuana for cancer patients, for example, or therapists giving Ecstasy to vets with post-traumatic stress disorder.

Nor is this experiment a mere formality, inevitably leading to full legalization. Suppose we lived in the counterfactual world of Reefer Madness, where a few puffs of sweet ganja turned an ordinary citizen to violence, promiscuity, suicide, apathy, or whatever the current worry of the elder generation is. Then the result of medical marijuana would have been a disastrous rise in these outcomes—and a repeal of the experiment. Instead we have seen nothing particularly bad happen. People got high (with less cost and less stress), the sky did not fall, and so pressure is growing to expand the experiment.

Like any experiment, medical use is imperfect. Negative effects might occur years later (teenage pot use increasing mental illness risks). Of course, so might positive ones—like the neural growth promoted by ketamine and LSD. Interpreting these experiments correctly is far from straightforward, but it is through such imperfect experiments that we Enlightenment-era humans accumulate scientific knowledge.

Regardless of the underlying morals driving prohibitionists, most public arguments for banning substances are based on claims about those substances' harmful effects. This is a fundamentally empirical claim, and like any controversial empirical claim, experiments are absolutely crucial in resolving it. Regardless of our politics, surely all sensible people can agree that more accurate beliefs about the world are valuable for shaping optimal policies.

Unfortunately, not all our political opponents are sensible, but it still behooves us to argue for experimentation. The sensible opponents will agree with the need for experiments, but make different predictions about the outcomes. Meanwhile, those who oppose medical exemptions for promising experiments will be revealed for the irrational prohibitionists they are—and their agenda will get less sympathy when we show its anti-scientific nature.

Experiments and the accumulation of knowledge are what drive human progress. Alcohol prohibition was a failed experiment—and we learned from it. Medical marijuana has been an experiment—and we're learning from it, too.  Let's keep experimenting, keep learning, and move towards policies based on accurate facts, not irrational bias. After all, the truth is on our side. Unlike our opponents, we can afford to move forward one experimental step at a time.

Patri Friedman, grandson of economist Milton Friedman, is the founder of the Seasteading Institute.

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  1. Hello fellow Mudd alum 😉

    My own feeling is that prohibition has really become an industry unto itself. The details of what is prohibited and why are irrelevant to the machine now in place.

  2. Good thing I did all the K, and LSD, lol

  3. What comes after legalization of marijuana as Patri alludes to here is why I have never gotten excited about legalizing marijuana. Reasonoids will continue to be frustrated until we get a majority of Joe Sixpacks to get it that, if the First Amendment guarantees our right to put whatever ideas we choose into our minds, the Second Amendment SHOULD HAVE guaranteed our right to put whatever substances we choose into our bodies. The reason the Second Amendment doesn’t say that is simply because the Founders could not imagine their descendants being so stupid. Now I ask you, is Joe Sixpack–descendant of our Founders–smart enough to get that?

    1. Did you have a point?

    2. I’m pretty sure the majority of Joe Sixpacks enjoy a joint with their six-packs.

      1. sometimes, but often it is an either/or deal.

        1. ‘Sometimes’ seems like a good choice. Choice is good. I’ve even heard that sometimes after busting one’s ass all day at work, a couple of adult beverages, a couple of adult tokes, something delicious to eat, maybe some tube, possibly some lovin’ from the woman, and a good night of sleep is a pretty good choice. Well, except for the immoral, socially insidious smoking of the devil’s lettuce.

      2. The founders couldn’t see their descendents being so stupid that they would enact prohibition is more like it.

        1. Should be updated to, “the founders were confident that, even if their descendants were foolish enough to adopt a Prohibition amendment to the Constitution, they would soon see the folly of their ways and repeal that amendment.”

          Which is what happened.

          Then we got the part where the feds said, “what do we need an amendment for? Let’s just use some magic words like ‘interstate commerce,’ and an amendment is unnecessary!”

          1. @Mad Max: “Then we got the part where the feds said, “what do we need an amendment for?”

            Exactly! And, quite frankly, I have wondered why this civil intimidation has existed for so long with little organized opposition; except, of course, that our First Amendment right of free-speech was abridged along with 10th (as in: it is illegal to promote illicit drug use, therefore you cannot state your position in favor of legalization, in a public forum, without running the risk of censure, and possibly arrest.)

            Thank Goddess for the internet.

            That said, I’m all for a 28th Amendment that states: the government shall pass no law restricting or prohibiting personal, private activity that harms no other.

      3. Just ask the guys at GM.

  4. Prop 19 does not actually legalize MJ in California. True legalization needs to come at the Federal level.

    1. True enough, but it still gives us the high (heh) moral ground. As the jackbooted Obama Justice Department thugs haul the providers off to jail, we can smugly say: Hey Pricks! MJ is legal here.

    2. Agreed.

      The Feds may not be able to arrest every user in California, but I can already hear the Drug Warriers running to Congress demanding more money, more laws, more raids, etc., to “offset” the “loss” of state assistance. Never underestimate the ability of an entrenched bureaucracy to turn anything into an excuse for grabbing more tax money.

      1. Agree with Geoptf that is

      2. Yep. Just look at who’s funding the other side over there.

    3. By true legalization, you mean the federal government for once saying that the 10th means what it means?

    4. True legalization needs to come at the Federal level.

      I don’t necessarily agree with you but “legal” weed in California will certainly undermine the lies from the Feds and, hopefully, will hasten legalization at the Federal level.

      … Hobbit

    5. Geotpf says: “Prop 19 does not actually legalize MJ in California.”
      Actually, YES on Prop 19 does legalize marijuana in California, under California state law. And, given that local jurisdictions cannot rely on a Federal Preemption argument (recent ruling in CA appeals court), and locals cannot implement federal law at odds with state law… Marijuana will be legalized both on paper and de facto as well.

      It will still be illegal at the federal level, but then you have to say that MJ is legal in California, but not the US… we all know Cali ain’t in the federal system anyhow: It leads the way!

    6. The federal government doesnt have the power to make MJ illegal, thus prop 19 does, in fact, make it legal in CA. Making it illegal on the federal level requires a constitutional amendment, otherwise Cary Nation would have just had congress pass a law.

  5. My own feeling is that prohibition has really become an industry unto itself. The details of what is prohibited and why are irrelevant to the machine now in place.

    The “medical” wing of the pseudo-anti-prohibition movement is part of that machine. It’s a valve.

    Once the potheads get their little pat on the head from the state, the pressure for “experiment” goes away.

    Because they’re assholes.

    1. I agree. I have always thought that MM movement is exactly the wrong approach and actually takes us one step further away from the elimination of prohibition. It is absurd to talk about liberty in this country when you can remotely consider yourself free in any meaningful way without self ownership and telling people what they may or may not ingest is exactly contrary to the idea of self ownership.

      1. man, I need to read before I post. Let me try again – “liberty” sounds like sarcasm and an absurdity in a country were you don’t have self ownership. Which is exactly what prohibition says you don’t.

        1. me, What you said is pretty much what I said above. Even if it flew over the head of tkwelge.
          Maybe we could “friend” one another on FB?
          We can hope Patri is seeing ours.

      2. I don’t get it. Exploiting a loophole moves one farther away from elimination? I suppose if people didn’t claim tax deductions, they’d be that much closer to eliminating taxes?

        1. Tax loopholes merely confirms the legitimacy of the income tax. Likewise, the medical marijuana approach merely confirms the right of the state to determine what you may or may not ingest.

  6. I bet Willie gets good weed.

    1. That dumb shit-kicker had a chance to burn some trees with Willie and then let the joint “pass on by”? Fuckin’ weak!

  7. Holy crap that’s a HUGE tray of weed. Willie doesn’t play around.

  8. Keep Dope Alive

  9. You’re all I got, take care of me… Mamas, don’t let ’em drink whiskey and smoke that old pot.

  10. a few puffs of sweet ganja turned an ordinary citizen to violence, promiscuity, suicide, apathy. OH GOD, give me another hit!

    1. Geez…all it gave me was the munchies!

    2. …and all it gave me was probation.

  11. The best argument is from decentralization and federalism.

    Let states decriminalize if they want, and medicalize if they want.

    The slippery slope argument against medicalization is particularly dumb –
    we’re already on that slippery slope with a bazillion drugs that are legal only by prescription.

    The question we should be asking is why the government should prevent the people they have licensed as the experts in medicine from choosing among all drugs. Probably the vast majority of legal prescription drugs are much more dangerous than pot.

    1. Because it’s hard to make a multi-billion dollar industry off of an abundant, cheap plant without intensive regulation?

  12. The real question is why can’t a responsible adult like me (some may argue that point) light up a doobie in the privacy of my living room.

    1. An excellent question, but not a persuasive one. Everyone who generally believes in the right to be let alone is already on your side. The key for legalization, I think, is to start reeling in people who aren’t necessarily inclined to think that there’s a right to get baked.

      For example, there are particular ways that you can appeal to Tea Party types and others who claim to want to reduce government spending. “Is stopping people from getting stoned worth paying cops, judges, prison guards, probation officers, etc? Wouldn’t you rather use that money to pay down the debt?”

  13. What does the picture of Willie Nelson have to do with medical marijuana?

  14. Since it hasn’t been posted yet, enjoy. Clutch

  15. What’s this “current worry of the elder generation” crap…. C’mon Patri, do you think that you kids invented this stuff…. It ain’t old people that are the problem…. it’s the control freaks that we let govern/rule us…

    1. You’d think it’d be less of a worry since the Woodstock crowd is reaching retirement age.

      1. Useless hippies. They’re in charge now, and we’ve got the same idiotic laws and the same endless foreign wars. They’ve become “The Man”, so fuck them. And I’m going to bitch-slap any self-righteous youngster that claims his generation is going to change the world.
        No you’re not. Now get off my lawn.

  16. It’s not about trying experiments with different things to see if they are good or bad. It’s about me being a god damn grown adult and not having some other adult tell me , under threat of force, what I can and can not do with or put into my own body.

  17. It might be impolite to point out that talking about states as laboratories came from Louis Brandeis, who was supporting a state-sanctioned and enforced oligopoly of private ice companies.

    See also:

  18. I’m not sure experimentation, while a good idea, will win over people still believing in all of the anti-pot propaganda. I think, sadly, the only thing that will convince people is how violent the war on drugs is. Police don’t track how many people they kill, so unless we find that out, we’ll have to wait until the Mexican drug war spills over and kills enough Americans for people to get upset and demand an end to the War on Drugs.

  19. Worst part of this article is having to look at this old pothead coot all fucking weekend.

  20. Patri, I think the slippery slope argument is fallacious and can easily be demonstrated as such to anyone willing to listen. The fallacy in the argument lies in the fact that person A should not morally decide what person B does, unless person B’s actions harm person A.

    Every individual is sovereign over their own body. I am sure you would agree that irrespective of the result of any specific experiment in government policy, this is an absolute. As such, why shouldn’t our fight for legalization be structured as an “appeal to moral values.”

    It is only with the redefinition, restructuring, and re-education of falsely-acquired and contradictory values of the naysayers that we can reach our ultimate ends.

  21. Wayne Allen Root/Willie Nelson 2012!!!

  22. I’m the Dope Warriors’ worst nightmare: I’m a 53-year-old Mormon who is against the Dope War, but am so opposed to dope USE that I don’t even drink coffee or Coca-Cola.

    I want the war on dopers ended because of the terrible effects on those of us who DON’T use “recreational” drugs. My rights are being eroded, my money taken away, and the streets of my country have become shooting galleries, as dope pushers and DEA ninjas fight over turf. Little old ladies are being killed by black-masked men toting machineguns, for the crime of living at the address these mighty minds mistake for the place they really intended to raid.

    Thousands of square miles of this nation have been invaded and are under the control of thugs whose only power comes from their ability to supply something that the government says we can’t have . . .while our sitting President is an admitted user of the same drugs he throws people in prison for using. His two predecessors were also known drug users, making our last three Commanders-in-Chief ineligible to enlist in the armed services they are in charge of.

    It’s time to fix this, and return the United States to its former Constitutional existence.

    1. It is sad that the authorities enjoy their arbitrary powers so much that they will oppose all efforts to shut down the war.

  23. Considering alcohol, cigarettes, AND FDA-approved medications are ALL leading causes of death in the U.S., it is utterly insane to prohibit the use, sale or cultivation of an ancient healing plant that cannot kill from toxicity (no matter how much you use).

    OUR elected reps really need to catch up to their constituents and catch up on the science regarding cannabis. I’m so FED up with reading and hearing outrageous lie after lie being parroted by Dunce-like politicians and their alphabet soup friends.

  24. Some of you all are finally starting to get the states rights thing and nullification in thought and action, but you’re narrowly focused on drugs. Screw the Feds. Overwhelm them with huge numbers disregarding their edicts! Let the states experiment in everything not constitutionally assigned to the Feds. EVERYTHING!

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