Marijuana Has Never Been Legal Before?

In a pretty good Newsweek piece on how the feds might react if California legalizes marijuana next week, Ryan Tracy opens by describing passage of Proposition 19 as enacting "a process for legalizing, regulating, and taxing marijuana use that no one else in the world has ever attempted." If he means no government has ever approved legislation exactly like Prop. 19, he's right. But it's worth remembering that cannabis has been banned for less than a century. It was legal throughout the world for almost all of human history and until 1937 in the United States. Historically, it is prohibition that's anomalous.

There are a few other mistakes, including the misidentification of former DEA administrators as "former DEA agents," the assertion (corrected at the end of the article) that you need a state-issued ID card to obtain medical marijuana in California, and the claim that "the Obama administration has stopped busting dispensaries." But Tracy gets several important points right:

The administration's cheapest course of action, a challenge to Prop 19 in the courts, looks doomed. Constitutional-law experts say California has no obligation to have the same criminal laws as the federal government, so Holder's Justice Department can forget any lawsuit compelling the state to make marijuana use a crime….

During the Bush years, the DEA boosted its enforcement of marijuana laws in California, to little or no real effect…

If Prop 19 decriminalizes recreational marijuana use for everyone over age 21, the number of retailers would almost certainly skyrocket, and it's unlikely that the DEA would have the resources to arrest them all.

History suggests that enforcement likely would not stop Californians from selling and consuming legal marijuana.

A companion piece by Eve Conant discusses support for legalization among Republicans, citing the reversal of expected drug policy positions in John Dennis' challenge to House Speaker Nancy Pelosi (D-Calif.) and Tom Tancredo's battle with Democrat John Hickenlooper (mayor of Denver and a bête noire of the marijuana reform group SAFER) for governor of Colorado. Conant also mentions Barney Frank challenger Sean Bielat, former New Mexico Gov. Gary Johnson, Americans for Tax Reform President Grover Norquist, Rep. Dana Rohrabacher (R-Calif.), Fox News personalities Glenn Beck and Andrew Napolitano, former Secretary of State George Shultz, Milton Friedman, and William F. Buckley. The fact that Conant felt compelled to include a couple of antiprohibitionists who are no longer with us should tell you that the list of prominent Republicans who publicly question the war on drugs is not very long. But as I noted a few weeks ago, the same can be said of prominent Democrats, despite their generally undeserved reputation for being more tolerant in this area. Conant does not get too carried away, noting that libertarian-leaning Republicans contend with a powerful faction of social conservatives and that politicians in both major parties are much more likely to express private doubts about the drug war than to take a public position against it. But I think/hope she's right that a shift is coming, if not next week then soon:

Prop 19 has sparked a surprisingly sober national discussion lacking in the hyperbole that has long surrounded marijuana….

Few Americans today can say they're complete strangers to marijuana; they either had stoner friends in high school, or they got a contact high at a Guns N' Roses concert, or they themselves have inhaled….

Conservative attitudes are changing at the grassroots level….The percentage of Republicans in favor of legalizing marijuana has risen quickly since 2005, jumping 7 points. And as their constituents have moved on the issue, more Republican candidates and lawmakers are refusing to toe the party line….

"We are two years away from reaching a tipping point," says Johnson, the former New Mexico governor.

Conant quotes the Marijuana Policy Project's Steve Fox, who says:

The Democrats are just so squeamish about this, that's the problem. This issue is wide open for Republicans to take. If [California gubernatorial candidate] Meg Whitman held a press conference tomorrow and said she supports Prop 19 and would defend the state against federal interference, she would probably win.

Whitman's Democratic opponent, Jerry Brown, though he signed a decriminalization bill during his last stint as governor and has defended the legality of medical marijuana sales as attorney general, is against Prop. 19, for some pretty dumb-sounding reasons.

For more on the myth that the Obama administration has stopped busting medical marijuana dispensaries, start here. Previous discussion of the federal response to Prop. 19 here, of pot-tolerant Republicans here, of John Dennis in particular here, and of the bogus Supremacy Clause argument against Prop. 19 here. For evidence that anti-pot hyperbole is not entirely absent from the Prop. 19 debate, go here, here, and here.