Getting Cannabis Legalization Right

by Reihan Salam

So far, Washington and Colorado are the only states to have legalized the commerical production and sale of cannabis as well as its recreational use. But they almost certainly won’t be the last, thanks to the dramatic rise in public support for legalization. But according to a series of articles in the latest issue of the Washington Monthly, there is a real risk that the emerging marijuana industry will prove a public policy disaster.

Jonathan Rauch makes the meta point that though rising support for marijuana legalization bears a superficial resemblance to rising support for same-sex marriage — both causes have been championed by social liberals and are associated with cultural tolerance and permissiveness, both have gained ground through state-by-state campaigns — the issues surrounding marijuana legalization are actually closer to those raised by the implementation of Obamacare. He observes that rising support for legalization does not stem from a widespread belief that cannabis legalization is first and foremost a matter of personal freedom. Rather, it stems from the pragmatic conclusion that the current legal regime has failed. Marijauna legalization will be judged on the basis of its practical outcomes, e.g., will it lead to a dramatic increase in binge consumption? The really difficult work will come when policymakers choose how to regulate the new cannabis markets, a process that will involve a lot of messy trial-and-error.

Jonathan P. Caulkins warns against “a legal cannabis market dominated by large companies that push to sell as much as possible to as many people as possible,” and he offers two alternative models for cannabis legalization: in the first, production and sale would be limited to nonprofit organizations; and in the second, production and sale would be limited to small user co-ops. The case he makes for latter is extremely strong, and the former certainly seems preferable to full commercial legalization, the full implications of which are poorly understood.

Mark Kleiman does an excellent job of laying out the stakes in “How Not to Make a Hash Out of Cannabis Legalization” — the potential for an explosion of binge use, the legal and constitutional difficulties involved in restricting advertising designed to encourage binge use — and he concludes that our best bet is federal legislation that would encourage states to structure their cannabis markets in such a way that they wouldn’t be dominated by for-profit commercial enterprises. The option Kleiman considers most promising is one in which only state-run retail stores can sell cannabis.

It’s easy to see why Congress doesn’t want to touch cannabis legalization. Though support for legalization has increased, the issue remains contentious, and it raises difficult questions regarding U.S. treaty obligations. But the federal government needs to step in to see to it that the emerging cannabis markets don’t spiral out of control. One of the central purposes of our federal republic is to regulate interstate commerce, and it would be foolish to deny that legalization in some states will have spillover effects in others.


The Agenda

NRO’s domestic-policy blog, by Reihan Salam.