The Obama administration has discovered federalism, at least a version of it, and it has therefore foresworn prosecuting medical-marijuana users and distributors who are acting in accord with state laws. This is good news for medical-marijuana users in the 14 states that allow cannabis to be prescribed for such purposes as mitigating the side effects of chemotherapy.
The administration’s move is a lukewarm one, inasmuch as it stops short of recognizing the deeper principle at hand; Deputy Attorney General David Ogden’s memo only concedes that making federal cases against marijuana transactions permitted under state law is a poor use of prosecutors’ time, and the Justice Department reserves the right to reverse itself at any time and to make case-by-case exceptions. So this is something less than a profile in courage. But President Obama knows where his constituents live and, with the exception of a few bastions of don’t-tread-on-me conservatism, medical marijuana has been legalized mostly in the deepest precincts of Obama country: California, Maryland, Oregon, Rhode Island, etc. Medical-marijuana states gave Obama 134 electoral votes in 2008 and McCain six. But given this administration’s habit of galloping off at speed in the wrong direction, it is to be congratulated when it manages even a baby step in the right one.
There is something slightly fraudulent about the medical-marijuana argument, and even those of us who endorse the broad liberalization of marijuana laws should concede that fact. While we do not begrudge any cancer sufferer or glaucoma patient the comfort he derives from tetrahydrocannabinol, rigorous scientific evidence that marijuana is an effective treatment of anything other than nausea and loss of appetite is scarce. An argument for liberalizing marijuana laws based primarily on the drug’s alleged health benefits is a weak one, and it fails to address the fact that the very great majority of people who invite criminal prosecution by smoking marijuana do so for reasons that are non-medical. The broader and more meaningful case against marijuana prohibition — that it is ineffective, expensive, a needless incursion into the private lives of adult Americans, and an incubator of crime — needs yet to be made.
Likewise, the question of federalism raised but unanswered by Mr. Ogden’s memo ultimately is more important by many orders of magnitude than the question of marijuana’s legal status. As Travis Kavulla reports in the current issue of National Review
, Montana has declared that firearms manufactured, sold, and kept within the state are not subject to federal regulation, which, like federal intrusion into California’s state-level medical-marijuana arrangements, is predicated on an overbroad interpretation of Congress’s powers over interstate commerce. (Subscribers may read the article here
.) The case for a relaxed federal hand on firearms is much more persuasive than the case for marijuana, which boasts no item on the Bill of Rights securing Americans’ right to keep and smoke it. But Washington’s response to Montana’s declaration of its rights, as Mr. Kavulla summarizes, has been: “Don’t even think about it.”
At the national level, Democrats can be relied upon to be partially libertarian on sex and drugs but authoritarian on practically everything else, which puts them in the odd position of taking a very liberal attitude toward rights not secured by the Constitution (sodomy in Texas, marijuana in Maine) while remaining hostile to those that are. Federalism is a gift from the Founders that can go a long way toward resolving the sociocultural skirmishes that erupt in our politics. Having stumbled upon federalism in the case of medical marijuana, the Obama administration and its allies in Congress ought to do themselves the favor of employing it as a principle rather than as a gimmick — particularly on issues of more substance than the how and why of who gets high.