The Corner

The Most Convincing Argument Ever for Legalizing Marijuana . . .

The United Nations is apparently demanding that we keep it illegal.

Well, okay, there may be more convincing — or at least more serious — arguments, at least for leaving the matter up to state and local governments. But would you believe that the recent exercise of constitutional self-government in Colorado and Washington state violates various international drug-control conventions signed by the United States government over the years? Would you believe that the United Nations is now formally protesting to the United States government about the issue, implicitly warning of the treatment Afghanistan gets as an international pariah if it doesn’t get its pot-smokers under control? It’s true, but it doesn’t matter. 

Let’s keep a couple of things in mind. The treaties of the United States are just like other federal laws and regulations — they are the supreme law of the land, according to the Constitution’s Supremacy Clause. But there are treaties and there are treaties. Some treaties have immediate effect under domestic law (e.g., free-trade agreements) and are therefore considered “self-executing” treaties. But most treaties apply only to the U.S. government as a government, and are purely international in character even if they refer to domestic affairs. When these “non-self-executing” treaties apply to some aspect of domestic policy, they are no more than undertakings of the U.S. government to try to do this or that under its domestic laws.

The enforcement of international treaties that are “non-self-executing” is purely a matter of preserving national diplomatic credibility. But otherwise, any particular administration is perfectly free to stop observing any non-self-executing treaty, as part of the president’s authority to manage foreign policy. 

The U.S. should always be consistent and principled in its international relations. People should understand the lasting principles that guide our actions. International law requires nothing more than that, but our dignity as a civilized people — “a decent respect to the opinions of mankind” — requires nothing less. American presidential administrations should adhere to the agreements of previous ones so that future administrations will adhere to theirs — and to maximize the credibility and influence of the United States. 

But that it is not an argument for mindless adherence to non-self-executing treaties that have become obsolete. The international drug-control conventions may be just such a case.

The war on drugs may continue, but if the people of Colorado and Washington want to decriminalize marijuana, the federal government can’t do anything about it beyond what its own limited law-enforcement resources — now mostly focused on terrorism — are able to do about it, which is nearly nothing at the street-corner level. A series of conventions signed in 1961, 1971, and 1988 may be useful guidance for policy, but they cannot bind the U.S. government to do things that lie outside of its capabilities. And they should never bind it to interfere in matters that the Tenth Amendment leaves to the states and to the people.

Mario Loyola — Mr. Loyola is a research associate professor and the director of the Environmental Finance and Risk Management Program at Florida International University and a senior fellow at the Competitive Enterprise Institute. From 2017 to 2019 he was the associate director for regulatory reform at the White House Council on Environmental Quality.


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