Seventy-five years, millions of arrests and billions of dollars later, we are still living with the consequences of that ignorant, ill-considered decision, which nationalized a policy that punishes peaceful people and squanders taxpayer money in a blind vendetta against a plant. Last week, voters in Colorado and Washington opted out of this crazy cannabicidal crusade by approving ballot initiatives that will set up experiments from which the rest of the country can learn -- assuming the federal government lets them run.
Both initiatives abolish penalties for adults 21 or older who possess up to an ounce of marijuana, and for state-licensed growers and sellers who follow regulations that should be adopted during the next year or so. Pot prohibitionists such as Asa Hutchinson, former head of the Drug Enforcement Administration (DEA), argue that allowing marijuana sales violates the Controlled Substances Act and therefore the Constitution, which makes valid acts of Congress "the supreme law of the land."
But the Supremacy Clause applies only to laws that Congress has the authority to pass, and the ban on marijuana has never had a solid constitutional basis. If alcohol prohibition required a constitutional amendment, how could Congress, less than two decades later, enact marijuana prohibition by statute?
The initial pretext was the same one the Supreme Court used this year to uphold the federal mandate requiring Americans to buy government-approved health insurance: The law, dubbed the Marihuana Tax Act, was dressed up as a revenue measure. By the time the ban was incorporated into the Controlled Substances Act in 1970, Congress had a new excuse: It was exercising its authority to "regulate commerce ... among the several states."
Seven years ago, the Supreme Court concluded, preposterously, that Congress is regulating interstate commerce when it authorizes the arrest of a cancer patient medicinally using homegrown marijuana in compliance with state law. But states indisputably remain free to say what is and is not a crime under their own laws, and that is what Colorado and Washington are doing.