In a recent ABC News special, John Stossel interviews New York
City police officers who are watching a protest by opponents of the war on
drugs, waiting to catch anyone who dares to light up a joint. When he asks
if there might be a better use of their time, they admit that pot smokers
are hardly a public menace.
Stossel presses the issue: Then why is marijuana illegal? One
cop shrugs, saying he just enforces the law; he doesn't write it.
This fall in Nevada, police officers will have a chance, along
with their fellow citizens, to rewrite the law that forces them to arrest
marijuana users. They will vote on Question 9, a proposed constitutional
amendment that would legalize possession of up to three ounces of marijuana
The recent endorsement of the measure by the state's largest
police organization, the Nevada Conference of Police and Sheriffs (NCOPS),
has provoked a public outcry that may prompt the group to reconsider. But
the argument that convinced NCOPS remains sound.
"As a former law enforcement officer," said NCOPS President Andy
Anderson, "I know that a simple marijuana arrest (could) take me off the
street for several hours and sometimes for over half my shift. . . . We
could better spend our time responding to more life-threatening and serious
incidents. . . . Passage of Question 9 will ensure that more cops are on the
streets to protect our citizens from violent crime and the threat of
The flip side of this message is that otherwise law-abiding
people who smoke marijuana do not deserve to be arrested, jailed or fined.
As the Las Vegas Review-Journal, the state's largest newspaper, put it in a
July 7 editorial, "the measure would end the needless harassment of
individuals who peacefully and privately use marijuana."
Polls indicate that voters are evenly divided on the initiative,
which would allow the sale of marijuana in state-licensed shops. Even if it
passes this year and in 2004 (as required for a constitutional amendment),
that won't be the only hurdle. As Keith Stroup, executive director of the
National Organization for the Reform of Marijuana Laws, observes, "It is
highly unlikely the federal government would allow a state to create a legal
market for the sale of drugs."
Yet federal drug czar John Walters, who spoke out against the
initiative in a visit to Las Vegas last month, indicated that the national
government would not try to impose its will on Nevada. "That's not our
intent," he said. "People have a right to make their own decisions."
Presumably Walters was referring to a choice of drug policies,
not of intoxicants, but even that concession was surprising. "I don't
believe you'll see federal officials coming into (Nevada) to enforce
possession laws," he said.
Although Walters suggested that such forbearance would be
voluntary, the truth is that federal officials have no authority to nab pot
smokers in Nevada. The idea that they do is based on an egregious misreading
of the U.S. Constitution.
In 1917, when Congress decided to ban alcohol, it recognized
that a constitutional amendment would be required. It thereby acknowledged
that the only powers it had were those enumerated in the Constitution.
Two decades later, when it decided to ban marijuana, Congress
took a sneakier approach. It pretended it was passing a revenue measure, the
Marihuana Tax Act of 1937.
By the time marijuana was included in the Controlled Substances
Act of 1970, the U.S. Supreme Court had virtually obliterated the concept of
enumerated powers. It interpreted Congress's power to "regulate Commerce . .
. among the several States" so broadly that it could cover almost anything.
In recent years, the Supreme Court has tried to put limits on
this license to meddle. In 1995, for example, it ruled that a federal ban on
possessing a gun within 1,000 feet of a school was not authorized by the
Since then, the Court has not directly addressed the
constitutionality of the federal ban on marijuana possession. If it did, it
would probably find an excuse to uphold the law. But if bringing a gun to
school is not a federal matter, it's hard to see why keeping marijuana at
Among other things, the distinction between state and federal
powers allows a diversity of policies, making it easier to correct errors.
If Question 9 passes, other states can learn from Nevada's experiment in