Legal or Not Legal, That is the Question: A Case for Legalizing Marijuana Federally

By Stefan M. Kløvning

OPINION – Elon Musk, the founder and Chief Executive Officer of Telsa and SpaceX, ranked 25th on Forbes list of the World’s Most Powerful People, received extensive coverage after infamously smoking marijuana during a two-and-a-half-hour-long interview with stand-up comedian Joe Rogan on Friday. Tesla stocks dropped by 6.3% in the aftermath of the interview, which is ironic considering Rogan pondered before handing Musk the joint, “you probably can’t do that ’cause of the stockholders right?” It was a risk, but since 2016 recreational use of marijuana has been legal in California. So what’s the big deal? Why are so many newspapers running amok about it?

The truth is, it’s not completely legal. The Supreme Court upheld in Gonzales v. Raich (2005) that the federal government has the constitutional authority to prohibit marihuana for all purposes, creating conflict between state and federal law. This does not overturn state legislation ipso facto, but it leaves the decision of prosecution to the federal government. During the second term of the Obama administration, then-Deputy Attorney General James Cole eased the regulations on the production and distribution of marihuana in 2014. On January 6 2018, however, the U.S. Attorney General Jeff Sessions rolled back on the so-called “Cole memo,” again restricting the influence of state legislation on the issue. This has caused CNBC to argue that Musk was under influence of “illegal drugs” while at work, as “One could argue Musk was representing Tesla as its CEO during the interview,” despite the fact that most of the interview wasn’t about Tesla at all.

What is it that has caused marihuana to be so regulated? From reportedly being used as far back as by Emperor Shen Nung in 2737 B.C. to Elon Musk today, why is it that this plant has been deemed so dangerous? Dr Lester Grinspoon, Associate Professor Emeritus of Psychiatry at Harvard Medical School, writes that “Marihuana was a subject of extravagant social controversy even in ancient times: there were those who warned that the hemp plant lined the road to Hades and those who thought it led to paradise.” Such it seems to remain, though now more metaphorically. Despite being used for over four thousand years, it wasn’t widely used in the United States before the 1920s. Its regulation began already in 1906, i.e. by being labelled as “poison” and being restricted on a state-to-state basis, but the Marihuana Tax Act of 1937 became the first national regulation of the drug, signed into law by Franklin Delano Roosevelt. This, Grinspoon asserts, “completed its medical demise”.

Even in the 1970s, it was reported that “It is accepted widely that the physiologic effects of smoking marihuana are not well known, despite an acknowledged high incidence of usage.” President Nixon thus called for a major effort to study drug effects in a scientific manner and appointed the National Commission on Marihuana and Drug Abuse to do so. This might sound strange to many a reader familiar to Nixon’s policies, especially as his second most notorious legacy was his drug-war, which according to his former aide John Ehrlichman was meant to target the “anti-war left and black people.” Setting up the commission, however, appears only to have been a cover, as the NCMDA was ignored by the White House after issuing a report on its findings in 1972 calling for the decriminalization of marijuana possession in the United States. They were already well aware of the facts. Ehrlichman reportedly told a journalist in 1994, “Did we know we were lying about the drugs? Of course we did.”

So, what were some of the findings the NCMDA presented in its 1972 report?

  • There is little proven danger of physical or psychological harm from the experimental or intermittent use of the natural preparations of cannabis, including the resinous mixtures commonly used in this country. The risk of harm lies instead in the heavy, long-term use of the drug, particularly of the most potent preparations.
  • The experimenter and the intermittent users develop little or no psychological dependence on the drug. … Prolonged duration of use does increase the probability of some behavioral and organic consequences including the possible shift to a heavy use pattern. 
  • No organ injury is demonstrable.
  • In many cases, the adults are still influenced by the myths of an earlier period which overstated the dangers of the drug. At a time of great social change and turbulence, the tendency to depend on the “traditional wisdom,” and its moral justification, is a strong one.
  • When the issue of marihuana use is placed in this context of society’s larger concerns, marihuana does not emerge as a major issue or threat to the social order. Rather, it is most appropriately viewed as a part of the whole of society’s concerns about the growth and development of its young people.
  • From what is now known about the effects of marihuana, its use at the present level does not constitute a major threat to public health.
  • The clinical findings of impaired psychological function, carefully documented by medical specialists, legitimately arouse concern. … Unfortunately, these marijuana-related problems, which occur only in heavy, long-term users, have been over-generalized and overdramatized.

They conclude,

[All highlights are mine]
In this Chapter, we have carefully considered the spectrum of social and legal policy alternatives. On the basis of our findings, discussed in previous Chapters, we have concluded that society should seek to discourage use, while concentrating its attention on the prevention and treatment of heavy and very heavy use. The Commission feels that the criminalization of possession of marihuana for personal use is socially self-defeating as a means of achieving this objective [highlight mine]. We have attempted to balance individual freedom on one hand and the obligation of the state to consider the wider social good on the other. We believe our recommended scheme will permit society to exercise its control and influence in ways most useful and efficient, meanwhile reserving to the individual American his sense of privacy, his sense of individuality, and, within the context of ail interacting and interdependent society, his options to select his own life style, values, goals and opportunities.

The Commission sincerely hopes that the tone of cautious restraint sounded in this Report will be perpetuated in the debate which will follow it. For those who feel we have not proceeded far enough, we are reminded of Thomas Jefferson’s advice to George Washington that “Delay is preferable to error.” For those who argue we have gone too far, we note Roscoe Pound’s statement, “The law must be stable, but it must not stand still.”

We have carefully analyzed the interrelationship between marihuana the drug, marihuana use as a behavior, and marihuana as a social problem. Recognizing the extensive degree of misinformation about marihuana as a drug, we have tried to demythologize it. Viewing the use of marihuana in its wider social context, we have tried to desymbolize it.

Considering the range of social concerns in contemporary America, marihuana does not, in our considered judgment, rank very high. We would deemphasize marihuana as a problem.

The existing social and legal policy is out of proportion to the individual and social harm engendered by the use of the drug. To replace it, we have attempted to design a suitable social policy, which we believe is fair, cautious and attuned to the social realities of our time.

If only there weren’t political points to score by perpetuating the myth! But that’s unfortunately not how things work in Washington. Sessions may be ousted as Attorney General soon after the mid-term elections, but that shouldn’t be a reason to celebrate that the Cole-memo will magically be revived again, not to mention leading to an eventual federal decriminalization. Despite promising to “hire the best people”, Trump has had trouble with many people in his administration since he was elected. Finding a “better” Attorney General than Jeff Sessions depends therefore on what standards Trump sees to be fit for the position. Thus what the new Attorney General will be like is a mystery, but we ought to have learned by now that change doesn’t appear out of nowhere. This isn’t the French or Bolshevik revolution, but an effort to revive the values of the American one, the constitution of which is now being misinterpreted so far as to justify federal prohibition of not only smoking a plant but also using it for medical purposes. What’s in swearing to uphold the constitution for a Congressman or a Judge if he doesn’t really know what it says?

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