Going to Pot: Why the Rush to Legalize Marijuana Is Harming America (2016)
How to Answer Legalization Efforts and Argue with Those Who Support Legalization
Over the last year, one could have looked at almost any poll on the legalization of marijuana and, for the first time, find that support for legalization has become the majority sentiment in this country. A CNN poll from January 2014, for instance, found 55 percent of the population in support of legalizing marijuana.1 That is a greater percentage than voted for President Obama in either 2008 or 2012. In years past, such a number would have raised eyebrows and voices. Historically, Americans understood the dangers of drug use and would never have been in favor of legalizing it. In 1987 only 16 percent of Americans supported marijuana legalization. By 1996 that number had risen to 26 percent and it has been rising ever since, to a strong majority of Americans.2
We have attempted to explain some of this. As a society, we stopped the drumbeat against the harms of drugs (including marijuana). We watched a slow and steady campaign that actually moved from saying marijuana was not harmful to trumpeting marijuana as beneficial, despite scientific evidence that grows by the day. Even as we were writing this book, two major studies came out on the dangers of marijuana: one study on its effects on the brain, another on harms to the heart. As we noted earlier, we can find no peer-reviewed study from the past several decades that actually finds marijuana safe or healthy. Let us repeat: we have found no serious scientific or medical study that concludes marijuana use is actually safe or healthy. Every argument on behalf of its safety or therapeutic value is based on anecdote or political argument… or a critique of a study on the harms of marijuana, where the dissenting conclusions about such studies come down to something very much like, “The study is overstating the danger.”
The anecdotes, political arguments, and disagreements with the scientific research have been buffeted and strengthened by cultural messages, to the point that most polls now show that we live in a country where most people want to legalize a dangerous drug. It is our suspicion that a great many people still do not actually believe it is a good idea to legalize marijuana, but have been cowed into silence or resigned agreement by the tide of the movement to legalize. Regrettably, those who do still suspect legalization may not be a good idea, or have inclinations against it, often do not have good arguments to respond to the changing culture and politics of the time. It is our purpose to supply those arguments. As Flannery O’Connor put it, sometimes you must “push back against the age as hard as it pushes against you.”3
So how does one begin the conversation or debate against legalization? It depends what the first argument in favor of legalization is, and we have tried to answer the most common ones here. Let us break it down as simply, comprehensively, and helpfully as we can.
The Science Documenting the Harms from Marijuana Use Is Clear
First, there are no scientific or medical studies showing marijuana is safe or harmless. The best the legalization advocates can do is cast doubt on studies showing the opposite, mostly by critiquing methodologies. To critique such studies is to critique every study, including those from respected institutes in Europe and the United States, as well as almost every physician and health organization, including the American Medical Association, the American Psychiatric Association, and the American Cancer Society. In fact, it is inexplicable that as the balance of public opinion has been moving toward the legalization of marijuana, the balance of science and medicine has been moving toward broad agreement on marijuana’s harms and dangers. Ask a proponent of legalization who says marijuana is not that harmful, “Do you have a study on that?” Then you might show them one of the studies we have referenced regarding the very real dangers to the heart, brain, and lungs.
Is Marijuana Really Less Harmful Than Alcohol or Tobacco?
The most widespread argument we hear in favor of legalization is that alcohol and tobacco are legal substances that do far more harm to individuals and society than marijuana. However, even if alcohol and tobacco were more harmful than marijuana, is it hypocritical to keep marijuana illegal because there are more harmful substances that are legal? We think not. Adding another dangerous product to the marketplace defies sound judgment.
We believe that marijuana is at least as harmful as tobacco and alcohol. Someone can smoke a tobacco cigarette, or drink a can of beer or a glass of wine, and return to work, able to function at full capacity. The same cannot be said for someone who smokes a marijuana joint during the lunch break, since the sole purpose is to get high. Certainly, if someone smokes two packs of cigarettes or consumes six scotches on the rocks per day, there will be very negative consequences. However, someone does not need to engage in such excessive consumption of marijuana to suffer both immediate and long-term negative consequences. Whenever marijuana legalization advocates talk about the dangers of alcohol and tobacco use, they are really talking about abusive use of those drugs. They then compare the alcohol and tobacco abusers to the pot smoker who has a joint once or twice a month. It is a false comparison. In assessing the relative harm caused by tobacco, alcohol, and marijuana, we need to be consistent and compare the harm done by abusive versus casual use of each drug.
It is simply untrue that tobacco is more harmful than marijuana. Yes, cigarettes can do terrible damage to the lungs, larynx, esophagus, tongue, heart, and other parts of the body. However, aside from temporary and fairly safe mental stimulation, they have no effect on the brain, except to cause nicotine addiction. Marijuana, on the other hand, affects the lungs, heart, and brain. Marijuana smoking is “significantly associated with more than a twofold risk of developing lung cancer” according to one recent forty-year cohort study.4 The American College of Physicians documented in a report that “the chronic effects of smoked marijuana are of much greater concern, as its gas and tar phases contain many of the same compounds as tobacco smoke. Chronic use of smoked marijuana is associated with increased risk of cancer, lung damage, bacterial pneumonia, and poor pregnancy outcomes.”5 That is exactly what is said in lay terms about tobacco smoking.
As for the heart, one recent study from Harvard Medical School has found marijuana smokers increase their risk of heart attack five times over that of nonsmokers.6 Another recent study, out this year and mentioned earlier, found that marijuana users are more subject not only to heart attacks, but also to “angina, ischemic ulcers and gangrene associated with blocked blood flow to extremities and transient ischemic attacks.”7 This research is complemented by another 2014 study finding “that marijuana users have a higher risk of stroke compared with people who do not use the drug.”8 Again, this sounds to the layman like warnings heard about cigarettes.
Then there is the brain. As the Psychiatric Times put it, “Results from 7 cohort studies showed a 40% increased risk of psychosis in cannabis users compared with nonusers. The data also revealed a dose-response effect—the risk of psychotic symptoms was increased approximately 50% to 200% in those who used cannabis frequently compared with nonusers.”9 Marijuana use has also been found to substantially lower IQ10 and to cause and worsen depression and anxiety disorders.11
Marijuana Can Become Addictive
Regarding marijuana’s being addictive, as Dr. Wes Boyd of Harvard Medical School put it, for some people “marijuana is unquestionably addictive.”12 Dr. Boyd explains that some people’s experiences with marijuana are analogous to those who abuse alcohol: for some it is addictive, though most are casual users. Fair enough; most people who drink alcohol are not alcoholics. Alcohol addiction rates range from about 10 to 15 percent of users.13 Nobody would maintain, though, that alcohol cannot be or is not addicting. What are the chances of addiction to marijuana? For teens it’s one in six; for adults it’s one in eleven.14 So yes, it is true that the majority of people who try marijuana will not become addicted. However, that also is true of alcohol and tobacco and, for that matter, cocaine. In other words, it is not an argument at all to say most users do not become addicted. Nobody would make that claim about alcohol or tobacco as an argument for fewer restrictions on those substances.
As for the higher death and damage rates attributed to alcohol and tobacco, it is at present correct to say more deaths are caused by those two legal substances than by marijuana. It is also true that alcohol and tobacco are far more widely used because they are legal. About 136 million Americans age twelve and older drink alcohol; about 58 million Americans age twelve and older smoke cigarettes; and about nineteen million Americans age twelve and older are current users of marijuana.15 However, note that marijuana use has steadily risen over the past several years (from about 14.5 million users seven years ago), and that even though alcohol is legal for those over twenty-one and illegal for those under twenty-one, still some 25 percent of sixteen- and seventeen-year-olds and some 46 percent of those eighteen to twenty are current drinkers of alcohol; and even though cigarettes are legal for those over eighteen and illegal for those under eighteen, some 8.6 percent of those under eighteen smoke cigarettes.16 Why would anyone think the story of marijuana would be different? The argument that one can legalize a substance for only a certain age group is fallacious, and it has not been true of alcohol or tobacco. It is certain that legalization of marijuana will lead to more young people smoking marijuana. As Yavapai County Attorney Sheila Polk estimated, if Arizona legalized marijuana for recreational use along the lines of Colorado or Washington, thirty-two thousand more high school students in Arizona would smoke marijuana.17 In Colorado, where marijuana was legalized in January 2014 for recreational use for those over twenty-one, this report came out to too little notice:
While many Coloradoans rang in the new year by lining up outside marijuana dispensaries for a celebratory toke, some rehab centers are prepping for an increase of marijuana-addicted patients in 2014, especially teenage users. [Emphasis supplied.]
Although only people over the age of 21 are allowed to buy marijuana, psychiatrists and others remain concerned that teens could be most at risk for becoming addicted.
Dr. Christian Thurstone, a professor of psychiatry at the University of Colorado and the head of the teen rehab center Adolescent STEP: Substance Abuse Treatment Education & Prevention Program, said 95 percent of patient referrals to the program are for marijuana use.
After the law legalizing marijuana in Colorado passed in November, he started applying for a series of grants to expand his staff. He now has doubled his staff and still has a waiting list of patients.18
In a very short time, and despite program expansion, there developed a waiting list of teen patients seeking treatment for marijuana addiction.
For those who say, “Let’s experiment in a state or two and see,” the experiment has been tried, and the evidence is already coming in. How many more teens do we need to become marijuana addicts, how many more dropouts do we need, how many more psychosis patients do we want? How many more teens do we want moving on to even harder drugs?
Marijuana Can Lead to Use of Harder Drugs
This gets us to whether marijuana is a gateway drug. There is great debate on the question “Does marijuana lead to harder drugs?” We have tried to point out that marijuana itself, especially with ever-increasing THC levels, is a pretty hard drug as it stands. It is harmful and dangerous enough that the gateway argument should almost be academic, but it is not. It is real, and the effect has had real-life consequences, or perhaps we should say real-death consequences.
Marijuana certainly was a gateway drug for my nephew. His parents divorced when he was around 10. His father was/is a drug abuser and had spent time in prison. My nephew started smoking pot when he got a job at age 14 at a movie theater. From that point on he progressed to other drugs. By the time he was in high school he couldn’t go to school, he was snorting cocaine. His mother thought it was a phase he would get through and never took the drug abuse seriously. My Mother and I tried desperately to talk sense into my sister’s head with no results. By the time my nephew was 22 yrs old he had been doing heroin for almost a year. He was a dealer from his mother’s condo while she went to work at a judge’s office. Everyone in the condo area knew what was happening except for my sister (clueless). Within that year of heroin use he tried rehab but felt he was not like “those other people,” called his mother, and she brought him home. A few months later my nephew was dead from an overdose of heroin in the condo where he and my sister, his mother, lived.
This has caused so much grief for our entire families and for the grandmother (my mother) that for the last three years since his death I have spoken to my sister only a couple of times. Only recently she speaks to our mother. My sister will not admit any mistakes; she has stated that his death has “taught her so many things about life” and that she wouldn’t take back one moment of what has happened. My own two children who are now 21 and 24 are adamantly against drug use; they know it is a ticket to nowhere and that death or prison may await you one day—as it did their cousin.
Connie in PA
Recall the list of famous actors and musicians who recently died from drug overdoses that we mentioned earlier? Heath Ledger started with marijuana.19 Whitney Houston started with marijuana.20 Cory Monteith started with marijuana.21 Amy Winehouse started with marijuana.22 Kevin Sabet, echoing that radio caller we mentioned earlier, put it this way: “Although most people who use marijuana will not go on to use other drugs, it is indisputable that users of illegal drugs other than marijuana almost always begin with marijuana.”23 Study after study confirms this statement.
Dear Dr. Bennett:
My family’s experience: Our two daughters started smoking pot in middle school (1990’s) via the kids in school, both dropped out in the 9th grade. Then upgraded to Crack followed by ecstasy, meth/crank and then Oxycontin (Oxy) and any other pill they could find. Their husbands would grow in the spare bedrooms pot to smoke and sell to afford the Oxy and meth, adjacent to their children’s rooms.
My wife and I are educated small business owners, we never expected any of this nor do we have the knowledge or training to provide mental health for two drug addicted sociopaths, we have come to realize. It occurred to me lately that these new ultra high THC level marijuana breeds or what the kids refer to as (KB) Killbud mixed with any other narcotic is altering the children’s minds in such a destructive way the consequences are irreparable.
3 daughters have 5 children in our family (My wife and two sisters)
Three of the children started smoking Marijuana, all moved to any drug they could find and none can hold a job or be permitted at family gatherings due to violent behavior problems.
Two of the children are doing very well.
Of 5 grandchildren who lived in the POT smoking households, all need psychological help today.
After 23 years of fighting this battle and losing we broke all contact “Tough love” as the last weapon left in our arsenal.
So far so good is not a phrase I can ever use in this situation.
Phillip in FL
What we already know is that as the brain, especially the teen brain, gets accustomed to the marijuana high, it requires more and more of the drug to obtain the same or better effects. More or stronger marijuana will be sought. Not surprisingly, other drugs will also be sought to increase the high or better affect the pleasure centers of the brain. Additionally, we know that marijuana users tend to have more social interaction with peers who use marijuana and other drugs. Social acceptance of wide drug use by one’s peers may well contribute to acceptance of one’s own broader drug experimentation and use. Where there are other drugs, there is usually marijuana—as was found in Michael Jackson’s bedroom, and as was found at Philip Seymour Hoffman’s heroin dealer’s home.24
Marijuana need not lead one to other, harder drugs to be dangerous, though certain evidence points in that direction. A recent study out of the Yale School of Medicine found that 34 percent of those abusing prescription medications had previously used marijuana.25 Other studies have revealed, as the Journal of the American Medical Association reported, “that marijuana-using twins were four times more likely than their siblings to use cocaine and crack cocaine, and five times more likely to use hallucinogens such as LSD.” Another study found that 62 percent of the adults who first tried marijuana before they were fifteen were likely to go on to use cocaine. In contrast, only 1 percent of adults (or fewer) who never tried marijuana used heroin or cocaine.26
Do we really want to gamble with the future of our children by assuming that all these findings are overstated? Whatever the detractors have to say about the gateway effect of marijuana, we do not want the focus to be taken off the harms of marijuana itself. That is the point here. Despite what we indisputably know about marijuana, many refuse to accept it, or turn a blind eye. While any scientific study will have its detractors and cause debate, there is little to no debate about the fact that marijuana has a negative effect on the brain. No one person can seriously say marijuana use makes him or her more intelligent, more articulate, a better driver or operator of equipment, or more sober in judgment. Though it may help as an analgesic, as does almost any other well-known illegal drug (or alcohol), unquestionably it still has negative health consequences.
Hence the modern-day irony: we are at a crucial time in our nation’s history, engaged in a debate over a national health care system, and still struggling to improve schools whose graduates are behind their peers in many industrialized nations. The great education desiderata within the Democratic Party today is more funding for more early education programs. It is entirely inconsistent to be fighting for these programs at the same time that we mainstream the use of a substance that leads to poor academic performance, dropping out of school, and lower IQ. Similarly, we are at odds when we try to “bend the health care cost curve down,” as the phrase goes, while relaxing strictures on or encouraging the use of a substance that causes ED admissions, the need for treatment programs, and other negative consequences.
There is another modern-day cultural irony, as well. In 2014, when the drugstore chain CVS announced it would no longer sell tobacco products, its CEO stated, “Cigarettes have no place in an environment where health care is being delivered.”27 Health care advocates and many others lauded that bold move, even hoping other pharmacies and drugstores would follow suit. Walgreens, in fact, stated it would study the issue after CVS’s announcement.28Knowing that marijuana cigarettes contain many of the same carcinogenic substances and organic and nonorganic compounds as tobacco, that inhaling smoke is unhealthy, and that marijuana affects judgment and can lead to brain abnormalities, how can it be that we are expanding the availability of marijuana at the same time that we are celebrating the lack of availability of cigarettes? Why are cities and states cracking down on the use of trans fats and sugar products for teens and adults at the same time that they are facilitating greater marijuana availability?
Let us make no mistake about it, and even the proponents of legalization will admit this: legality leads to availability. Availability leads to and encourages far more use. Ethan Nadelmann, founder of the pro-legalization Drug Policy Alliance, admits more people in their “40s, 50s, 60s, 70s, 80s, and 90s” will start using more marijuana if it is legalized.29 He claims young people will not because they already have access to it. His point makes little sense. If young people have access to it, so do older people. Young people have access to it because they obtain it from older people. Just recently two fourth graders were caught selling marijuana at their elementary school in Colorado. They got it from their grandparents.30 As the Rand study we cited earlier found: legalization in California would cut the price of marijuana by as much as 80 percent and increase use by anywhere from 50 to 100 percent.31
Alcohol and Tobacco Are Harmful, So Why Would We Want to Make Another Harmful Drug More Available?
This takes us to the last point in the argument over alcohol, tobacco, and marijuana. Having clarified the premises of the argument that marijuana is not harmful, or not as harmful as alcohol or tobacco, let us assume the premise is right. Almost everybody would concede marijuana has some negative health consequences. Now imagine three bars in a graph. One is the quantifiable damage to individuals and society caused by alcohol. The second is the quantifiable damage to individuals and society caused by tobacco. The third is the quantifiable damage to individuals and society caused by marijuana. For the sake of analysis, let us concede the third bar is the shortest. Now, legalize marijuana. How will those bars be affected? Will alcohol damage go down? Will tobacco damage go down? Or will marijuana damage go up? The question answers itself and the point is this: legalizing another substance will not reduce the negative consequences of substances that are already legal. It will simply add one more product to the marketplace of damage done to individuals and society. If anything, the argument that alcohol and tobacco are more dangerous than marijuana suggests that we should further restrict or make illegal alcohol and tobacco, not make legal something else that is already damaging, as well. After all, as the prescription drug abuse problem has worsened, has alcohol or tobacco abuse receded? No. This is why Joe Califano calls us “a high society.” Once substance abuse becomes normalized, more substance abuse will take place. Once one substance is tolerated, society moves on to and will experiment with another.
Here is one further point about the studies we have referenced attesting to the dangers of marijuana. There is hardly a single study in social science that does not raise a debate within the field about its conclusions or methodology. There will be analysts who poke holes in all kinds of research. This is true of research on anything from crime reduction procedures to measuring intelligence to the surveys on political candidates for office. It is true of market analysis and it is true of automobile safety projections. It is true of predictions about gas prices and it is true of every form of medical research. It is also true of studies of marijuana and its effects on everything from the brain to the lungs. But here is the ultimate question about marijuana research: is half of it true? Is 10 percent of it true? Is any of it possibly true?
Taking the most skeptical view: if it is possibly true that marijuana use can lead to psychosis, if it is possibly true that marijuana use can lead to lung damage, if it is possibly true that marijuana use can lower IQ, if it is possibly true that marijuana use can lead to cardiac problems, why would society gamble with it? What responsible parent would hear a physician say, “Your child could benefit from using marijuana but you should know, there are some studies that show marijuana can cause psychosis, lung damage, heart problems, and permanent damage to your child’s brain,” and disregard those warnings? Even if none of this were true, we know marijuana is an intoxicant that more and more youth are using. At the most common sense level, with all the challenges we face from alcohol, tobacco, and other legal substances that end up in the hands of children, does it make sense to make available one more? It simply is not a good idea, indeed it is morally criminal, to facilitate inebriation and harm over sobriety and health.
States’ Rights and the Libertarians
Now let’s address the states’ rights and libertarian arguments. Oddly, we find an agreement between left and right in America on this: when it comes to marijuana, many on the left of the political spectrum advance the states’ rights argument, though they do not believe in states’ rights on almost any other issue. Recently, Republican California Congressman Dana Rohrabacher penned an op-ed for the National Review titled, “Let States Decide on Pot.”32Congressman Rohrabacher admits, “More studies tell us of serious psychological and physiological effects, such as a marijuana-induced tendency toward schizophrenia. But how is that not also the case with any number of prescribed or over-the-counter medicines now required to display voluminous safety warnings on their packaging?”33 That is a wrong implied conclusion. The better questions are, “Are you happy with what citizens in America are doing with prescription and over-the-counter medicines? Has the availability of those legal substances not caused an increase in their abuse?” Of course it has. Search the Internet for the phrase “prescription drugs epidemic.” About 1,810,000 pages is what Google turns up.34
Now let us take up the gravamen of Congressman Rohrabacher’s article: “Call me a hopeless Friedmanite [follower of Milton Friedman], but I am convinced a freer market will work out safety standards and a way to publicize them. Why wouldn’t it? Ultimately, individuals do hold their fates in their own hands; legal deterrence always falls short.”35 Does it? Does legal deterrence fall short in anything? Or does it just fall short of 100 percent compliance? As stated earlier, burglary is illegal, we spend a lot of money as a society preventing it, and it still happens. This does not lead us to the conclusion that we should spend less money and effort trying to prevent it. There would be more burglary if we did. The same can be said of almost any other crime—state or federal—that we can think of.
The essence of the states’ rights and libertarian arguments boils down to this: it should not be the government’s business to regulate what people want to do with their own bodies or safety. Of course most do not accept such an argument when it comes to building safety codes, child safety seats, or seat belts and airbags in their own cars. Bodily safety has frequently met the test of being necessarily the province of government enforcement. So, too, have drugs and medicine—at least since the beginning of the last century with the passage of the Pure Food and Drug Act, which tried to stamp out snake oil and the non-uniform processing, manufacturing, and peddling of “drugs” with little, no, or dangerous value.36 With marijuana use, we seem to take a holiday from the understanding that a product can be marketed and actually be harmful—even when it is labeled as therapeutic or medicinal. Unlike most other things that the government regulates for safety purposes, drugs like marijuana are not the province of just one individual making a decision for him- or herself. Nor are they the province of one state. As Supreme Court Justice and states’ rights proponent Antonin Scalia put it, “Drugs like marijuana are fungible commodities… Marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.”37 This is precisely why we see Colorado adolescents in addiction rehab facilities: because of marijuana they obtained from adults who first obtained marijuana from a legal dispensary. This is precisely why we see adolescents from other states in addiction rehab facilities, having obtained marijuana whose point of sale was in Colorado.
Of course, as citizens of the United States who love their Constitution, we are all for states’ rights and less government intrusion into the lives of all Americans. We support a state’s right to make policy determinations for its citizens, but it is not a state’s right to engage in a policy decision that renders a nullity another state’s determination on the same or a similar policy. That is the true nullification at play here. As discussed earlier, Romneycare affected only the citizens of Massachusetts. Marijuana legalization and “medical marijuana” are having negative impacts on other states that have chosen not to legalize marijuana. As reported by the Rocky Mountain High Intensity Drug Trafficking Area in 2012:
• In 2012 there were 274 Colorado interdiction seizures of marijuana destined for other states, compared to fifty-four in 2005. This is a 407 percent increase.
• Of the 274 seizures in 2012, thirty-seven different states had been destined to receive marijuana from Colorado. The most common destinations were Kansas (thirty-seven), Missouri (thirty), Illinois (twenty-two), Texas (eighteen), Wisconsin (eighteen), Florida (sixteen), and Nebraska (thirteen). There were some seizures in which the destination state was unknown.
• From 2009 to 2012, compared to 2005 to 2008, the average number of interdiction seizures per year involving Colorado marijuana more than quadrupled from 52.2 to 242.1.
• From 2009 to 2012, compared to 2005 to 2008, the total average number of pounds of Colorado marijuana seized from interdictions increased by 77 percent from an average of 2,220 pounds to 3,937.
• In 2012, 7,008 pounds of Colorado marijuana that were destined for other states in the country were seized by interdictions.38
If California were to enact a policy that negatively affected Arizona or Nevada, California could not very well claim it had a state’s right to enact that policy, any more than a homeowner can turn his house into a 24/7 party club that bothers the neighbors and maintain it is his personal, private property right to do so—especially when that choice is in conflict with the federal law. Oliver Wendell Holmes’s notion that a person’s right to swing his arm ends at another person’s nose used to be a common sense recognition of rights and liberties, state and personal. Unfortunately, marijuana has changed that. States that do not want it are robbed of their choice to keep marijuana illegal—their state’s right—by those that want to legalize marijuana. Those that do cannot escape the argument that their decisions have at least some negative effects. In other words, the states that accept “medical marijuana” or recreational marijuana must admit, just as the National Review editors admit, that with legalized marijuana, “Colorado’s legal drug dealers inevitably will end up supplying black markets in neighboring prohibition states.” So much for the rights of states that want none of this, or as little of it as possible.
There is one point that needs to be made about states’ rights—it is invoked by those on both sides of the political aisle when it is a convenient argument for them. Conservatives, for example, who usually speak the most forcefully about states’ rights, may not do so when the issue is the outlawing of certain abortion procedures. Even the greatest of conservative states’ rights advocates, Congressman, and former Republican presidential candidate, Ron Paul voted for the federal ban on partial birth abortions, even though Congressional authority for the ban was based on the Commerce Clause. Congressman Paul did argue he had philosophical problems with his vote, but in the end, he did vote for the ban because he said it would have “the possibility of saving innocent human life” (emphasis supplied).39 Even for Dr. Paul, “the possibility” of saving innocent human life and health was a legitimate primary concern trumping states’ rights.
On the liberal side, rarely do we find arguments on behalf of states’ rights outside of the issue of marijuana—we do not find them with regard to illegal immigration or abortion rights or nearly anything else we can think of. Those liberals that do claim to support a state’s right to legalize marijuana rarely support a state’s autonomy on any other issue (as but one example, see how aggressive the battle against Arizona’s right to curb illegal immigration has been). As we say, the argument is usually one of convenience—and it does not have a very good legacy, invoked most frequently, as it has been in the past two centuries by Southern Democrats, on behalf of states to avoid and void civil rights laws.
What of the libertarian argument that adults should be able to decide for themselves what they wish to consume and what they want to avoid? There are huge economic and social costs that will be borne by everyone, not just the consumer. These include increased health care and treatment costs, lost productivity and absenteeism, work-related accidents, drugged-driving injuries and deaths, and the painful effects of addiction on family members. Each of these costs implicate interstate concerns and federal monies. As we already know, alcohol certainly has substantially contributed to added costs in each of these categories, and tobacco contributes greatly to health care costs. While we may never be able to fully reverse the burdens imposed on society by alcohol and tobacco users, that is hardly a reason to heap on significantly more costs by legalizing marijuana so that some people can indulge their high in the name of freedom.
All of this gets us to the major point of the libertarian and states’ rights argument: What is the ultimate right being argued for? What is the philosophical price of not granting it? Outside of the limited medical usage that may need to be met, and which can have a federal protocol, at the end of the day the right is, simply put, a right to get and be stoned. This, it seems to us, is a rather ridiculous right upon which to charge a hill. If the right is not granted, after all, what is truly lost? Now ask yourself, if the right is granted, given the expanded adult and adolescent use of marijuana that will result from further legalization, what will be gained… or truly lost? In other words, were Americans really less free, were Coloradans less free, in 2001 or 2013 (the years before medical marijuana and recreational marijuana were fully implemented)? And have the costs—higher rates of use, higher rates of vehicular fatalities where cannabis was present, greater expulsion and suspension rate—of that freedom since then been worth it?
Our view is perhaps best summarized by Professor Jonathan Caulkins in Marijuana Legalization: What Everyone Needs to Know. He wrote:
About half of all days of marijuana use come from people who self-report enough use-related problems to meet criteria for substance abuse or dependence with respect to marijuana or another substance. Does the happiness a controlled user derives from using marijuana on a typical day offset the unhappiness of someone else spending a day harmed by and/or struggling to control problem drug use? In my opinion, the answer is no. In a free society there are plenty of other ways to have fun without insisting on a right to use something that becomes a stumbling block for others.40
I generally agree with the libertarian notions of letting people harm themselves if that’s what they choose: but only to a point. I also believe people can be fooled; we are heuristic decision makers, not mechanical optimizers. Certain products and activities fool a sizable minority of us. For those special cases, I think the majority who would use responsibly ought to be willing to give up their fun to protect the minority who would not.41
Ultimately, however, not even this is the main point on states’ rights and marijuana. The main point is logic. There is not a single logical argument on behalf of a state’s regulating or deciding for itself the legality of marijuana that is not also true of cocaine, heroin, or prescription drugs. If a state has the right to regulate marijuana, why does it not have the right to decide for itself how to regulate—or even whether to regulate—cocaine? Or, for that matter, Oxycontin? Furthermore, it simply is a fallacy, as we have seen with Colorado and her neighboring states, to believe that one state can legalize marijuana without its having an effect on other states. Colorado’s recreational marijuana, as well as medicinal marijuana, is regularly sold to people from other states and found in other states; and Colorado’s neighboring state sheriffs are pulling over and arresting more and more drugged drivers coming out of Colorado. What Colorado does with respect to marijuana does not stay in Colorado. The same is true of every other state. At the end of the day, there is no logical or rational state’s right to create its own drug policy—not when the field of law is preempted by federal legislation. There truly can be either one set of laws on drugs or fifty. We have yet to find a doctor or a US Attorney who thinks it a good idea for there to be fifty regulatory regimes for drugs.